Filed 1/12/15 (this opn. precedes companion case, S213571, also filed 1/12/15)




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                                           S213687
           v.                        )
                                     )                                     Ct.App. 6 H038316
DONNA MARIE TRUJILLO,                )
                                     )                                    Santa Clara County
           Defendant and Appellant.  )                                  Super. Ct. No. C1199870
____________________________________)


        In this case, and in the companion case of People v. Aguilar (Jan. 12, 2015,
S213571) ___ Cal.4th ___ , we address questions related to People v. McCullough
(2013) 56 Cal.4th 589, which held that a defendant forfeits an appellate challenge
to the sufficiency of evidence supporting a jail booking fee imposed under
Government Code section 29550.2, subdivision (a), if the fee is not first
challenged in the trial court. Here we determine if the forfeiture rule applies in the
context of an order that defendant pay probation supervision and presentence
investigation fees imposed under Penal Code section 1203.1b,1 which prescribes
specific procedures for imposition of such fees. Although at trial defendant
neither objected to the fees nor asserted an inability to pay them, the Court of
Appeal reversed the order of payment and remanded with directions that the trial


1      Further statutory references are to the Penal Code unless otherwise
specified.
court follow the procedure prescribed in section 1203.1b before imposing the fees.
We granted the People‘s petition for review and now reverse.
                   FACTUAL AND PROCEDURAL BACKGROUND
       A jury found defendant guilty of buying, receiving, concealing, or
withholding stolen property in violation of section 496, subdivision (a), a felony.
The trial court referred defendant to the county department of adult probation
services for presentence investigation and preparation of a report. At the
sentencing hearing, the court suspended imposition of sentence and placed
defendant on probation. It imposed a restitution fine of $264 under section 1202.4
and imposed and stayed a probation revocation restitution fine in the same amount
under section 1202.44. It also imposed a $129.75 booking fee (Gov. Code,
§ 29550.1), a $40 court security fee (Pen. Code, § 1465.8), and a $30 criminal
conviction assessment fee (Gov. Code, § 70373). At issue in this case, the court,
in reliance on Penal Code section 1203.1b, imposed a presentence investigation
fee ―not to exceed $300‖ and a probation supervision fee ―not to exceed $110 per
month.‖ The court ordered defendant to report to the Department of Revenue
within 30 days for completion of a payment plan. Defendant, who had refused to
speak with the probation officer before sentencing and initially failed to appear at
the sentencing hearing, neither objected to the fines and fees nor asserted an
inability to pay them. On appeal, defendant challenged imposition of the booking
fee, asserting a lack of evidence of her ability to pay it, and the presentence
investigation and probation supervision fees on the ground that the trial court had
failed to determine her ability to pay them as required by section 1203.1b.
       The Court of Appeal held defendant‘s failure to object forfeited a challenge
to the booking fee (People v. McCullough, supra, 56 Cal.4th 589) (McCullough),
but reversed and remanded with directions to the trial court to follow the
procedure prescribed by section 1203.1b before imposing the costs of presentence
                                          2
investigation and probation supervision. Relying on its prior decision in People v.
Pacheco (2010) 187 Cal.App.4th 1392, disapproved in part in McCullough, the
court found dispositive the circumstance that nothing in the record showed that
either the trial court or the probation officer complied with section 1203.1b‘s
procedural safeguards; in its view, this deficiency compelled reversal even
assuming defendant forfeited the sufficiency of evidence argument pertaining to
probation-related costs.2
                                      ANALYSIS
     Section 1203.1b provides in relevant part that when a defendant is convicted
and granted probation or a conditional sentence, and has been the subject of any
preplea or presentence investigation and report, the probation officer—taking into
account any amount the defendant is ordered to pay in fines, assessments and
restitution—must make a determination of the defendant‘s ability to pay all or a
portion of the reasonable cost of probation supervision and the preparation of the
presentence report. (§ 1203.1b, subd. (a).) The statute directs the trial court to
order the defendant to appear before the probation officer for a determination of
the amount and manner of payments based on the defendant‘s ability to pay.
(Ibid.) ―The probation officer shall inform the defendant that the defendant is
entitled to a hearing, that includes the right to counsel, in which the court shall
make a determination of the defendant‘s ability to pay and the payment amount.
The defendant must waive the right to a determination by the court of his or her
ability to pay and the payment amount by a knowing and intelligent waiver.‖


2       In a portion of its disposition not at issue here, the court also ordered the
trial court to correct the sentencing minutes to reflect imposition of a $200
restitution fund fine (§ 1202.4) plus a 10 percent administrative penalty and a
probation revocation fine of $200 (§ 1202.44).


