People v. Boselly CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF31360
- Trial judge
- Poli Flores, Jr.
- Outcome
- modified — Affirmed as modified.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell
Analysis
The trial court imposed a $50 laboratory fee and ordered the defendant to pay probation supervision costs without making a finding of ability to pay, despite defense counsel's request to waive fees based on indigence. The Court of Appeal affirmed the judgment as modified, striking both the unauthorized laboratory fee and the probation supervision cost condition due to a lack of substantial evidence supporting an implied finding of ability to pay.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a $50 laboratory fee“The respondent properly agrees the fee was unauthorized. We will direct the court to strike the laboratory fee.” | unclear | error | agree with court agree with court |
Order to pay costs of probation supervision“We will find the record does not support any implied finding of ability to pay, and therefore we will order the trial court to strike this condition as well.” | substantial evidence | error | agree with court agree with court |
Authorities
- relied: People v. Pacheco (2010) 187 Cal.App.4th 1392 — A court's direct or implied finding of ability to pay must be supported by substantial evidence.
- relied: People v. Trujillo (2015) 60 Cal.4th 850 — The forfeiture doctrine applies where an appellant seeks to raise inability to pay fees for the first time on appeal, but does not require multiple efforts by defense counsel if the issue was raised below.
- relied: People v. McCurdy (2014) 59 Cal.4th 1063 — Substantial evidence is defined as evidence that is reasonable, credible, and of solid value.
The appellate opinion: sound — The opinion correctly applies the substantial evidence standard to the implied finding of ability to pay, noting the lack of evidence given the defendant's homelessness and lack of income. It also correctly distinguishes the forfeiture doctrine in Trujillo, finding that defense counsel adequately preserved the issue by raising it at sentencing.
How this analysis was made · dispute it
unusual dispositionAfter Matthew Boselly pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), the Imperial County Superior Court granted probation and, among other terms, imposed a $50 laboratory fee and ordered him to pay the costs of probation supervision without any express finding of ability to pay. The Court of Appeal struck the laboratory fee on the People's concession, rejected the People's forfeiture argument because defense counsel had expressly asked the court to waive fees based on indigence, found no substantial evidence supported an implied ability-to-pay finding under section 1203.1b, struck the probation-cost condition, and otherwise affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a $50 laboratory fee as a probation term in a non-drug (assault with a deadly weapon) case“The respondent properly agrees the fee was unauthorized. We will direct the court to strike the laboratory fee.” | unclear | error (statutory interpretation) | agree with court The opinion does not articulate a standard or cite the fee statute, but a laboratory analysis fee is tied to enumerated drug offenses, and the Attorney General conceded it was unauthorized for a section 245 conviction. An unauthorized fee is correctable on appeal regardless of objection, so striking it is the proper remedy. |
Order requiring Boselly to pay costs of probation supervision (Pen. Code, § 1203.1b) without an express ability-to-pay finding, over defense counsel's request to waive fees for indigence“In this case there is virtually no evidence that could support an implied finding that Boselly had or will have the ability to pay the costs of probation supervision.” | substantial evidence | error (fact finding unsupported) | agree with court Section 1203.1b, subdivision (e) requires an ability-to-pay determination, and under Pacheco an express or implied finding must rest on substantial evidence. The record showed only homelessness, no income beyond social security disability, suspended proceedings under section 1368, and a contemporaneous finding that Boselly could not pay appointed-counsel costs; the prosecution did not oppose waiver. The court correctly distinguished Trujillo, which applies forfeiture only where inability to pay is raised for the first time on appeal; here counsel expressly raised it below. The one debatable point is remedy: Pacheco and similar cases typically remand for an ability-to-pay hearing rather than striking the order outright, but on this record of unopposed indigence the appellate court's choice to strike is defensible. |
Authorities
- relied: People v. Pacheco (2010) 187 Cal.App.4th 1392 — An express or implied finding of ability to pay probation supervision costs under section 1203.1b must be supported by substantial evidence.
- relied: People v. Trujillo (2015) 60 Cal.4th 850 — A defendant who fails to raise inability to pay probation costs in the trial court forfeits the issue on appeal; the court distinguished it because counsel here expressly raised indigence below.
- relied: People v. McCurdy (2014) 59 Cal.4th 1063 — Substantial evidence is evidence that is reasonable, credible, and of solid value.
