People v. Vecchetti CA1/2 ( 2023 )

Filed 8/28/23 P. v. Vecchetti CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A167672
v.
JOSEPH ANTHONY VECCHETTI, (Humboldt County
Super. Ct. No. CR2201296B)
Defendant and Appellant.
Defendant Joseph Anthony Vecchetti appeals from a judgment after he
pleaded guilty to three drug-related offenses. Defendant’s court-appointed
counsel has asked this court to independently examine the record in
accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) to determine if
there are any arguable issues that require briefing. Counsel advised
defendant of his right to file a supplemental brief, and he did not do so. We
have independently reviewed the record in accordance with our Wende
obligations and find no meritorious issues. We thus affirm.
BACKGROUND
On May 3, 2022, the Humboldt County District Attorney filed a felony
complaint charging defendant with four counts of possessing controlled
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substances for sale: fentanyl (Health & Saf. Code, § 11351)1 (count 1); DMT
(dimethyltryptamine) (§ 11378) (count 2); ketamine (§ 11379.2) (count 3); and
methamphetamine (§ 11378) (count 4).2
On January 31, 2023, the parties informed the trial court that they had
reached a plea agreement. Although defendant was presumptively not
eligible for probation due to two prior felony convictions, the parties
stipulated that unusual circumstances existed to support a grant of probation
in this case. (Pen. Code, § 1203, subd. (e)(4); Cal. Rules of Court, rule 4.413.)
Pursuant to the plea agreement, defendant pled guilty to count 1 and newly
added misdemeanor counts of simple possession of methamphetamine and
DMT (§ 11377, subd. (a)) (counts 5 and 6, respectively), in exchange for the
dismissal of the remaining counts and a two-year term of probation subject to
certain terms and conditions. Those terms and conditions included a term of
90 days in county jail and payment of various fines, fees, and assessments in
amounts to be determined at sentencing.
On February 23, the probation report was filed and the court held the
sentencing hearing. Consistent with the plea agreement, the court granted
defendant probation for a term of two years3, conditioned among other things
a term of 90 days in jail. It also adopted the probation report’s
1 Further undesignated statutory references are to the Health and
Safety Code.
2 The complaint also charged a co-defendant with the same crimes, but
she is not appealing here.
3 On March 14, the court filed an order of probation, which indicates
that defendant was granted a probation term of three, rather than two, years.
On July 3, in response to a request by defendant’s appointed appellate
counsel pursuant to People v. Fares (1993) 16 Cal.App.4th 954, the trial court
issued an amended order of probation, which correctly reflects that defendant
was granted a probation term of two years.
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recommendations to impose the following fines and fees: a $300 restitution
fine (Pen. Code, § 1202.4); a $300 probation revocation fine that was stayed
unless probation was revoked (id., § 1202.44); three $40 court operations
assessments (id., § 1465.8); three $30 criminal conviction assessments (Gov.
Code, § 70373); a $205 criminal laboratory analysis fee, inclusive of penalty
assessments and surcharges (§ 11372.5); and a $685 drug program fee,
inclusive of penalty assessments and surcharges (§ 11372.7). The court
declined to impose a court fine under Penal Code section 672 based on
defendant’s inability to pay. Neither defendant nor his counsel objected to
any of the imposed fines, fees, and assessments.
On April 12, defendant filed a notice of appeal.
DISCUSSION
We have reviewed the record on appeal for any arguable issues.
Defendant was sentenced after guilty pleas, but did not obtain a
certificate of probable cause. Thus, any issues as to the validity of his pleas
are not before us. (Cal. Rules of Court, rule 8.304(b)(2); Pen. Code, § 1237.5.)
Even if they were, we would still find no arguable issues: defendant was
represented by counsel; he was properly advised before the plea; he
acknowledged and waived his rights; he personally entered the plea; and
there was a factual basis for it.
Further, the award of probation was consistent with the plea
agreement and the probationary terms and conditions were appropriate in
light of the nature of defendant’s offenses. As to the fines and fees imposed,
we see no reasonably arguable issues.
With regard to the court operations assessment, criminal conviction
assessment, and restitution fine, some courts have held that constitutional
protections make their imposition subject to a determination of the
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defendant’s ability to pay. (See, e.g., People v. Dueñas (2019) 30 Cal.App.5th
1157, 1168–1169 [due process prohibits the imposition of the fine and
assessments when the trial court determines that the defendant lacks the
ability to pay]; People v. Cowan (2020) 47 Cal.App.5th 32, 46, review granted
June 17, 2020, S261952 [reaching same conclusion based on Eighth
Amendment’s protection against excessive fines].) Also, with respect to the
drug program fee, section 11372.7 requires a consideration of an ability to
pay before imposing the fee. (§ 11372.7, subd. (b).)
Here, the trial court did not make express findings as to defendant’s
ability to pay the restitution fine, the court operations and criminal
conviction assessments, and the drug program fee. However, we presume
from the court’s silence that it was aware of the applicable law and thus
considered defendant’s ability to pay. (See People v. Nelson (2011) 51 Cal.4th
198, 227 [“ ‘[A]s the trial court was not obligated to make express findings
concerning his ability to pay, the absence of any findings does not
demonstrate it failed to consider this factor’ ”], citing People v. Gamache
(2010) 48 Cal.4th 347, 409; see also People v. Martinez (1998) 65 Cal.App.4th
1511, 1517 [applying presumption to trial court’s imposition of drug program
fee].) This presumption is particularly applicable here, as the court did not
impose one fine based on defendant’s inability to pay.
Additionally, defendant’s failure to object to the imposition of the
restitution fine, assessments, and drug program fee at sentencing forfeits his
right to challenge them on appeal. (See People v. Greeley (2021)
70 Cal.App.5th 609, 624, citing People v. Aguilar (2015) 60 Cal.4th 862, 864;
People v. Trujillo (2015) 60 Cal.4th 850, 859.)
Moreover, and in any event, substantial evidence supports the implied
finding that defendant had the ability to pay the fines, fees, and assessments.
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Defendant had a lengthy history of employment; accumulated some savings
that he was living off as of the time of sentencing; recently purchased a
recreational vehicle; and was supporting a drug habit. Also, although
defendant was unemployed and had some residual injuries from a prior
accident, the probation officer observed that defendant, who is 36 years old,
otherwise possessed “marketable job skills” and was therefore able to seek
and maintain gainful employment.
Having examined the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Stewart, P.J.
_________________________
Markman, J. *
People v. Vecchetti (A167672)
*Superior Court of Alameda County, Judge Michael Markman, sitting as assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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