P. v. Herrera

Filed 10/17/07 P. v. Herrera CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Pursuant to a negotiated disposition, appellant pleaded no contest to one count of assault with force likely to produce great bodily injury. (Pen. Code,  245, subd. (a)(1).) The trial court placed appellant on probation with various conditions including a county jail sentence and ordered appellant to pay probation costs. Appellant contends, "The trial court erroneously ordered appellant to pay probation costs without properly considering his ability to pay." We affirm.

Background

Near a Starbuck's, appellant and some other men approached the victim and his brother who were talking to some women that they had met earlier in the evening at the Mucky Duck, a bar and pub in Monterey. An altercation ensued and appellant, holding a knife, chased the victim. The victim called for help from a nearby police officer who then pursued and caught appellant.

Appellant pleaded no contest to a charge of violating Penal Code section 245, subdivision (a)(1), with the understanding that the deadly weapon language used in the description of the offense would be struck, that the conviction would not constitute a strike, and that appellant would be placed on probation.

The probation report recommended that the court place appellant on probation and suggested certain terms and conditions. The report noted that appellant "has worked for the Village Fish House for the past three years earning $6.75 per hour." Under the heading "Financial Capability" the report said, "The defendant declared bankruptcy in 2002. He has no debt. With employment, the defendant should [be] capable of bearing the costs associated with this case."

At sentencing, defense counsel asked the court to make a number of changes to the probation report and challenged some of the recommendations. The court placed appellant on probation and described the terms and conditions of probation. The court then said, "$644 is the cost of the preparation of the report. $41 a month is the cost of supervised probation. You're to pay for those costs in accordance with your ability to pay. [] You're also to pay for the services of your court-appointed attorney in accordance with your ability to pay. [] Contact those departments and provide them with the necessary financial information. They'll tell you how much you can afford to pay, and you're ordered to pay that amount."

The court minutes reflect, "The defendant is ordered to pay $644.00 for the cost of preparation of the probation report, plus $41.00 per month as the cost of supervised probation in accordance with his/her ability to pay. The defendant is ordered to provide the Probation Officer with financial information for evaluation of his/her ability to pay, and is ordered to pay the amount Probation determines he/she can afford."

Discussion

Appellant contends, "The trial court erroneously ordered appellant to pay probation costs without properly considering his ability to pay."

Penal Code section 1203.1b, subdivision (a) provides, in pertinent part, that if the probation officer determines that a defendant has the ability to pay some or all of the reasonable cost of preparing a presentence probation report and determines the amount and manner of such payment, "[t]he 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." If the defendant does not waive his or her right to a hearing, the probation officer is to refer the matter to the court for the scheduling of a hearing. ( 1203.1b, subd. (b).) At that hearing, "The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs . . . ." (Ibid.)

Appellant asserts that, instead of complying with the provisions of Penal Code section 1203.1b, "the trial court did things backwards." He points out that "instead of ordering appellant to report to the probation officer for an evaluation of his ability to pay before imposing the costs [the trial court] simply imposed the costs and ordered appellant to pay the amount the probation officer decides that he can afford." Appellant relies on People v. O'Connell (2003) 107 Cal.App.4th 1062. In O'Connell, theappellant contended that the trial court had erred by ordering him to pay probation costs without a hearing on his ability to pay or a knowing and intelligent waiver of same as required by Penal Code section 1203.1b. Respondent, in that case, conceded error. The appellate court vacated the cost order and remanded the case to allow the trial court to take a knowing and intelligent waiver from the defendant of a hearing on his ability to pay, or conduct one as provided in Penal Code section 1203.1b. (Id. at p. 1068.)

Respondent argues that the record here does not support a claim of error. Respondent notes that although appellant is entitled to a hearing on his ability to pay probation costs, he is "not entitled to such a court determination prior to appearing before the probation officer in this case. He may later elect a court determination after appearing before the probation department but not before." (Italics in original.) Respondent argues, "the record on appeal does not reflect whether appellant went to probation department, what figures that the parties arrived at, and if there was an actual dispute regarding those figures, or if appellant even requested a subsequent hearing to challenge the probation department's determination. Therefore, appellant has not demonstrated that he is entitled to relief based on the record before this court."

Appellant notes that the parties "are not too far apart in their interpretation of appellant's legal situation. Both parties agree that appellant cannot be required to pay the costs of preparing the probation report or the costs of the probation supervision without a determination of his ability to pay and that, as of the time appellant appealed his case, no such finding had been made. The real problem is in the way the trial court phrased its order and, more importantly, the way the written order appears in the court minutes." That written order in the minutes states, "The defendant is ordered to pay $644.00 for the cost of preparation of the probation report, plus $41.00 per month as the cost of supervised probation in accordance with his/her ability to pay. The defendant is ordered to provide the Probation Officer with financial information for evaluation of his/her ability to pay, and is ordered to pay the amount Probation determines he/she can afford." Appellant argues, "Because there is no comma between the words 'probation' and the word 'in,' that sentence reads as though only the $41 per month is subject to the ability to pay." He argues that this order "can be misinterpreted as obligating appellant to pay some or all of the probation related costs without a determination of his ability to pay." Appellant recognizes that "given the brief filed by respondent, it is quite unlikely that the order will be misinterpreted in that fashion, and, if it is, appellant will be able to point to the concessions on this case in respondent's brief." We agree.

We expect that the trial court's order will not be misinterpreted in the manner appellant fears due to the omission of a comma in the minute order. We further expect that in the future, the trial court and the probation department will seek to avoid a record that is subject to this type of misinterpretation. Section 1203.1bspecifically requires "a knowing and intelligent waiver" of an ability to pay hearing. A finding of ability to pay probation supervision costs may be made by the trial court as part of the sentencing process, without the necessity of a separate, formal hearing. (People v. Phillips (1994) 25 Cal.App.4th 62, 70.) A finding of ability to pay need not be express, but may be implied through the content and conduct of other trial court hearings. (Id. at pp. 71-72.) The trial court may have considered the sentencing hearing here to incorporate an ability to pay hearing and finding. The court did have the information in the probation report under theheading "Financial Capability" that, "The defendant declared bankruptcy in 2002. He has no debt. With employment, the defendant should [be] capable of bearing the costs associated with this case." However, the statute requires the probation officer to inform the defendant of his or her right to have a hearing at which his or her ability to pay the costs is to be determined. There is no evidence that appellant was ever informed of his right to this procedure or that he was intelligently waiving it. Appellant here now has the benefit of respondent's acknowledgment that both the cost of preparation of the probation report and the cost of his supervised probation are subject to a finding of his ability to pay them.[1] However, we urge the trial court, in future proceedings, to make a record that clearly demonstrates full compliance with Penal Code section 1203.1b.

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] The court may hold additional hearings during the probationary period to review appellant's financial ability to pay the amount, and in the manner, as set by the probation officer or as set by the court under the statute. (Pen. Code, 1203.1b,subd. (c).) Appellant may also petition the probation officer for a review of appellant's financial ability to pay, or the trial court to modify or vacate its previous judgment, on the grounds of a change of circumstances with regard to his ability to pay. The probation officer and the court must advise the defendant of this right at the time of rendering of the terms of probation or the judgment. (Pen. Code, 1203.1b, subd. (f).)