The appellate opinion: sound with gaps — The court correctly applied section 1203.1b and the substantial-evidence test, properly distinguished Trujillo's forfeiture holding because counsel expressly raised indigence and the prosecution did not object, and appropriately accepted the concession on the unauthorized lab fee. It did not explain why the remedy was to strike the probation-cost order outright rather than remand for the ability-to-pay hearing that Pacheco and the statute's procedure contemplate, and it did not cite the statute governing the laboratory fee.
Opinion
Filed 10/15/15 P. v. Boselly 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 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066810
Plaintiff and Respondent, v. (Super. Ct. No. JCF31360)
MATTHEW BOSELLY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Affirmed as modified.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Marilyn L.
George, Deputy Attorneys General, for Plaintiff and Respondent. Pursuant to a plea agreement, Matthew Boselly entered a no contest plea to one count of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)). Boselly was granted probation subject to certain terms and conditions.
Boselly challenges two of the probation conditions. First, he contends the $50 laboratory fee was unauthorized as this was not a drug case. The respondent properly agrees the fee was unauthorized. We will direct the court to strike the laboratory fee.
Boselly next contends the trial court erred in ordering him to pay the costs of probation supervision as there was no evidence of his ability to pay. The respondent argues the issue has been forfeited, however defense counsel expressly asked to waive fees due to Boselly's lack of ability to pay, a position with which the prosecution had no objection.
We will find the record does not support any implied finding of ability to pay, and therefore we will order the trial court to strike this condition as well.2
DISCUSSION
In order to impose the costs of probation supervision on a probationer, the court must make a finding that the person has the ability to pay. (§ 1203.1b, subd. (e).) The court's direct or implied finding of ability to pay must be supported by substantial evidence. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398; disapproved on other grounds in People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5 (Trujillo).)
1 All further statutory references are to the Penal Code unless otherwise specified.
2 The facts of the underlying offense have no bearing on the issues in this appeal. 2 At the sentencing hearing, defense counsel asked the court to waive fees because of Boselly's indigence. The only discussion of ability to pay occurred at the outset of the sentencing hearing:
"[Defense counsel]: Your honor, I would--I would also ask the court to consider waiving fines and fees to the extent permitted by law.
"Mr. Boselly is homeless. He lives in a tent off the coast of the Salton Sea. He doesn't have any income. It would be very difficult for him to pay these fines and fees.
"And I would also ask--he's technically on social security, but that's beside the point. The income status is still what it is."
The court then asked the prosecutor for comment. The prosecutor said: "We have no objection on the fees, if the court chooses to do that."
Otherwise the record shows Boselly is receiving disability income from social security. His mental state seems marginal since criminal proceedings were suspended under section 1368 on at least two occasions. The court made no express finding on ability to pay probation supervision costs and simply ordered Boselly to make payments on the cost of probation supervision. The court did find Boselly lacked the ability to pay the costs of appointed counsel.
Substantial evidence is often defined as " ' "evidence that is reasonable, credible and of solid value." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) In this case there is virtually no evidence that could support an implied finding that Boselly had or will have the ability to pay the costs of probation supervision. Therefore the order to make such payments is not supported by any substantial evidence.
3 We will turn next to respondent's position that the issue has been forfeited.
Although respondent recognizes defense counsel asked the court to waive fees based on lack of ability to pay, respondent argues such effort was not enough to avoid forfeiture.
Relying on Trujillo, supra, 60 Cal.4th 850, respondent argues Boselly should have done more to preserve the issue for appeal. We disagree.
First we do not believe the decision in Trujillo, supra, 60 Cal.4th 850 requires multiple efforts by defense counsel to raise the issue of a defendant's inability to pay the cost of probation supervision. The court did hold that the forfeiture doctrine does apply where an appellant seeks to raise inability to pay fees for the first time on appeal. (Id. at p. 857.) That is not our case.
Here the defense raises the issue of inability to pay fees due to disability, homelessness and lack of income. When asked to comment, the prosecution did not disagree. We wonder what else defense counsel should have done. The court found Boselly did not have the ability to pay defense counsel costs. The court made no comment about the probation costs. On this record we believe the defense placed the issue before the court. There is no basis for application of the forfeiture doctrine in this case.
DISPOSITION
The probation order is modified to strike the laboratory fee and to strike the condition requiring payment of probation supervision costs. The superior court is 4 directed to modify the probation order accordingly. In all other respects the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 5
Cites, in this corpus
- People v. Trujillo S213687 · 2015-01-12
- People v. McCurdy S061026 · 2014-08-14
- People v. Pacheco H034454 · 2010-09-21