P. v. Jones

Filed 8/31/06 P. v. Jones CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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. Ellen C. Deshazer, Judge. Reversed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

The trial court terminated Tremaine Jones’s probation and ordered him to pay back the county $2,322 for the costs of his probation services. (Pen. Code, § 1203.1b.) Jones contends the trial court erred because there was no proof of the actual costs or of his ability to pay. He also contends the court’s errors violated due process. Because the court failed to determine Jones’s ability to pay, we reverse.

FACTS AND PROCEDURAL HISTORY

In June 2004, Tremaine Jones pled no contest to one count of possession for sale of Phencyclidine (PCP). (Health & Saf. Code, § 11378.5.) At the July 2004 probation and sentencing hearing, the court placed Jones on three years of formal probation and ordered him to pay fees totaling $250.

Several months later, the trial court revoked Jones’s probation because he violated its terms by failing to report to his probation officer, and issued a bench warrant. On January 20, 2005, Jones admitted the violation. The trial court reinstated probation, with an order that Jones serve 30 days in county jail.

On February 16, 2005, Jones was sentenced to two years in state prison following a separate arrest and conviction. Based on this development, the probation department recommended that Jones’s probation for his 2004 PCP possession conviction be terminated, and that a civil judgment be entered against him for the costs of his probation services in the amount of $2,322, pursuant to Penal Code section 1203.1b.^[1] Notice of the probation modification hearing, with an attached report listing the proposed amount of Jones’s probation costs, was mailed to Jones in state prison on July 22, 2005.

Jones did not attend the August 10, 2005, hearing on the probation department’s section 1203.1b recommendation, but his lawyer did. Because Jones was now in state prison and would be on parole when he was released, the court said it would terminate probation and enter a civil judgment against Jones for his probation costs, as per section 1203.1b. Jones’s lawyer, Carole Telfer, said she had “no objection.” When the court entered the $2,322 judgment, however, Telfer asked whether it could be “for the actual fees because if [Jones has] been in prison, he hasn’t been getting much probation supervision.” The court replied that Jones could argue the amount of fees later. Telfer ultimately objected to “the civil judgment as it pertains to cost of probation on his behalf because if it’s a civil judgment, then he doesn’t have any remedies.”

On appeal, Jones contends the trial court erred because it did not determine either the probation department’s costs or his ability to pay them. He also contends the court violated his constitutional due process rights. We conclude the court erred because it did not determine Jones’s ability to pay.^[2]

DISCUSSION

Section 1203.1b allows for the recovery of probation expenses by ordering defendants who are granted probation to pay the costs of probation supervision and the preparation of probation reports, if they are financially able to do so. (§ 1203.1b, subd. (a); People v. Hall (2002) 103 Cal.App.4th 889, 892.) It mandates the probation officer or his authorized representative to “make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision” when accounting for these fees. (§ 1203.1b, subd. (a); People v. O’Connell (2003) 107 Cal.App.4th 1062, 1064 [remanding the case because the trial court “ordered appellant to pay for the costs of probation supervision without inquiring into his ability to pay”].)^[3] The statute also requires the probation officer to inform the defendant that he is entitled to a hearing to determine both the payment amount and his ability to pay. A defendant may knowingly and intelligently waive this right. (§ 1203.1b, subd. (a).)

Jones argues that the trial court did not comply with section 1203.1b when it entered a $2,322 civil judgment against him without first determining his ability to pay. Respondent counters that (1) Jones forfeited any claim concerning his ability to pay because he did not object to the civil judgment at the hearing, and (2) assuming the trial court erred, it was not prejudicial because there is no reasonable probability that Jones would have received a more favorable outcome absent the error. We agree with Jones.

In People v. Adams (1990) 224 Cal.App.3d 705, 707 (Adams), the defendant pled guilty to one count of arson, was granted probation on certain conditions, and was ordered to reimburse the county its costs of probation, including the presentence investigation and report. Adams appealed, asserting that the order was invalid because he was not given a separate hearing on his ability to pay. (Ibid.) The appellate court agreed, holding that the trial court’s failure to hold a hearing on defendant’s ability to pay meant there was no evidence to support its finding that he could do so. (Id. at pp. 713-714; People v. Phillips (1994) 25 Cal.App.4th 62 [defendant’s procedural rights are not violated so long as the ability to pay hearing is conducted as part of the sentencing process].)

