People v. Boselly CA4/1 ( 2015 )

Filed 10/15/15 P. v. Boselly CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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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.
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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
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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.
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