Filed 10/22/20 P. v. Alejandre CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B300166
(Super. Ct. No. 1481234)
Plaintiff and Respondent, (Santa Barbara County)
v.
JOSIE JASMINE ALEJANDRE,
Defendant and Appellant.
Josie Jasmine Alejandre appeals the judgment entered
after she pleaded no contest to selling or transporting a controlled
substance (Health & Saf. Code, § 11379, subd. (a)) and admitted
the crime was committed for the benefit of a criminal street gang
(Pen. Code,1 § 186.22, subd. (b)(1)). The trial court placed her on
three years of probation with the condition that she serve 270
days in county jail. The court also ordered appellant to pay
various fines, fees and assessments, including a $30 court
All statutory references are to the Penal Code unless
1
otherwise stated.
facilities assessment (Gov. Code, § 70373), a $40 court operations
assessment (§ 1465.8), a $300 restitution fine (§ 1202.4), a $205
criminal laboratory analysis fee (Health & Saf. Code, § 11372.5),
a $615 drug program fee (id., § 11372.7), and a $1,375 probation
report preparation fee (§ 1203.1b). Appellant contends the court
erred in imposing these fines, fees and assessments without first
determining whether she had the ability to pay them. We affirm.
FACTS AND PROCEDURAL HISTORY
Because the appeal does not raise any issue regarding the
facts of the underlying offense, we do not include the customary
statement of facts. (See People v. White (1997) 55 Cal.App.4th
914, 916, fn. 2.) Prior to entering her no contest plea in
September 2016, appellant signed a felony plea form. A section of
the form entitled “Restitution, Statutory Fees, and Assessments”
states that “I understand that the court will order me to pay the
following amounts (if an amount is not yet known, ‘TBD’ for ‘to be
determined’ is entered next to the $); I must prepare financial
disclosure statements to assist the court in determining my
ability to pay; and refusal or failure to prepare the required
financial disclosure statements may be used against me at
sentencing.” “TBD” was listed next to all of the fines and fees
itemized in the plea form. Appellant signed next to the section to
acknowledge her agreement to its terms.
In a presentence report, appellant stated she was “willing
to comply with all terms set forth by the Court and is hopeful she
will be able to reside in the state of Arizona.” In June 2018
appellant had moved to Arizona and was receiving treatment for
cancer. Appellant was not currently employed due to her medical
issues, but received $700 in death benefits for her three children.
The report also stated that “[appellant’s] family provides
additional financial support.” Under a section entitled “Ability to
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Pay Fine/Restitution/Probation Fees,” the report states that
“[b]ased on the financial information provided by [appellant]” she
had the ability to pay “$30 per month toward the total cost of
probation services.” The report goes on to state that “[appellant]
was informed of her right to a Court hearing . . . for the Court to
determine her ability to pay probation fees. The ‘ability to pay’
determination is relevant to the booking fee (which is a condition
of probation), as well as [the] assessments set forth [in] the
probation order. [Appellant] did not waive that right. [¶] Once
[appellant] submits the proper paperwork, an ability to pay
hearing will be calendared.” (Italics added.)
The proposed sentencing and probation order provided that
appellant was to pay an undetermined amount of booking fees
“[b]ased on ability to pay.” The proposed order further provided
that appellant was to pay a $900 restitution fine pursuant to
section 1203.1 (number 8), a $900 probation revocation fine which
was stayed pending the successful completion of probation, a
$205 criminal laboratory analysis fee, and a $615 drug program
fee. An attachment listing additional assessments provided that
appellant would be required to pay $90 a month for the costs of
probation supervision, $1,375 for the costs of probation
investigation, a $30 court facilities assessment, a $40 court
operations assessment.
At the sentencing hearing, defense counsel stated: “As far
as the actual monetary fines[,] I would ask the court to stay the
fines–number 8–because she does not have the ability [to pay].
She’s barely making it as she goes. She doesn’t qualify for
programs because of the type of conviction that she has. And as
to the ongoing probation fees of $90 a month and $1,300 [sic] for
the preparation of the report, I would ask that those be stayed or
waived at this time because, again, she doesn’t have that . . . .”
