Opinion
F040724.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. XIONG VANG, Defendant and Appellant.
Marisa Nayfach, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On March 12, 2002, an information was filed in the Superior Court of Fresno County charging appellant Xiong Vang and codefendant Tong Lee with count I, receiving stolen property (Pen. Code, § 496, subd. (a)). Appellant pleaded not guilty.
On April 25, 2002, appellants jury trial began. On April 30, 2002, appellant was found guilty.
On May 30, 2002, the court placed appellant on probation for two years pursuant to various terms and conditions, including service of 180 days in county jail and payment of the costs of probation. The court set the matter for a review hearing on June 8, 2004, to consider reducing the offense to a misdemeanor.
On May 31, 2002, appellant filed a timely notice of appeal.
FACTS
On October 8, 2001, Bernabe Estrada drove to work at Sams Club on Blackstone and Nees in Fresno, and parked his car in the adjacent parking lot. Sometime between 5:00 p.m. and 6:00 p.m., his car was stolen from the parking lot. His car had distinctive tires and rims, which had been ordered from a catalog. The Pirelli tires cost $ 160 each, and the rims were powder-coated in white and had a star pattern with five spokes. The rims had been scratched and scuffed from Estradas normal use, and the centerpiece over the lug nuts had been removed. Estrada reported the stolen car to the police and described the distinctive tires and rims, and the location of the scratches on the wheels.
The police found Estradas car two days after it was stolen. The car had been stripped and the stereo system, speakers, half of the back seat, and the distinctive rims and tires were missing.
About one week after the theft, Estrada was using another vehicle and stopped at the intersection of Blackstone and Ashlan. A yellow Honda Civic hatchback stopped alongside Estradas car, and Estrada immediately recognized his distinctive tires and rims on the yellow Honda. Estrada was unable to clearly see the driver but obtained the license plate number, and also noticed the license plate frame said "Vangs Toy." Estrada informed the police about his observations.
In December 2001, California Highway Patrol (CHP) Officer Jason Daughrity was assigned to the case and investigated Estradas information. A computer search of the yellow Hondas license plate revealed the vehicle was registered to Soula Vang at an apartment on South Chance Avenue in Fresno. On December 20, 2001, CHP officers went to the apartment and observed the yellow Honda parked in the carport. The vehicle had the distinctive tires and rims described by Estrada. Officer Daughrity returned to the apartment five or six times, but the car was no longer there and he was unable to contact the occupants of the apartment.
On January 31, 2002, CHP Officer Dennis Zeuner observed the yellow Honda at the intersection of Belmont and Cedar and conducted a traffic stop. Appellant Xiong Vang was the driver. The distinctive tires and rims were not on the car. Officer Daughrity responded to the scene, described the distinctive tires and rims to appellant, and asked what happened to them. Appellant replied he got rid of them two weeks ago and gave them to a friend because they were too wide for his car. Officer Daughrity asked appellant where he obtained the tires and rims, and appellant replied he purchased them from someone he only knew as "Booger."
When Officer Daughrity initially spoke with appellant, he was relaxed and talkative. When Daughrity asked about the tires and rims, appellant became evasive, his answers were short, and he wouldnt address Daughrity face-to-face. "He appeared to not want to speak about the subject matter I was wanting to ask him about."
Officer Daughrity informed appellant he was close to being arrested because the stolen tires and rims had been on his car, and Daughrity believed appellant was withholding pertinent information. Appellant replied he wanted to talk about what happened, and said he bought the tires and rims from "Booger" for $ 300 in October 2001. However, the wheels did not properly fit on his vehicle and he got rid of them. Appellant said "Boogers" real name was Adam Lee, he purchased the wheels at Lees house, and Lee was "a known car thief who has never been caught by law enforcement." Appellant wasnt sure if the wheels had been stolen but he had his suspicions. Appellant offered to lead the officers to Lees house. Daughrity testified appellant seemed to relax when he gave this information.
Daughrity did not arrest appellant that day because he was not in possession of the tires and rims, and he wanted to investigate his information about Adam Lee. However, Daughrity was unable to confirm appellants claim that Adam Lee was a known car thief.
