P. v. Huey

Filed 10/30/07 P. v. Huey CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Lisa M. Chung, Judge. Affirmed.

William J. Capriola, appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Tommie Huey appeals from the order revoking his probation, contending that the court erred by ordering him to pay his costs of probation (Pen. Code,  1203.1b) because no such order was lawfully imposed when his probation was first granted. We affirm the courts order.

FACTS AND PROCEDURAL HISTORY

In February 2003, Tommie Huey pleaded no contest to one count each of false personation, perjury in connection with a drivers license application, and driving with a suspended or revoked license. In exchange, he was placed on probation for three years. Although the trial court was required to do so, the transcript of that sentencing hearing does not reflect an order that Huey appear before the probation officer to determine his liability for, and ability to pay, his costs of probation. (Pen. Code,  1203.1b, subd. (a).)^[1] Huey committed several more crimes while on probation and in June 2006 the court found that Huey had violated his probation and revoked it. As part of that order, the court directed Huey to pay any outstanding costs for supervising his probation. On appeal, Huey contends the court erred by ordering him to pay his outstanding probation costs because: (1) the trial courts initial failure to refer the issue to the probation officer or to include an order to pay such costs in February 2003 rendered the June 2006 order invalid; and (2) even if the order were valid, Huey could not be liable for probation costs after his probation was revoked.

DISCUSSION

When a defendant is placed on probation, the court shall order him to appear before the probation officer or the officers representative to determine the amount of defendants probation costs and the defendants ability to pay them. The probation officer shall inform the defendant that he is entitled to a court hearing and appointed counsel to determine those amounts. The defendant may waive the right to such a hearing if he does so knowingly and intelligently. ( 1203.1b, subd. (a).) If the defendant does not waive his hearing rights, then the probation officer shall refer the matter to the court to schedule and conduct the hearing. ( 1203.1b, subd. (b).) In such a case, once the court determines the proper amount, it shall order the defendant to pay that amount according to a payment schedule. ( 1203.1b, subds. (b)(2), (c) & (d).) The defendant is liable to pay all or a portion of the reasonable costs of supervising his probation, as well as the costs of certain pre-plea investigative reports. ( 1203.1b, subd. (a).)

The transcript from Hueys February 2003 sentencing hearing does not reflect an order by the judge referring Huey to the probation officer for purposes of fulfilling the requirements of section 1203.1b. Instead, the transcript quotes the court as stating that Huey is to report to the financial evaluator to determine his ability to pay for the services of appointed counsel.^[2] However, the clerks minute order states that Huey was referred to financial officer for determination of value of services rendered and ability to pay costs of court appointed counsel or public defender. On April 17, 2003, Huey signed a form waiving his right to a hearing regarding the cost of probation services. The form stated that the probation officer determined that Huey had the ability to pay $2,322 in costs as follows: an investigative report of $522, and 36 months of probation services at $50 a month, totaling $1,800.

The waiver form stated that Huey should sign if he agreed with this determination, and that if he disagreed, counsel would be appointed and a court hearing would be held. Huey acknowledged that he was freely and voluntarily waiving his right to a court hearing with full knowledge of that right. He then signed a financial agreement where he would pay $20 a month to pay off the $2,322, plus a $200 restitution fine and $70 in service charges and installment fees, for a total of $2,592. As of October 2005, Huey had made payments totaling $693.70 pursuant to that agreement.

Huey appears to attack the initial probation costs determination on two grounds: (1)  that the records of the 2003 hearing do not reflect an order referring him to the probation officer; and (2) that despite the waiver and fee agreement he signed, the court, not the probation officer, had to determine and impose his repayment obligations. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [clerk cannot supplement judgment actually pronounced by the court by adding a provision to the minute order or abstract of judgment].) Instead, according to Huey, the court had to impose those obligations. Respondent apparently concedes this point, but contends the remedy is not to strike Hueys remaining probation cost obligations but to remand the matter so the court can refer the matter to the probation officer as required by section 1203.1b, subdivision (a). Both parties have apparently misconstrued the procedures established by section 1203.1b. As we conclude below, if, as occurred here, a defendant waives his right to a court hearing, it is the probation officer who determines the amount of a defendants probation costs and a schedule for their repayment.