                                           3
(Ibid.) ―When the defendant fails to waive the right . . . to a determination by the
court of his or her ability to pay and the payment amount, the probation officer
shall refer the matter to the court for the scheduling of a hearing to determine the
amount of payment and the manner in which the payments shall be made.‖ (Id.,
subd. (b).) The court orders the defendant to pay the reasonable costs if it finds,
based on the probation officer‘s report, he or she has the ability to pay them.
(Ibid.)
     In this case, while preparing the presentence investigation report, the
probation officer contacted defendant by telephone to schedule an appointment,
but because defendant asserted her Fifth Amendment privilege and refused to be
interviewed, the report was completed without the benefit of defendant‘s input
regarding either the facts of the offense or her personal financial status, and
evidently without obtaining the knowing and intelligent waiver contemplated by
section 1203.1b, subdivision (a). At sentencing, defense counsel acknowledged
having received the presentence investigation report and raised no objection to it.
The court generally followed the report‘s recommendations respecting fees and
fines, of which defendant does not claim she lacked notice.3 The record contains



3        Preliminarily, we note that whether the sentencing court actually imposed
specific presentence investigation and probation supervision fees may be
debatable. After ordering defendant to report to the Department of Revenue
within 30 days ―for completion of a payment plan for the fines and fees that will
be imposed in this case,‖ the court stated: ―The defendant is also ordered to pay
. . . a presentencing investigation fee not to exceed $300 under [section 1203.1b]
of the Penal Code; and a probation supervision fee which is not to exceed $110
per month also under that code.‖ (Italics added.) Its order thus set an upper limit
for the fees and apparently contemplated the possibility of further proceedings to
fix their exact amount within defendant‘s ability to pay. For purposes of this
opinion, we assume the court‘s order fixed the challenged fees.


                                          4
no indication whether defendant reported to the Department of Revenue, as
ordered, or ever asserted an inability to pay the expenses of probation.
     ― ‗ ― ‗[A] constitutional right,‘ or a right of any other sort, ‗may be forfeited
in criminal as well as civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.‘ ‖ ‘ ‖ (McCullough, supra, 56
Cal.4th at p. 593, quoting In re Sheena K. (2007) 40 Cal.4th 875, 880–881.) With
certain exceptions,4 a defendant generally must preserve claims of trial error by
contemporaneous objection as a prerequisite to raising them on appeal. (See, e.g.,
Evid. Code, §§ 353 [erroneous admission of evidence], 354 [erroneous exclusion
of evidence]; People v. Williams (2013) 58 Cal.4th 197, 289 [juror misconduct];
People v. Collins (2010) 49 Cal.4th 175, 198 [prosecutorial misconduct]; People v.
Mills (2010) 48 Cal.4th 158, 170 [jury selection process]; People v. Hinton (2006)
37 Cal.4th 839, 898 [spectator misconduct]; People v. Bolden (2002) 29 Cal.4th
515, 556 [failure to give pinpoint instruction]; People v. Simon (2001) 25 Cal.4th
1082, 1086 [objections to venue]; Scott, supra, 9 Cal.4th at p. 352, fn. 15 [various
procedural errors in sentencing].)
     ―In general, the forfeiture rule applies in the context of sentencing as in other
areas of criminal law.‖ (In re Sheena K., supra, 40 Cal.4th at p. 881.) We first
applied the forfeiture rule in the sentencing context in People v. Welch (1993) 5
Cal.4th 228, 230 (Welch), where we held that objections to probation conditions
are forfeited for appeal if not voiced at trial. We later held in Scott, supra, 9
Cal.4th at pages 351–356, that claims of error in the trial court‘s exercise of its


4      E.g., section 1259 (instructional error affecting substantial rights); People v.
Butler (2003) 31 Cal.4th 1119, 1126 (sufficiency of evidence); People v. Williams
(1999) 21 Cal.4th 335, 344 (statute of limitations); People v. Scott (1994) 9
Cal.4th 331, 354 (Scott) (unlawful sentence).