On February 4, 2002, Officer Daughrity went to an apartment on South 10th Street in Fresno and observed a black Honda Accord equipped with Estradas distinctive tires and rims. Daughrity contacted the owner of the black Honda, codefendant Tong Lee. Daughrity advised Lee about his investigation of the stolen wheels, and Lee said he had no idea the wheels were stolen. Lee said he bought the wheels about five months ago from "Jose" for $ 400. He didnt know "Joses" last name or how to contact him. Daughrity testified Lee was very excited, his voice was elevated, and he acted very dramatic and upset as he paced around and kicked at the ground. Lee did not object when Daughrity said he was going to seize the wheels, but he was upset because he purchased stolen property and had been ripped off.
Officer Daughrity testified he was surprised by Tong Lees statement that he purchased the wheels from "Jose" five months ago, because Daughrity had seen the wheels on the yellow Honda when it was parked at the apartment building just one month ago. Daughrity confronted Lee with this conflict and accused him of lying. Lee finally told Daughrity that a friend came by his house about three weeks ago and offered to sell the wheels to him. Lee asked his friend why he was selling the tires, and the friend replied the wheels were stolen and he didnt want to be caught in possession of them. Lee paid $ 400 for the wheels, even though he knew they were stolen, because he liked them very much. Lee thought the wheels were worth approximately $ 1,200, and the only reason they were so cheap was because they were stolen. Officer Daughrity asked Lee if he knew about "Booger." Lee knew about this persons reputation as a car thief but didnt know him personally.
Officer Daughrity arrested Tong Lee for receiving stolen property. Appellant Xiong Vang was subsequently arrested and also charged with receiving stolen property. At trial, Estrada examined photographs of the wheels removed from Tong Lees car and identified the tires and rims as his property.
Codefendant Tong Lee testified he purchased the tires and rims from his cousin, appellant Xiong Vang, for $ 400 but "it was more of a gift." Appellant said the wheels didnt properly fit his car and he wanted to give them away. Appellant offered to give him the wheels, but Tong Lee knew the wheels were expensive and paid $ 400 "more out of respect to him than a payment." Lee testified he had no reason to suspect the wheels were stolen, that appellant was a car thief, or that he dealt with car thieves. Lee admitted he initially told an officer that he bought the wheels five months ago from "Jose," but he lied because he was scared and didnt want to be arrested. Lee testified that he actually bought the wheels from appellant just a few weeks before he was arrested.
Appellant Xiong Vang testified he purchased the tires and rims from Adam "Booger" Lee for $ 300, but he didnt suspect the wheels were stolen because Lee was a good person. Appellant testified he never told Officer Daughrity that he thought the wheels were stolen, or that Adam Lee was a car thief who never got caught. Appellant admitted he initially didnt tell Daughrity about Adam Lee, but he was scared and didnt know what to say. When appellant installed the wheels on his car, he realized the tires and rims were too wide but he kept them on his car for two months because he liked how they looked. Appellant sold the wheels to his cousin, codefendant Tong Lee, for $ 400.
In rebuttal, Officer Daughrity testified appellant said he bought the wheels from Adam "Booger" Lee, and that he was a car thief who had never been caught. Appellant said he gave the wheels to Tong Lee. Appellants information led Daughrity to Lees apartment, where he found the wheels mounted on Lees black Honda. Tong Lee admitted he bought the wheels from appellant, and that appellant sold them because appellant knew the wheels were stolen and didnt want to be caught with them. Tong Lee also knew that appellant bought the wheels from "Booger," and that "Booger" was a car thief. Tong Lee knew the wheels were stolen because appellant told him. Tong Lee believed the wheels were worth $ 1,200 but he only paid appellant $ 400 because they were stolen.
Appellant Xiong Vang was convicted of receiving stolen property, and placed on two years probation on various terms and conditions, including serving 180 days in county jail, and payment of probation fees and costs. The court set the matter for a review hearing in one year to consider reducing the offense to a misdemeanor.
DISCUSSION
I. Imposition of probation costs and fees.
On appeal, appellant contends the court improperly ordered him to pay probation costs and fees as a condition of probation. Appellant further argues the court should have conducted a hearing on his ability to pay before ordering him to pay such fees and costs. Appellant asserts that to the extent that defense counsels failure to object constitutes a waiver of these issues, counsel rendered ineffective assistance, which was prejudicial.
