People v. Savellano CA4/1

Filed 7/15/16 P. v. Savellano CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068798

Plaintiff and Respondent,

v. (Super. Ct. No. JCF35186)

MIGUEL ANGEL SAVELLANO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Imperial County, Ruth

Bermudez Montenegro, Judge. Affirmed.

Comar Law and D. Inder Comar, under appointment by the Court of Appeal, for

Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal, Collette Cavalier and Britton Lacy, Deputy Attorneys General, for

Plaintiff and Respondent.

This appeal challenges the trial court's imposition of six fees, fines and costs

during defendant Miguel Angel Savellano's sentencing. This matter arose after the
Imperial County District Attorney's office charged Savellano in a felony complaint with

selling or transporting marijuana (count 1: Health & Saf. Code, § 11360, subd. (a)) and

possessing marijuana for sale (count 2: Health & Saf. Code, § 11359). In late July 2015,

pursuant to a plea agreement, Savellano pleaded guilty to count 1 with the understanding

that the imposition of sentence would be suspended, he would be placed on formal

probation for three years subject to standard drug terms and a Fourth Amendment waiver,

he would serve 120 days in county jail, he faced up to $10,000 in fines, and the People

would move for dismissal of count 2. The parties stipulated that the facts set forth in the

Calexico Police Department's report served as the factual basis for the plea. The court

accepted Savellano's guilty plea and found he made a knowing, intelligent, and voluntary

waiver of his constitutional rights. Pursuant to the plea agreement, the People moved to

dismiss count 2, and the court granted the People's motion.

At the sentencing hearing in August 2015, the court suspended imposition of

sentence, placed Savellano on formal probation for a period of three years subject to

certain terms and conditions, sentenced him to 120 days in local custody, and ordered

him to pay various fees, fines, and costs.

On appeal, Savellano challenges the following six fees, fines and costs: (1) a $200

administrative fee for the reasonable cost of preparing the probation report (Pen. Code,1

§ 1203.lb, subd. (a)); (2) a $560 fine (Health & Saf. Code, § 11350); (3) a $25

administrative payment-collection-and-processing fee (§ 1203.1b, subd. (h)); (4) $25 per

1 All further statutory references are to the Penal Code unless otherwise specified.

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month for the reasonable cost of probation supervision (§ 1203.1b, subd. (a)); (5) a $7-

per-test drug testing fee (§ 1203.lab); and (6) $200 for the cost of his court-appointed

counsel (§ 987.8, subds. (b), (e)). He contends these fees, fines, and costs must be

reversed because (1) "the facts underlying [his] ability to pay were not found to be true

by a jury beyond a reasonable doubt, as required by the Sixth and Fourteenth

Amendments to the United States Constitution," and (2) there was no substantial

evidence that he has the ability to pay them. We affirm the judgment.

FACTUAL BACKGROUND2

On July 24, 2015, Border Patrol Officer M. Ponce searched Savellano at the

Calexico West Port of Entry after Savellano sought entry into the United States. Officer

Ponce discovered a package on Savellano's abdominal area. Savellano was restrained,

and a further search revealed 1.29 kilograms of marijuana in the package.

Calexico Police Department Officer J. C. Ramirez met with Savellano. Officer

Ramirez asked Savellano if he knew why he was being detained. Savellano replied,

"Yeah, because of the weed." After he was advised of his Miranda3 rights, Savellano

continued to speak about the incident and admitted he was going to be paid $150 to cross

the border with the marijuana, and he knew he had marijuana. Savellano was arrested

and transported to the county jail.

2 Because Savellano pleaded guilty to count 1, the following summary of the facts is
taken from the probation officer's report.

3 Miranda v. Arizona (1966) 384 U.S. 436.

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 DISCUSSION

I. SIXTH AMENDMENT CLAIM

Savellano first contends the fees, fines and costs he challenges must be reversed

because the court abused its discretion and violated his constitutional right to a jury under

the Sixth and Fourteenth Amendments to the United States Constitution by imposing

them without a jury finding that he had the financial ability to pay them. We reject this

contention.