                                           5
sentencing discretion are likewise forfeited if not raised at the sentencing hearing.
Such errors are essentially factual, and thus distinct from ― ‗clear and
correctable‘ ‖ legal errors that appellate courts can redress on appeal ―independent
of any factual issues presented by the record at sentencing.‖ (Id. at p. 354.) Most
recently, we applied this principle in McCullough, supra, 56 Cal.4th at page 591,
to hold that a defendant who fails to contest a booking fee under Government
Code section 29550.2 when the trial court imposes it forfeits the right to challenge
it on appeal.
     Without expressly characterizing as ―clear and correctable‖ legal error (Scott,
supra, 9 Cal.4th at p. 354) what it viewed as the trial court‘s noncompliance with
the procedural safeguards of section 1203.1b, the Court of Appeal below
concluded such noncompliance is not subject to the forfeiture rule. The People
contend the Court of Appeal erred because McCullough reflects a forfeiture rule of
general applicability regarding appellate challenges to a trial court‘s finding of the
defendant‘s ability to pay fees and fines in the amount ordered at sentencing. To
treat such challenges as equivalent to questions of the sufficiency of the evidence
of guilt, which are cognizable on appeal despite the lack of an objection below, the
People argue, is to ignore the reasons why appellate courts apply the forfeiture rule
to sentencing issues in general and questions of a defendant‘s ability to pay a fee
or fine in particular.
     As recognized in McCullough, ―[p]ractically speaking, determining a
defendant‘s ability to pay a fee is much less complex than is determining a
defendant‘s sentence. In Scott, the defendant contended that ‗a rule requiring a
contemporaneous objection‘ was ‗unrealistic‘ because counsel could not
reasonably be expected to ‗comprehend, remember, and respond to the various
sentencing factors and choices delivered orally by the court at the hearing.‘
[Citation.] We agreed that ‗pronouncement of sentence is a highly technical
                                          6
process encompassing a wide variety of procedural and substantive matters.‘
[Citation.] Nevertheless, we determined that the requirement that a defendant
contemporaneously object in order to challenge the sentencing order on appeal
advanced the goals of proper development of the record and judicial economy.
Given that imposition of a fee is of much less moment than imposition of
sentence, and that the goals advanced by judicial forfeiture [were equally relevant
in the fee context,] we [saw] no reason [in McCullough] to conclude that the rule
permitting challenges made to the sufficiency of the evidence to support a
judgment for the first time on appeal ‗should apply to a finding of‘ ability to pay a
booking fee under Government Code section 29550.2.‖ (McCullough, supra, 56
Cal.4th at p. 599.)
     Defendant distinguishes the present fees for the presentence investigation
report and probation supervision from the booking fee we addressed in
McCullough. She points out that, unlike Government Code section 29550.2, Penal
Code section 1203.1b imposes an express procedural requirement of a knowing
and intelligent waiver of the right to a court hearing on the defendant‘s ability to
pay, and contends the lack of such a waiver is clear and correctable legal error
cognizable on appeal despite the lack of a contemporaneous objection. (See
Welch, supra, 5 Cal.4th at p. 235.) In McCullough, she observes, we distinguished
the booking fee statute at issue in that case (Gov. Code, § 29550.2) from Penal
Code section 1203.1b on the basis that the latter contains procedural safeguards
absent from the former, reasoning that the case for forfeiture is ―particularly
strong‖ where the Legislature evidently deems a particular fine ―de minimis‖ and
prescribes no procedural safeguards or guidelines for its imposition.
(McCullough, supra, 56 Cal.4th at p. 599.) The presence of those safeguards in
section 1203.1b, she contends, requires a forfeiture rule different from that
articulated in McCullough.
                                          7
     Notwithstanding the statute‘s procedural requirements, we believe to place
the burden 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 is appropriate. Our reasoning in Scott applies by analogy here. ―Although
the court is required to impose sentence in a lawful manner, counsel is charged
with understanding, advocating, and clarifying permissible sentencing choices at
the hearing. Routine defects in the court‘s statement of reasons are easily
prevented and corrected if called to the court‘s attention.‖ (Scott, supra, 9 Cal.4th
at p. 353.) In the context of section 1203.1b, a defendant‘s making or failing to
make a knowing and intelligent waiver occurs before the probation officer, off the
record and outside the sentencing court‘s presence. Although the statute
contemplates that when the defendant fails to waive a court hearing, the probation
officer will refer the question of the defendant‘s ability to pay probation costs to
the court, the defendant—or his or her counsel—is in a better position than the
trial court to know whether the defendant is in fact invoking the right to a court
hearing. In Scott the existence, per se, of procedural safeguards in the sentencing
process, such as the right to counsel and to present evidence and argument, did not
prevent us from holding the forfeiture rule should apply with respect to the trial
court‘s discretionary sentencing choices. The same conclusion follows with
respect to the imposition of the fees challenged here.5
     Counsel in this case presumably was aware of the knowing and intelligent
waiver requirement and was in a position to advise defendant of the nature of the
rights the statute contemplated she would be requested to waive. Defendant, who
chose not to provide information regarding her financial status to the probation