A. Background.
The probation report stated that appellant (born 1983) was single and lived with his mother. He graduated from high school and worked part-time as a chef at Whole Foods Market. He had been employed for eight months and made $ 7.50 per hour. The probation report recommended appellant be placed on probation on various terms and conditions, including payment of fees "for probation supervision, pre-sentence investigation report, treatment programs, and other probation costs, in accordance with the Fresno County Master Schedule of Fees and the Probation Sliding Fee Schedule, pursuant to the Penal Code."
Appellants statement to the probation officer confirmed he was employed by Whole Foods and also that he attended college. Appellant submitted a letter from his supervisor at Whole Foods, who confirmed his employment and stated appellant was reliable.
At the sentencing hearing, the court asked defense counsel if there were any corrections to the probation report. Counsel stated appellant still worked at Whole Foods, and now attended Fresno City College full time. Counsel did not object to any statements in the probation report. As discussed above, the court placed appellant on probation for two years on various terms and conditions, including service of 180 days in county jail and payment of fees "for probation supervision, pre-sentence investigation, treatment programs, and other probation costs in accordance with the Fresno County Master Schedule of Fees and the Probation Sliding Fee Schedule pursuant to the Penal Code." The court scheduled a review hearing in one year to determine whether the felony offense would be reduced to a misdemeanor, and further ordered that restitution would be reserved.
B. Conditions of probation.
Appellant contends the court improperly ordered him to pay probation fees and costs as a condition of his probation, and such an order is unauthorized and must be stricken. The trial court has broad discretion to impose conditions of probation to foster rehabilitation and reformation of the defendant, to protect the public and the victim, and to ensure that justice is done. (Pen. Code, § 1203.1, subd. (j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319; People v. Miller (1989) 208 Cal. App. 3d 1311, 1314, 256 Cal. Rptr. 587.) Penal Code section 1203.1, subdivision (a) authorizes a court to impose fines when it suspends the imposition or execution of sentence and grants probation. Section 1203.1b specifically authorizes the recoupment of certain costs incurred for probation, the preparation of preplea or presentence investigations and reports, and reports on the defendants amenability to probation. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070; People v. Washington (2002) 100 Cal.App.4th 590, 592.) The phrase "cost of any probation supervision" is not otherwise defined, but most certainly includes the normal cost of probation supervision. (People v. Washington,supra, 100 Cal.App.4th at p. 592.)
These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (Pen. Code, § 1203.1b, subd. (d); People v. Hart (1998) 65 Cal.App.4th 902, 906-907; People v. Washington, supra, 100 Cal.App.4th at p. 592.) However, probation costs are separate financial obligations, payment of which may not be imposed as conditions of probation. (People v. Hart , supra, 65 Cal.App.4th at pp. 906-907.) Thus, the trial court may order defendant to pay for costs of probation and other fees, but it may not condition defendants grant of probation upon payment thereof. (Ibid.) In Hart, the trial courts error in phrasing the payment of the probation supervision fee as a condition was easily remedied by deleting the condition and affirming the order itself as "simply an order entered at judgment" which "may be enforced as permitted in the relevant statutes." (People v. Hart , supra, 65 Cal.App.4th at p. 907.)
Appellant asserts and respondent concedes that the trial court improperly ordered him to pay probation fees and costs as a condition of probation. Accordingly, the courts order must be modified to delete the payment of such fees and costs as a condition of probation. The order must further be modified to specify that appellants payment of probation fees and costs is a separate financial obligation and an order entered at judgment. (People v. Hart, supra, 65 Cal.App.4th at p. 907.)
C. Ability to pay.
Appellant next contends that even if the court could have independently assessed him for probation fees and costs, such an assessment is still improper without finding that he had the ability to pay such fees and costs. Appellant contends the court was obliged to hold a hearing on his ability to pay prior to assessing such fees and costs, and there is no evidence in the instant record to support such a finding. Appellant argues that to the extent that defense counsels failure to object to the imposition of fees and costs waives this issue, counsels failure to object constitutes ineffective assistance.