A. Background

At the sentencing hearing, the court indicated it had read the sentencing report and

invited defense counsel and the prosecutor to comment. The following colloquy then

occurred in which defense counsel raised the issue of Savellano's ability to pay some of

the fees, fines and costs that the Imperial County Probation Department in its probation

report recommended the court order Savellano to pay:

"[DEFENSE COUNSEL]: Your Honor, we would ask the Court to
not follow the recommendations contained within the [probation]
report; specifically, I'm referring to Item 23,[4] page 1, line 1. In
review of Health and Safety Code Section 11350, the Court can only
order that fine if it finds . . . there is an ability to pay, otherwise the
Court is allowed under that section to convert it to community work
service. [¶] In this particular case, the only information contained
within the probation report is that [Savellano] supports himself and
his wife, and that he is a field worker. He does not have the ability,

4 Item No. 23 of the recommendation section of the probation report stated: "IT IS
FURTHER RECOMMENDED that [Savellano] be ordered to pay a penalty and
surcharge fee in the amount of $560.00 in accordance to Section 11350[] of the
California Health and Safety Code."

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 in addition to the $300 State Restitution Fine Fund[5] and other
mandated fines, to pay that additional fine. [¶] We would ask the
Court to convert it to community work service. [¶] We would ask
the Court, on those same grounds, to waive the preparation of the
[probation] report fee for $200 on page 10, Recommendation
Number 22.[6] [¶] Waive the fees for the services of the Public
Defender, Number 21.[7] [¶] I believe that Number 20[8] is
required by law. [¶] We ask the Court to waive Number 19[9] and
Number 18,[10] as there is no evidence contained within the report
that there is an ability to pay. [¶] On any other terms and
conditions, we would submit.

"[PROSECUTOR]: The People submit to the Court on fines and
fees.

5 Item No. 24 stated: "IT IS FURTHER RECOMMENDED that [Savellano] pay a
restitution fine in the amount of $300.00 to the State Restitution Fine Fund, payable
through the Probation Department, pursuant to the Provisions of Section 1202.4[,
subdivision] (b)."

6 Item No. 22 stated: "IT IS FURTHER RECOMMENDED that [Savellano] be
ordered to pay an administrative fee in the amount of $200.00 for the preparation of this
report, pursuant to County Ordinance 2.84.040 and [section] 1203.1b[, subdivision (a)]."

7 Item No. 21 stated: "IT IS FURTHER RECOMMENDED that [Savellano] be
found to have the ability to pay for the services of his court-appointed attorney, and that
an appropriate amount be set at $200.00."

8 Item No. 20 stated: "Pursuant to [section 1465.8, subdivision (a)(1)], [Savellano]
shall pay a Court Operations Fee in the amount of [$40]."

9 Item No. 19 stated: "IT IS FURTHER RECOMMENDED that [Savellano] be
ordered to pay for the reasonable costs of probation supervision in the amount of $25.00
per month, pursuant to County Ordinance 2.84.020 and [section] 1203.1b[, subdivision
(a)]."

10 Item No. 18 stated: "IT IS FURTHER RECOMMENDED that [Savellano] be
ordered to pay an administrative collection processing fee in the amount of $25.00,
pursuant to County Ordinance 2.84.050 and [section] 1203.1b[, subdivision (h)]."
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 "THE COURT: All right. Very good. [Savellano] will be placed on
three years formal probation. [¶] Imposition of sentence is
suspended. [¶] He is subject to the following terms and conditions:
[¶] He is ordered to serve 120 days in the Imperial County Jail. . . ."
(Italics added.)

After the court imposed numerous other terms and conditions of probation, it

ordered Savellano to pay (1) an Immediate Critical Needs Assessment criminal

conviction fee in the amount of $30 (Gov. Code, § 70373, subd. (a)(l)), (2) a drug testing

fee in the amount of $7 per test (§ 1203.1ab; County Ordinance No. 2.84.060), and (3) an

administrative collection processing fee in the amount of $25 (§ 1203.1b, subd. (h);

County Ordinance No. 2.84.050).