3
In sentencing appellant, the court stated that it was
waiving any booking fees and reduced the restitution and
corresponding probation revocation fines to $300. The court also
reduced the monthly fee for the costs of probation from $90 to
$30. All of the other proposed fees and assessments were
imposed as stated in the order. The order also states that
appellant was to “be assessed regarding his/her financial ability
to pay probation fees as determined by the Probation Officer.”
DISCUSSION
Appellant contends the trial court erred in ordering her to
pay a $30 court facilities assessment, a $40 court operations
assessment, a $300 restitution fine, a $205 criminal laboratory
analysis fee, a $615 drug program fee, and a $1,375 probation
report preparation fee without first determining whether she had
the ability to pay them. We are not persuaded.2
2 We reject the People’s assertion that the appeal must be
dismissed for lack of jurisdiction pursuant to section 1237.2.
That section provides that “[a]n appeal may not be taken by the
defendant from a judgment of conviction on the ground of an
error in the imposition or calculation of fines, penalty
assessment, surcharges, fees, or costs unless the defendant first
presents the claim in the trial court at the time of sentencing, or
if the error is not discovered until after sentencing, the defendant
first makes a motion for correction in the trial court, which may
be made informally in writing. The trial court retains
jurisdiction after a notice of appeal has been filed to correct any
error in the imposition or calculation of fines, penalty
assessments, surcharges, fees, or costs upon the defendant’s
request for correction. This section only applies in cases where
the erroneous imposition or calculation of fines, penalty
assessments, surcharges, fees, or costs are the sole issue on
appeal.” Although appellant did not object at sentencing to all of
4
Appellant did not object to the $30 court facilities
assessment, the $40 court operations assessment, the $205
criminal laboratory analysis fee, or the $615 drug program fee.
She merely objected to the proposed $900 restitution and
probation revocation fines, the $1,375 probation report
preparation fee, and the proposed monthly probation costs of $90.
Moreover, People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
which held that court facility and court operations assessments
and the statutory minimum $300 restitution fine cannot be
imposed absent a finding of the defendant’s ability to pay, was
decided before the sentencing hearing in this case. Accordingly,
appellant forfeited her right to challenge the assessments, the
criminal laboratory analysis fee, and the drug program fee.
(People v. Frandsen (2019) 33 Cal.App.5th 1126; 1153-1155;
People v. Avila (2009) 46 Cal.4th 680, 728-729.)
Appellant also forfeited her right to challenge the $1,375
probation report preparation fee. Although section 1203.1b
provides that appellant had a right to a hearing on her ability to
pay the fee, the probation report made clear that such a hearing
would have been calendared with regard to both the probation
report preparation fee and the court facilities and court
operations assessments if appellant had “submit[ted] the proper
paperwork,” i.e, financial disclosure statements. As the People
note, the record does not establish that appellant complied with
this requirement. Moreover, appellant did not object to the
deprivation of a hearing regarding her ability to pay. “The
the fines, fees and assessments she challenges on appeal, she did
object to the restitution fine and probation report preparation fee
on the ground that she lacked the ability to pay them.
Accordingly, section 1237.2 does not apply here.
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burden [is] on the defendant to assert noncompliance with section
1203.1b in the trial court as a prerequisite to challenging the
imposition of probation costs on appeal.” (People v. Trujillo
(2015) 60 Cal.4th 850, 858.)
Finally, we reject appellant’s claim that the court erred in
imposing a $300 restitution fine without first determining her
ability to pay. The court initially proposed a $900 fine, but
reduced the fine to $300 after appellant raised the issue of her
ability to pay. The court thus effectively found that appellant
had the ability to pay the $300 fine. Moreover, in her felony plea
form appellant acknowledged her understanding that she was
required to “prepare financial disclosure statements to assist the
court in determining [her] ability to pay” and that her “refusal or
failure to prepare the required financial disclosure statements
may be used against [her] at sentencing.” Because appellant
apparently did not prepare financial disclosure statements, she
cannot be heard to complain that the court failed to to adequately
determine whether she had the ability to pay the $300 restitution
fine.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J. YEGAN, J.
6
Gustavo Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Christopher G. Sanchez, Deputy Attorney
General, for Plaintiff and Respondent.