5      People v. Pacheco, supra, 187 Cal.App.4th 1392 is further disapproved to
the extent it is inconsistent with this opinion.


                                          8
officer, has never claimed a lack of notice of the amounts of the fees the court
might impose. Represented by counsel, defendant made no objection at
sentencing to the amount of probation-related fees imposed or the process, or lack
thereof, by which she was ordered to pay them; nor does the record contain any
indication defendant later raised the question of her ability to pay in the probation
department or the sentencing court. No reason appears why defendant should be
permitted to appeal the sentencing court‘s imposition of such fees after having
thus tacitly assented below.
       We have acknowledged that the forfeiture doctrine has no application to the
―prophylactic advisements of applicable federal constitutional rights given a
defendant before his or her guilty plea is taken, which ‗helps ensure that the
―constitutional standards of voluntariness and intelligence are met.‖ ‘ ‖ (People v.
Palmer (2013) 58 Cal.4th 110, 116; see Boykin v. Alabama (1969) 395 U.S. 238,
243 (Boykin) [― ‗We cannot presume a waiver of these three important federal
rights [against compulsory self-incrimination, to trial by jury, and to confront
one‘s accusers,] from a silent record.‘ ‖].) Our decision today does not disturb
such settled exceptions to our forfeiture doctrine or suggest that knowing and
intelligent waiver rights may generally be forfeited by a mere failure to object.
Rather, the knowing and intelligent waiver at issue in this case is unusual.
Knowing and intelligent waivers are generally required when a criminal defendant
gives up ―any significant right‖ (People v. Johnson (2002) 28 Cal.4th 1050, 1055),
such as the constitutional rights relinquished by a plea of guilty (see Boykin,
supra, at p. 243), the right to counsel (Faretta v. California (1975) 422 U.S. 806,
835 (Faretta); § 987), and the right to appeal (People v. Panizzon (1996) 13
Cal.4th 68, 80). Here, no comparably significant right is at stake. Defendant has
not argued that any core autonomy interests or constitutional rights are implicated


                                          9
by the waiver of a judicial hearing on a defendant‘s ability to pay, and no similar
waiver is required for any of the analogous sentencing fines and fees.
       In other contexts, the active participation of the trial judge is encouraged to
ensure that the record adequately reflects a valid waiver of an important
constitutional right. As the high court reasoned in Boykin, supra, 395 U.S. at
pages 243–244, ―What is at stake for an accused facing death or imprisonment
demands the utmost solicitude of which courts are capable in canvassing the
matter with the accused to make sure he has a full understanding of what the plea
connotes and of its consequence. When the judge discharges that function, he
leaves a record adequate for any review that may be later sought [citations], and
forestalls the spin-off of collateral proceedings that seek to probe murky
memories.‖ (Fn. omitted.) In Boykin, the high court further made clear that a
silent record does not suffice to find a knowing and intelligent waiver. (Id. at
p. 243.) Similarly, Faretta requires advisements prior to a defendant‘s knowing
and intelligent waiver of the right to counsel ―so that the record will establish that
‗he knows what he is doing and his choice is made with eyes open.‘ ‖ (Faretta,
supra, 422 U.S. at p. 835.)
       In this case, such momentous rights are not at stake, and the legislative
scheme contemplates that the probation officer‘s advisements and defendant‘s
waiver of the right to a hearing will take place off the record, in the probation
department. (§ 1203.1b, subd. (a).) Thus, unlike cases in which either statute or
case law requires an affirmative showing on the record of the knowing and
intelligent nature of a waiver, in this context defendant‘s counsel is in the best
position to determine whether the defendant has knowingly and intelligently
waived the right to a court hearing. It follows that an appellate court is not well
positioned to review this question in the first instance.