Defense counsel then interrupted the court to discuss whether there was evidence

of Savellano's ability to pay, and the following exchange occurred:

"[DEFENSE COUNSEL]: Your Honor, pursuant to the statute, can
the Court state the grounds as to where she is finding the evidence
o[f] an ability to pay?

"[PROSECUTOR]: Your Honor, I believe the only thing that the
Court has to cite to is if the Court is actually striking an inability to
pay.

"[DEFENSE COUNSEL]: Actually, I think the law is contrary. The
Court has to find an ability to pay at the time of sentencing in order
to justify the amount.

"THE COURT: As the probation report indicates, I believe they
refer to his financial condition as 'fair.' I find that he is able-bodied,
he is able to work. He says he has income from his farm labor work
as well as his wife's assistance.

"[DEFENSE COUNSEL]: I don't think that there is any evidence
that is contained within the report that states anything in regards to
hers. I think the Court can take judicial notice that field workers in
Imperial County are not paid all that well, although he does have

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 minimum income from that job and he's about to serve out another—
what did we say?—70 days in custody, therefore having no income
at all during that period of time.

"THE COURT: Your comments are noted."

The court then ordered Savellano to pay all of the remaining fees, fines, and costs

recommended by the probation department as outlined in the probation report.

Specifically, the court ordered Savellano to pay the following additional fees, fines, and

costs: (1) $25 per month for the reasonable cost of probation supervision (§ 1203.1b,

subd. (a)), (2) a $40 court operations fee (§ 1465.8, subd. (a)(l)), (3) $200 for the cost of

his court-appointed attorney's services, (4) a $200 administrative fee for the preparation

of the probation report (County Ordinance No. 2.84.040; § 1203.lb, subd. (a)), (5) a $560

penalty surcharge fee (Health & Saf. Code, § 11350), (6) a $300 restitution fine

(§ 1202,4, subd. (b)), and (7) a $300 probation revocation restitution fine (§ 1202.44).

B. Analysis

Citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Southern

Union Co. v. United States (2012) __ U.S. __ [132 S.Ct. 2344] (Southern Union),

Savellano asserts the fees, fines and costs he challenges "must be reversed because the

facts underlying [his] ability to pay were not found to be true by a jury beyond a

reasonable doubt, as required by the Sixth and Fourteenth Amendments to the United

States Constitution."11 He also asserts that he "[pleaded] guilty to Count 1 of his

information, but he did not otherwise plead or admit to his financial condition"; the jury

11 Savellano does not contest the amounts of the fees, fines and costs he challenges.
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made no finding about his financial condition; and, thus, the court imposed the fees, fines

and costs "violating his Sixth Amendment right to a jury" because the court, not a jury,

made the determination he had the financial ability to pay the fees, fines and costs. These

assertions are unavailing.

We begin by noting that the Attorney General claims Savellano forfeited the right

to challenge on appeal the fees, fines and costs at issue here because he did not object to

them at sentencing. Savellano claims the forfeiture rule does not apply. Even if we were

to assume forfeiture, we retain the discretion to review forfeited challenges. (People v.

McCullough (2013) 56 Cal.4th 589, 593 (McCullough) [appellate courts may "refrain

from applying the forfeiture bar"], citing In re S.B. (2004) 32 Cal.4th 1287, 1293

[appellate courts have discretion to review otherwise forfeited challenges].) We reach the

merits of Savellano's challenges.

In Apprendi, the United States Supreme Court held that, "[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

(Apprendi, supra, 530 U.S. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, the

Supreme Court explained that "the 'statutory maximum' for Apprendi purposes is the

maximum sentence a judge may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant." (Blakely, at p. 303.) "In other words, the

relevant 'statutory maximum' is not the maximum sentence a judge may impose after

finding additional facts, but the maximum he may impose without any additional

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findings." (Id. at pp. 303-304.) Thus, a court may not "inflict[] punishment that the

jury's verdict alone does not allow." (Id. at p. 304.)

