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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. AMANDO GOMEZ CRUZ, Defendant and Appellant.


Decided: January 17, 2012

 * APPEAL from a judgment of the Superior Court of Fresno County.   Dale Ikeda, Judge.   Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.



Appellant, Amando Gomez Cruz, pled no contest to attempted murder (Pen.Code, §§ 664, 187, subd. (a)) 1 and admitted a great bodily injury enhancement (§ 12022.7, subd. (e)).

On December 21, 2010, the court sentenced Cruz to an aggregate term of 11 years, the middle term of seven years on his attempted murder conviction and the middle term of four years on the great bodily injury enhancement.

On appeal, Cruz contends:  1) the court erred when it imposed a $296 probation report fee;  and 2) he is entitled to additional presentence custody credit.   We will find merit to this latter contention and modify the judgment accordingly.   In all other respects we affirm.

On August 26, 2010, during an argument with his wife, Cruz stabbed her 14 times in her upper torso.   When his 15–year–old daughter tried to get between them, she was also injured.   Cruz was arrested the following day and told police officers that he stabbed his wife because of all the things she put him through.


The Probation Report Fee

At Cruz's sentencing hearing, the court, without objection, ordered him to pay a $296 probation report preparation fee pursuant to section 1203.1b. Cruz contends the court erred in imposing this fee because the evidence is insufficient to show that:  1) $296 is the reasonable cost of preparing the report;  and 2) he had the ability to pay this amount.   We will find that Cruz forfeited these claims on appeal.

Section 1203.1b, subdivision (a) provides:

“In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost ․ of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203,․  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.” (§ 1203.1b, subd. (a), italics added.)

In People v. Scott (1994) 9 Cal.4th 331 (Scott ), the Supreme Court held:

“[T]he [forfeiture] doctrine ․ [applies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices.   Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.”  (Scott, supra, 9 Cal.4th at p. 353.)

“In essence, claims deemed [forfeited] on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.”  (Scott, supra, 9 Cal.4th at p. 354, italics added.)

In People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis ), the court relied on Scott to hold that the forfeiture doctrine applied to a claim that the court imposed a probation report preparation fee pursuant to section 1203.1b without a defense objection and without a determination of the defendant's ability to pay.   In People v. Butler (2003) 31 Cal.4th 1119 (Butler ), the Supreme Court held that a defendant can raise, without a prior objection, a claim that the finding of probable cause to require HIV testing is not supported by substantial evidence.  (Butler, at pp. 1126–1127.)   However, in his concurring opinion, Justice Baxter, joined by Justice Chin, wrote separately “only to make explicit what is implicit in the majority opinion. [¶] ․ it remains the case that other sentencing determinations may not be challenged for the first time on appeal․  This includes claims that the record fails to demonstrate the defendant's ability to pay a fine [citations].”  (Butler, supra, 31 Cal.4th at p. 1130, conc. opn. of Baxter, J.) In accord with the above authorities, we conclude that Cruz forfeited his challenge to the $296 probation report preparation fee by his failure to object to this fee in the trial court.

Cruz cites People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco ), to contend that he did not forfeit his right to raise this issue on appeal.   In Pacheco, the Sixth District addressed defendant's claims that the trial court erroneously imposed various statutory fees, including a $64 per month probation supervision fee under section 1203.1b, “without determining his ability to pay these fees, and that there [was] insufficient evidence to support any such determination.”  (Pacheco, supra, at p. 1397.)   Pacheco allowed the defendant to raise these issues on appeal, despite his failure to first object to the absence of an ability to pay determination in the trial court.   (Ibid.) Pacheco reasoned that since the defendant's claims were “based on the insufficiency of the evidence to support the order or judgment[,] ․ such claims do not require assertion in the court below to be preserved on appeal.   [Citations.]”  (Ibid.)

We agree with the general proposition in Pacheco that sufficiency of the evidence claims are preserved for appeal even in the absence of an objection at the trial level.   However, we find Pacheco distinguishable for several reasons.   First, the fees imposed in Pacheco were not for the costs of the preparation of the presentence probation report;  instead, the fees imposed were a criminal justice administration fee, a probation supervision fee, attorney fees, a court security fee, and a booking fee.  (Pacheco, supra, 187 Cal.App.4th at pp.   1396–1397.)   Second, the defendant in Pacheco was granted probation while the court here sentenced Cruz to state prison.  (Id. at p. 1396.)   Third, some of the fees in Pacheco were impermissibly imposed as conditions of the defendant's probation, which made them independently erroneous regardless of whether substantial evidence supported the amounts.   (Id. at pp.   1402–1404.)

Further, we decline to follow Pacheco on the issue as to Cruz's failure to object because we believe Pacheco is inconsistent with Butler and Valtakis and the authorities cited in those opinions.

Cruz is Entitled to an Additional Day of Presentence Custody Credit

The court awarded Cruz 133 days of presentence custody credit consisting of 117 days of presentence actual custody credit and 16 days of presentence conduct credit.   Cruz contends that he is entitled to an additional day of presentence conduct credit.   Respondent concedes and we agree.

Cruz was in presentence custody in this matter from August 27, 2010, through the date of his sentencing on December 21, 2010, for a total of 117 days.   Further, because Cruz was convicted of a violent felony (§ 667.5, subd. (c)(8) & (12)), he was limited to earning a maximum of 15 percent presentence conduct credit (§ 2933.1).   Therefore, the court should have awarded him 17 days of presentence conduct credit instead of 16 days for a total of 134 days of presentence custody credit (117 days x 15% = 17.55 days;  17 days + 117 days = 134 days).


Cruz is awarded a total of 134 days of presentence custody credit as calculated above.   The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation.   As modified, the judgment is affirmed.


FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.


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