"Penal Code section 1203.1b, subdivision (a) requires the probation officer to determine a defendants ability to pay all or a portion of the reasonable cost of probation supervision and probation report preparation. The statute also requires the probation officer to inform the defendant he has a right to have the court determine his ability to pay and the payment amount. The defendant may waive the right to such a determination only by a knowing and intelligent waiver. (Pen. Code, § 1203.1b, subd. (a).) Absent such a waiver, a court must conduct an evidentiary hearing. If the court determines the defendant is able to pay all or part of the costs, the court is required to set the amount of the payment and order the defendant to pay that amount to the county in a manner that is reasonable and compatible with the defendants financial ability. (Pen. Code, § 1203.1b, subd. (b).) The statute also provides for additional hearings during the period of probation to review the defendants ability to pay the probation costs. (Pen. Code, § 1203.1b, subd. (c).)" (People v. Hall (2002) 103 Cal.App.4th 889, 892-893; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070.)
A defendants failure to object to the courts imposition of fees constitutes a waiver of the claim that the court failed to conduct an ability to pay hearing. (People v. Valtakis, supra, 105 Cal.App.4th 1066, 1076.) If the reviewing court reaches the ability to pay issue, any error is not prejudicial unless there is a reasonable probability that, but for the error, the result would have been more favorable. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1076; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; Cal. Const., art. VI, § 13.) The reviewing court may examine the record to determine if there is evidence of the defendants ability to pay fees and costs. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1076.) If the defendants situation has changed since the fee was imposed, his remedy is not through an appeal but through the statute itself, which allows "additional hearings" on his ability to pay anytime during the probationary period. ( § 1203.1b, subd. (c); People v. Valtakis, supra, 105 Cal.App.4th at p. 1076.)
Appellant was on notice of the possible imposition of probation fees and costs based on the probation reports recommendation. The court invited appellant to object or request corrections to the probation report. Appellant did not object to the probation reports recommendation, or to the courts order, which imposed probation fees and costs. Thus, any objection to the imposition of such costs as a separate financial obligation is deemed waived. (People v. Valtakis, supra, 105 Cal.App.4th 1066, 1071.)
In any event, there is sufficient evidence in the record to reflect appellants ability to pay. Appellant had been employed part-time as a chef at Whole Foods Market for eight months, and continued to work there at the time of the sentencing hearing. He was not suffering from drug addiction or any physical incapacity. It appears highly unlikely that a remand to assess his financial circumstances at the time of the sentencing would show him to have been unable to pay the fees and costs of probation.
Appellant contends that it is unlikely he continued to hold his job given the courts order that he serve 180 days in jail as a condition of probation At the time of the sentencing hearing, however, appellant reaffirmed that he continued to be employed, and did not indicate that he could lose his job if he had to serve a period of confinement. If his situation has changed since the sentencing hearing, his remedy is not through this appeal but through the statute itself, which allows "additional hearings" on his ability to pay anytime during the probationary period ( § 1203.1b, subd. (c)) and modification of a judgment anytime upon showing a "change of circumstances" (id., subd. (f); fn. 2, ante).
II. Correction of the minute order.
Appellant states the minute order for the sentencing hearing must be corrected because it states that restitution would be "reserved as directed by P.O.," which is inconsistent with the trial courts oral pronouncement that "restitution would be reserved." Appellant states he has sent a letter to the trial court requesting correction of the minute order. This courts file reflects the trial court has since filed an amended minute order with the appropriate correction.
DISPOSITION
The conditions of probation recited in the trial courts minute order are modified to delete the condition that appellant pay fees "for probation supervision, pre-sentence investigation, 19 treatment programs, and other probation costs in accordance with the Fresno County Master Schedule of Fees and the Probation Sliding Fee Schedule pursuant to the Penal Code." However, the order that appellant pay such fees and costs is affirmed as an order entered at judgment that may be enforced as permitted in the relevant statutes. As so modified, the judgment (probation order) is affirmed. (People v. Hart, supra, 65 Cal.App.4th at p. 907.) --------------- Notes: Codefendant Tong Lee was also convicted of receiving stolen property, and placed on two years probation pursuant to various terms and conditions, including serving 180 days in county jail. The court also set a hearing in one year to determine whether to reduce the offense to a misdemeanor.