In Southern Union, the Supreme Court also held that "the rule of Apprendi applies

to the imposition of criminal fines." (Southern Union, supra, 132 S.Ct. at p. 2357.)

However, as the Apprendi court explained, "nothing in [the common law and

constitutional history] suggests that it is impermissible for judges to exercise

discretion─taking into consideration various factors relating both to offense and

offender─in imposing a judgment within the range prescribed by statute." (Apprendi,

supra, 530 U.S. at p. 481.)

Here, the court was statutorily authorized not only to impose all six of the

challenged fees, fines and costs based on Savellano's guilty plea and his resulting

conviction of count 1, but also to determine whether Savellano had the financial ability to

pay them. Specifically, the court ordered Savellano to pay $200 for the preparation of the

probation report pursuant to section 1203.lb, subdivision (a). This statute authorizes a

court to order a convicted defendant to pay all or a portion of the reasonable cost of

conducting any presentence investigation and preparing any presentence report, and it

also provides "the court shall make a determination of the defendant's ability to pay and

the payment amount." (Ibid., italics added.) Thus, here, the court was statutorily

authorized to determine whether Savellano had the financial ability to pay $200 for the

preparation of the probation report.

The court also ordered Savellano to pay what the court referred to as a "penalty

and surcharge fee" in the amount of $560 pursuant to Health and Safety Code section

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11350. This statute authorizes a court to impose "a fee for the processing of payments

made in installments to the probation department pursuant to this section," but provides

the amount of the fee "shall not exceed [$75]." (Ibid.)

The court also ordered Savellano to pay $25 per month for the reasonable cost of

probation supervision pursuant to section 1203.lb, subdivision (a). This statute authorizes

"the court" to order a defendant who has been convicted of any specified drug offenses,

and who "has the financial ability" to pay, a "reasonable fee" for all or part of the costs

associated with substance abuse testing. (Ibid.). Thus, the court was statutorily

authorized to determine whether Savellano had the financial ability to pay the $7-per-test

cost of any substance abuse testing recommended by Savellano's probation officer.

Finally, the court ordered Savellano to pay $200 for the services of his court-

appointed attorney. Section 987.8 authorizes a court to order a defendant to pay all or a

portion of the reasonable cost of a public defender's legal assistance. (§ 987.8, subds. (b),

(e)(5)). Subdivision (b) of section 987.8 provides in part that "[t]he court may . . . make a

determination of the present ability of the defendant to pay all or a portion of the cost

thereof" (italics added). Subdivision (e) of section 987.8 provides that "[i]f the court

determines that the defendant has the present ability to pay all or a part of the cost, the

court shall set the amount to be reimbursed and order the defendant to pay the sum to the

county in the manner in which the court believes reasonable and compatible with the

defendant's financial ability." Thus, the court was statutorily authorized to determine

whether Savellano had the financial ability to pay $200 for the services of his court-

appointed attorney.

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 As is evident, none of the foregoing statutes provides or even suggests that the

determination of whether the defendant has the financial ability to pay these fees, fines

and costs should be submitted to a jury and proved beyond a reasonable doubt.

Savellano's claim that the court's imposition of the foregoing fees, fines and costs

without a jury's determination of his ability to pay them violated his Sixth Amendment

right to jury is necessarily premised on (1) his contention that the Apprendi rule applies,

and thus on (2) the implied contention that the court's factual determination that he had

the financial ability to pay them unlawfully increased the penalty for his crime beyond

the prescribed statutory maximum such that the determination should have been be

submitted to a jury and proved beyond a reasonable doubt. (See Apprendi, supra, 530

U.S. at p. 490.)

We conclude the court's factual determination that Savellano had the financial

ability to pay the challenged fees, fines and costs did not unlawfully increase the penalty

for his crime beyond the prescribed statutory maximum, and thus the rule in Apprendi,

supra, 530 U.S. at page 490, does not apply. As Savellano acknowledged both when he

signed and initialed the guilty plea form and when he pleaded guilty to count 1 at the

change of plea hearing, the maximum punishment he could receive as a result of his plea

included (among other things) four years in prison and up to $10,000 in what the court

referred to as "fines," which reasonably encompassed the various fees, fines and costs it

later imposed, including those challenged here. The total amount of the six fees, costs,

and fines Savellano challenges are well within the prescribed limits set both by his plea

agreement and by the statutory provisions (discussed, ante) under which the court

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imposed them. (See Pen. Code, §§ 987.8, subds. (b) & (e)(5), 1203.lab, 1203.1b, subds.