We begin with the well established rules of statutory construction.   The fundamental rule of statutory construction is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. . . . In doing so, we first look to the words of the statute and try to give effect to the usual, ordinary import of the language, at the same time not rendering any language mere surplusage. The words must be construed in context and in light of the nature and obvious purpose of the statute where they appear. . . . The statute  must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. . . .  . . . If the language of a statute is clear, we should not add to or alter it to accomplish a purpose which does not appear on the face of the statute or from its legislative history. [Citation.] Statutes must be harmonized, both internally and with each other. [Citation.] [Citation.] (People v. Towers (2007) 150 Cal.App.4th 1273, 1277-1278.)

Section 1203.1b states that the trial court must refer a defendant to the probation officer, who will determine the defendants obligations to pay for the costs of probation. The probation officer must then inform the defendant that the defendant may choose to have a court hearing to determine the proper amount. ( 1203.1b, subd. (a).) If the defendant does not waive the right to a court hearing, the statute supplies the rules and procedure for the court to follow in determining the defendants payment obligations. ( 1203.1b, subd. (b).) If practicable, the court shall order or the probation officer shall set payments pursuant to subdivisions (a) and (b) to be made on a monthly basis. ( 1203.1b, subd. (d), italics added.) At any time while a judgment rendered under this section is pending, the defendant may petition the probation officer for a review of the defendants financial ability to pay or the rendering court to modify or vacate its previous judgment on the grounds of a change of circumstances . . . . ( 1203.1b, subd. (f), italics added.) The italicized language above clearly describes a process where either the probation officer or the court determines, imposes, and modifies a defendants obligation to repay his costs of probation. When the statute is read as a whole, it expressly authorizes the probation officer to make that determination by himself if the defendant waives his right to a court hearing. (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070, 1074 [stating in dicta that determination of amount and ability to pay made by probation officer, not the court, if defendant waives right to separate court hearing].) That is precisely what happened here. On appeal, Huey does not contest the validity of his waiver of a trial court hearing, but merely insists that despite that waiver, the probation officer lacked authority to set and impose his probation cost repayment obligations. As just demonstrated, Huey is wrong.

Next, Huey contends that the probation cost award must be stricken because the 2003 court never referred him to the probation officer to determine those costs. We understand the parties confusion over the 2003 courts reference to a financial evaluator in order to determine the costs of appointed counsel. However those statements are interpreted, it is clear that Huey found his way to the probation officer in compliance with section 1203.1b. Assuming for discussions sake only that the trial court did not fulfill its mandatory statutory duty to make that referral, that error was either harmless or was waived once Huey went to the probation officer, acquiesced in his determination, waived his right to a court hearing, made at least $693 in payments pursuant to the schedule set by the probation officer, and failed to raise the issue with either the 2003 trial court or the trial court that revoked his probation in this case. (People v. Scott (1994) 9 Cal.4th 331, 354 [procedural defects in otherwise authorized sentence are waived if not raised below]; People v. Valdez (1995) 33 Cal.App.4th 1633, 1638-1639 [acquiescence without objection in trial courts procedural error waives the defect].)

Finally, Huey contends the trial court erred in June 2006 by ordering him to pay the balance of his outstanding, unpaid probation costs because his probation obligations were calculated based on a 36-month term, but his probation was terminated before he completed that term. In short, he contends he cannot be ordered to pay for probation services after the time his probation was revoked. Respondent agrees with this legal principle, contends the probation officers computation of $50 per month for the cost of supervision is adequate to determine the true amount, but suggests we remand for a clarification that Huey has no liability for the cost of probation services from the time his probation was revoked. We see no need to remand the matter. The courts order directed payment of Hueys unpaid obligations and did not state that the amount should include anything beyond the date when probation was revoked. Huey does not contend, and the record does not show, that any such order was ever entered. We simply remind the probation department when calculating the amount Huey still owes, it must consider both the amounts Huey already paid and the date when probation services terminated.

DISPOSITION

For the reasons set forth above, the order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

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^[1] All further section references are to the Penal Code.

^[2] Respondent construes this as a reference to section 987.8, subdivision (b), which allows the court to hold a hearing to determine an indigent defendants ability to pay for the costs of appointed counsel or, in its discretion, refer the matter to a designated county officer to make an inquiry into the matter.