As in Adams, the trial court here also failed to conduct a hearing or receive evidence regarding Jones’s financial ability to pay the judgment it imposed. The portions of the probation report set aside for information on Jones’s employment and financial status were blank. The only information the court received was the probation officer’s recommendation concerning the amount of probation costs. Because Jones would be spending the next two years in prison, it was unlikely that he had the ability to pay. (Adams, supra, 224 Cal.App.3d at pp. 713-714 [defendant sentenced to one year in jail and, at the time, section 1203.1b permitted an evaluation of ability to pay limited to the next six months; accordingly, even if a hearing on the ability to pay had been held, there would have been no evidence to support a finding that defendant had that ability].) The trial court’s order imposing a civil judgment against Jones was in error. (People v. Hall, supra, 103 Cal.App.4th 889; Adams, supra, 224 Cal.App.3d at p. 713.)

Respondent relies on People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072-1073, 1075 (Valtakis) to argue that Jones waived this issue because he did not object. The hearing, in relevant part, proceeded as follows:

“The Court: Okay. The Court is in receipt of a report from the probation department with respect to Mr. Jones, and, apparently, Mr. Jones in a matter out of Long Beach was sentenced in February of this year to two years in state prison. . . . What they’re asking the Court to do now is to because he’s going to be on parole when he’s released from state prison, to terminate probation and issue a civil--enter a civil judgment in the amount that’s outstanding against Mr. Jones with respect to his probation fees and responsibilities.

“Ms. Telfer [defense counsel]: I have no objection.

“The Court: All right. With respect to Tremaine Jones, the Court is going to follow the recommendation of the probation department. Probation is terminated, and pursuant to Penal Code section 1203.1(B) [sic], a civil judgment is entered against Mr. Jones in the amount of $2,322.

“Ms. Telfer: Is that for the cost of probation and everything?

“The Court: It’s everything. It’s the restitution fee, the security fee.

“Ms. Telfer: Can we just do it for the actual fees because if he’s been in prison, he hasn’t been getting much probation supervision.

“The Court: He can argue it when they get back and have them knock it off.

“Ms. Telfer: Okay. I’ll try to write him a letter and tell him that.

“Ms. Carrillo: What was the amount, your Honor?

“The Court: $2,322.

“Ms. Telfer: For the record then, I’m objecting to the civil judgment as it pertains to cost of probation on his behalf because if it’s a civil judgment, then he doesn’t have any remedies.”

According to respondent, Telfer’s initial statement that she had “no objection“ waived the issues Jones raises on appeal. We disagree. In Valtakis, the decision states that no objection was made. Here, although Telfer initially said she had no objection to the court’s statement that it would revoke probation and order a civil judgment of $2,322, she immediately began to question the amount of the probation fees, noting that if “he’s been in prison, he hasn’t been getting much probation supervision.” Because Jones was left with no remedies, Telfer objected to the judgment. The precise meaning of that objection is not clear because Jones had at least two remedies available to him: this appeal, and a motion to modify the amount of the judgment based on changed circumstances in his ability to pay. (§ 1203.1b, subd. (f).) However, such a motion could not have taken into account Jones’s ability to pay as of the time of the hearing, an issue that respondent contends was waived. (See Valtakis, supra, 105 Cal.App.4th at p. 1076.) The one thing that is clear is that Jones’s two-year prison term limited, if not eliminated, his ability to pay the amount ordered. (Adams, supra, 224 Cal.App.3d at pp. 713-714.) In short, while we cannot state with certainty the nature of Telfer’s objection, we believe she was trying to articulate an objection related to the amount of the probation that could have encompassed Jones’s ability to pay. On this record, we cannot hold that Jones made a knowing and intelligent waiver of his right to a hearing on his ability to pay, or that Telfer waived that right on his behalf.^[4]

Finally, respondent’s assertion that any error committed by the trial court was not prejudicial because there is no reasonable probability that Jones would have otherwise received a more favorable outcome is also unavailing. There is no evidence in the record to suggest Jones was able to pay back his probation costs. On the contrary, Jones was serving a two year prison term when the civil judgment was entered, and was therefore likely unable to repay those costs. Thus, there is a reasonable probability that--had a proper hearing been held--the trial court would have at least reduced the fees assessed on the grounds of inability to pay. The trial court’s error, therefore, is not harmless.

DISPOSITION

The order for reimbursement of probation costs is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

We concur:

BOLAND, J.

FLIER, J.

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

^[2] As a result, we need not reach Jones’s due process argument, or his contention that the court failed to determine properly the amount of the costs.

^[3] In determining whether a defendant is able to pay, the court should consider, at a minimum: (1) defendant’s present financial position; (2) defendant’s reasonably discernible future financial position; (3) the likelihood that the defendant shall be able to obtain employment within the one year period from the date of the hearing; and (4) any other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs. (§ 1203.1b, subd. (e)(1)-(4).)

^[4] A clearly stated objection would have made for a better record.