(a) & (h); Health & Saf. Code, § 11350, subd. (d)(l).) Specifically, based on Savellano's

conviction and the court's statutorily authorized determination that Savellano had the

financial ability to pay, the court ordered him to pay a total of $985 plus $25 per month

for the reasonable cost of probation supervision and a drug test fee of $7 per test.12 The

rule in Apprendi does not apply because the court's imposition of the challenged fees,

fines and costs did not unlawfully "increase[] the penalty for [his] crime beyond the

prescribed statutory maximum" (Apprendi, supra, 530 U.S. at p. 490).

Savellano's reliance on Southern Union, supra, 132 S.Ct. 2344 is misplaced. As

noted, Southern Union held that "the rule of Apprendi applies to the imposition of

criminal fines." (Id. at p. 2357.) However, Southern Union did not hold that the

Apprendi rule applies to the imposition of any and all criminal fines. In that case, a jury

convicted the defendant of one count of knowingly storing liquid mercury without a

permit in violation of the Resource Conservation and Recovery Act of 1976 (RCRA).

(Southern Union, at p. 2349.) The indictment charged, and the jury's verdict showed that

the jury found, that the defendant violated the RCRA from "'on or about September 19,

2002 until on or about October 19, 2004.'" (Ibid.) The statutory maximum fine was

$50,000 for each day the defendant violated the RCRA, and the court's jury instructions

12 In the interest of clarity, we reiterate that Savellano challenges the court's
imposition of (1) a $200 administrative fee for the reasonable cost of preparing the
probation report; (2) a $560 fine; (3) a $25 administrative payment-collection-and-
processing fee; (4) $200 for the cost of his court-appointed counsel; (5) $25 per month
for the reasonable cost of probation supervision; and (6) a $7-per-test drug testing fee.
12
permitted a conviction if the jury found even a one-day violation. (Ibid.) The trial court

concluded from the content and context of the verdict that the jury found a 762-day

violation and, at sentencing, it set a maximum potential fine of $38.1 million, from which

it imposed a fine of $6 million and a "'community service obligatio[n]'" of $12 million.

(Ibid.)

In Southern Union, the Supreme Court reversed the judgment, concluding that the

trial court's factual findings with respect to the number of days the defendant violated the

RCRA, which increased both the potential and actual fine the court imposed, violated

Apprendi because it enlarged the maximum punishment beyond what the jury's verdict

allowed. (Southern Union, supra, 132 S.Ct. at pp. 2352, 2357.) However, a critical

factor in the Supreme Court's analysis was the "significance of the fine from the

perspective of the Sixth Amendment's jury trial guarantee." (Id. at p. 2352, italics added.)

The high court explained that "[w]here a fine is so insubstantial that the underlying

offense is considered 'petty,' the Sixth Amendment right of jury trial is not triggered, and

no Apprendi issue arises." (Southern Union, at p. 2351, citing Muniz v. Hoffman (1975)

422 U.S. 454, 477 [$10,000 fine imposed on labor union does not entitle union to jury

trial]. The Supreme Court held that, "[w]here a fine is substantial enough to trigger [the

Sixth Amendment right to a jury trial], Apprendi applies in full." (Southern Union, at p.

2352.) Thus, stated differently, Southern Union holds that the rule in Apprendi does not

apply where a criminal fine is not substantial enough to trigger the Sixth Amendment

right to a jury trial. (Southern Union, at p. 2352.)

