Filed 7/31/17 P. v. Davis CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
TYREE C. DAVIS,
Defendant and Appellant.

A147711

(City & County of San Francisco
Super. Ct. No. 223098)


Tyree C. Davis (appellant) appeals from a judgment entered after a jury convicted him of one misdemeanor count of resisting, obstructing, or delaying an officer (Penal Code, § 148, subd. (a)(1) ) and the trial court placed him on probation for two years. He contends the court erred in ordering him to “pay a probation supervision fee of $50 per month” “prior to making an ability to pay determination.” We reject the contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 6, 2014, an information was filed charging appellant with two felony counts of second degree robbery (§ 211), one felony count of second degree commercial burglary (§ 459), one felony count of receiving stolen property (§ 496, subd. (a)), one felony count of evading an officer (Veh. Code, § 2800.2, subd. (a)), four
misdemeanor counts of resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)), and one misdemeanor count of hit-and-run driving (Veh. Code, § 20002, subd. (a)).
Appellant filed a motion to set aside several counts. The trial court granted the motion in part, setting aside three of the four counts for resisting, obstructing, or delaying an officer (§ 148, subd. (a)(1)) and the misdemeanor count of hit-and-run driving (Veh. Code, § 20002, subd. (a)). Appellant also filed a petition under Proposition 47 (§ 1170.18) seeking reclassification of the felony burglary and receiving stolen property counts as misdemeanors. The court granted appellant’s reclassification petition as to both counts.
After a jury trial, the jury returned not guilty verdicts for both robbery counts, burglary, receipt of stolen property, and felony evasion of an officer as well as its lesser included offense of misdemeanor evasion of an officer. The jury found appellant guilty of one misdemeanor count of resisting, obstructing, or delaying an officer.
At sentencing, the trial court suspended imposition of sentence and placed appellant on probation for two years. As a condition of probation, the court ordered appellant to serve 64 days in jail, with credit for 64 days of time already served.
The court imposed a $150 restitution fine (§ 1202.4, subd. (b)(1)), a $40 court security fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)), and a probation supervision fee of “[u]p to $50 a month” (§ 1203.1b). The court also suspended imposition of a $150 probation revocation restitution fine (§ 12022.44).
Defense counsel objected to the probation supervision fee, stating, “On the issue of costs of adult probation, I am wondering if the Court would consider waiving that based on Mr. Davis’s indigent status. The way it works, they merely charge, since it is two years, they will charge Mr. Davis $50 a month times 24, and they will just make that a bill for him, $1,200 bill.” The court responded, “They should take into account his ability to pay. I don’t know what his financial condition is. Certainly, there is some suggestion that he has more funds than he lets onto, but it is not important for me to look into it. I will let probation decide whether he has ability to pay it or not.”
DISCUSSION
Appellant contends the trial court erred in ordering him to “pay a probation supervision fee of $50 per month” “prior to making an ability to pay determination.” We reject the contention for the following reasons.
Section 1203.1b, subdivision (a), provides in relevant part: “[I]n any case in which a defendant is granted probation [or] given a conditional sentence, . . . the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision. . . . The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant’s ability to pay. The 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.”
Section 1203.1b, subdivision (b), goes on to provide that when “the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative.” The section makes further provision for the conduct of the hearing, defines the term “ ‘ability to pay,’ ” and provides for additional hearings during the period of probation to review the defendant’s ability to pay the probation costs. (§ 1203.1b, subds. (c), (e).)
Appellant complains that the trial court erred in ordering him to “pay a probation supervision fee in a specific amount” before making a determination of his ability to pay. The court, however, did not order appellant to pay the costs of probation supervision in any “specific amount.” Rather, it ordered appellant to pay a probation supervision fee of “[u]p to $50 per month,” which left open the possibility of appellant not being required to pay anything if he lacked the ability to pay.
Appellant also asserts the trial court improperly delegated its duty to make an ability to pay determination to the probation department when it stated, “They [probation] should take into account his ability to pay,” and “I will let probation decide whether he has ability to pay it or not.” As noted, however, section 1203.1b, subdivision (a), provides that “the probation officer . . . shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision. . . . [and] shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant’s ability to pay.” (Italics added.) Thus, the court did not err in requiring probation to make the initial determination of appellant’s ability to pay.
DISPOSITION
The judgment is affirmed.



_________________________
McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.