                                          10
     Our conclusion finds further support in the Court of Appeal‘s decision in
People v. Valtakis (2003) 105 Cal.App.4th 1066. In Valtakis, the appellate court
addressed the same question of appellate forfeiture of a claim of noncompliance
with the procedural protections of section 1203.1b that we confront in this case
and found the claim forfeited. Tracing the history of the statute, Valtakis
concluded the 1995 amendment adding the knowing and intelligent waiver
requirement apparently represented the Legislature‘s response to People v. Phillips
(1994) 25 Cal.App.4th 62, which had rejected a defendant‘s argument that the trial
court denied him due process by requiring him to pay probation costs without
holding a hearing on those issues separate from other sentencing issues. (Valtakis,
supra, at pp. 1073–1074.) Valtakis concluded the amendment was intended to
create an antiwaiver rule at the trial court level, but found no basis for assuming
the Legislature intended to override our then-recent decisions in Welch, supra, 5
Cal.4th 228, and Scott, supra, 9 Cal.4th 331, which, as discussed above, had
required the defense to object at trial as a prerequisite to mounting an appellate
challenge to discretionary sentencing choices. (Valtakis, supra, at pp. 1074–
1075.) Our own review of legislative history materials relating to the 1995
amendment yields no different conclusion.
       A defendant who by forfeiture of a hearing is precluded from raising on
appeal the issue of ability to pay probation-related fees is not wholly without
recourse. In addition to conducting hearings on the initial probation-related fee
payment determination, ―[t]he court may hold additional hearings during the
probationary or conditional sentence period to review the defendant‘s financial
ability to pay the amount, and in the manner, as set by the probation officer, . . . or
as set by the court pursuant to‖ section 1203.1b. (§ 1203.1b, subd. (c).) Likewise,
during the pendency of the judgment rendered under section 1203.1b, the
defendant ―may petition the probation officer for a review of [his or her] financial
                                          11
ability to pay or the rendering court to modify or vacate its previous judgment on
the grounds of a change of circumstances with regard to the defendant‘s ability to
pay the judgment.‖ (Id., subd. (f).) The sentencing court as well as the probation
officer thus retains jurisdiction to address ability to pay issues throughout the
probationary period. Although the sentencing hearing is, in general, the proper
time for a defendant to assert all available procedural and factual contentions
relating to the trial court‘s sentencing choices, in an appropriate case a defendant‘s
discovery of trial counsel‘s failure properly to advise the defendant, before the
sentencing hearing, of the requirement of a waiver of a court hearing on ability to
pay probation costs may constitute a change of circumstances supporting a
postsentencing request for such a hearing.




                                          12
                                  DISPOSITION
     The judgment of the Court of Appeal is affirmed to the extent it ordered the
trial court to correct the sentencing minutes and reversed in all other respects, and
the case is remanded for further proceedings consistent with this opinion.
                                                  WERDEGAR, J.




WE CONCUR:


CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
BAXTER, J.*
FRANSON, J.**




* Retired Associate Justice of the Supreme Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

** Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.


                                         13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Trujillo
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 8/22/13 – 6th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S213687
Date Filed: January 12, 2015
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Linda R. Clark

__________________________________________________________________________________

Counsel:

Randall Conner, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Laurence K. Sullivan, Catherine A. Rivlin and Gregg E. Zywicke,
Deputy Attorneys General, for Plaintiff and Respondent.




                                                   1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Randall Conner
160 Franklin Street, Suite 210
Oakland, CA 94607
(510) 709-4066

Gregg E. Zywicke
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5961




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