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 Here, Savellano's admitted crime of selling or transporting marijuana resulted in a

significant expenditure of judicial, prosecutorial, public defender, and probation

department resources. The fees, fines and costs Savellano challenges on appeal─a total

of $985 plus $25 per month for the reasonable cost of probation supervision and a drug

test fee of $7 per test─are not substantial enough to trigger the Sixth Amendment right to

a jury trial on the issue of whether Savellano has the financial ability to pay them. Thus,

we conclude the Apprendi rule does not apply and the court did not abuse its discretion or

commit constitutional error in determining that Savellano has the ability to pay the

challenged fees, fines and costs. (See Southern Union, supra, 132 S.Ct. at pp. 2351-

2352.)

II. SUFFICIENCY OF THE EVIDENCE

Savellano also contends the six challenged fines, fees and costs must be reversed

because "they are unsupported by substantial evidence" of his financial ability to pay

them. We reject this contention.

A. Applicable Legal Principles

"Practically speaking, determining a defendant's ability to pay a fee is much less

complex than is determining a defendant's sentence." (McCullough, supra, 56 Cal.4th at

p. 599.) A trial court's finding of a defendant's ability to pay may be implied, and it will

be upheld on appeal if supported by substantial evidence. (People v. Pacheco (2010) 187

Cal.App.4th 1392, 1398, disapproved on another ground in McCullough, supra, 56

Cal.4th at p. 599 & People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5.)

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 Substantial evidence is evidence sufficient to deserve consideration by the trier of

fact, that is, evidence that a reasonable trier of fact "could find persuasive." (People v.

Barton (1995) 12 Cal.4th 186, 201, fn. 8.) Under the deferential substantial evidence

standard of review, we must view the evidence in the light most favorable to the

judgment below, and we must presume in support of the judgment the existence of every

fact the trier could reasonably deduce from the evidence. (People v. Ochoa (1993) 6

Cal.4th 1199, 1206.) "The same standard of review applies to cases in which the

prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30

Cal.4th 342, 396.) Resolution of evidentiary conflicts is "the exclusive province of the

trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.)

B. Analysis

The court implicitly determined that Savellano had the financial ability to pay the

various fees, fines and costs the court ordered him to pay. Noting that the probation

report indicated Savellano's financial condition was "fair," the court stated, "I find that

[Savellano] is able-bodied, he is able to work." The court added, "He says he has income

from his farm labor as well as his wife's assistance."

The court's finding that Savellano has the financial ability to pay the challenged

fees, fines and costs is supported by substantial evidence. Savellano was interviewed by

a deputy probation officer prior to the sentencing hearing on August 28, 2015. The

probation officer's report shows that, at the time of sentencing, Savellano was 34 years of

age, a United States citizen, and a high school graduate who had been attending the

University of Phoenix. The probation report also shows Savellano was employed as a

15
farm worker, he "receiv[ed] support from employment and his wife," and he is a military

veteran who served in the United States Army with the rank of Specialist E4. In addition,

the probation report states that Savellano's "financial condition is fair due to his income

from farm labor and his wife's assistance," he "made no indication of any medical or

psychological issues," and he stated he was in "good health" and he "[did] not use any

drugs but does occasionally consume alcohol." According to the bail review filed by the

probation department on July 30, 2015, Savellano was residing at his mother's residence,

and prior to his incarceration he was employed full time and earned $350 per week.

"Ability to pay does not necessarily require existing employment or cash on hand."

(People v. Staley (1992) 10 Cal.App.4th 782, 785.) The foregoing undisputed facts set

forth in the probation report constitute substantial evidence that Savellano has the ability

to pay the challenged fees, fines and costs.

Savellano relies on People v. Verduzco (2012) 210 Cal.App.4th 1406, in which the

Court of Appeal stated, "While the statutory language does not mandate an express

finding of an ability to pay, the statute contains a presumption that those sentenced to

prison do not have the ability to pay." (Id. at p. 1421, italics added.) Savellano's reliance

on Verduzco is misplaced because, here, the court did not sentence him to a state prison

term; it sentenced him to 120 days in the county jail.

For all of the foregoing reasons, we affirm the judgment.

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 DISPOSITION

The judgment is affirmed.

NARES, J.
WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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