Filed 1/29/18 P. v. Gilbert CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Joshua W. Gilbert appeals from certain fee orders made by the trial court at sentencing upon placing him on probation. He contends that although his defense counsel properly objected, the trial court ordered him to pay two probation fees and a booking fee without first fulfilling the requirements that it determine whether or not he had the ability to pay these fees. The People argue defendant has forfeited his claim about the probation fees and that in any event the trial court made an implied finding that he was able to pay them, and that the booking fee was reasonable. We agree with defendant. We vacate the trial court’s orders regarding the challenged fees and remand this matter to the court for further proceedings consistent with this opinion.

BACKGROUND

In June 2015, the District Attorney for the City and County of San Francisco filed a complaint charging defendant with felony second degree burglary of a motor vehicle (Pen. Code, § 459,^[1] count one) and two misdemeanors, receiving or buying stolen property (§ 496, count two) and possession of burglary tools (§ 466, count three). The complaint also alleged defendant had served a prior prison term (§ 667.5, subd. (b)).

The events underlying these charges were later recounted in the probation department’s June 2016 presentence report to the trial court. On May 28, 2015, police officers were dispatched to Kearny and Post Streets in San Francisco to investigate a reported automobile theft. The victim said someone had broken into her car and taken her black purse, which contained her gray wallet and mobile phone. Officers searching the area noticed defendant, who matched a description of the suspect. He was seen getting off a bicycle with a backpack, meeting a female and going with her into the Powell Street Muni Station. There, he took a gray wallet out of his backpack, flipped through it and handed it to the female, who used the Muni pay station as defendant stood nearby. Upon further investigation, detention and arrest of the pair, police recovered the victim’s purse, wallet and phone. They later obtained evidence that the two had used the victim’s debit card at the Muni pay station.

Defendant pled not guilty and denied the enhancement allegation. Subsequently, he entered a guilty plea to felony second degree burglary of a motor vehicle (count one). The court found a factual basis for his new plea, found him guilty of count one and dismissed the remaining charges and the allegation.

I.

The Probation Department’s Presentence Report

The probation department indicated in its June 2016 presentence report that defendant was a month short of his thirtieth birthday and a high school drop-out who was unemployed and homeless. He had held one job in the past, when he worked for six months in 2008 as a machine operator, and had no income or assets. He was the father of a three-year-old-girl, for whom he provided no financial support.

The department reported that defendant was convicted and placed on probation several times from 2006 to 2009 for drug-related crimes, and that his prior performance on probation was unsatisfactory. He served a prior term in San Francisco County Jail as well. Defendant told the department that his overall health was good and denied taking any prescribed medication. The department reported that defendant had engaged in daily use of heroin, methamphetamines, cocaine and/or crack cocaine since the age of 16. He had completed two substance abuse programs, one in 2013 and the other in 2014, but was “likely” to have drug or alcohol problems and needed substance abuse treatment. He agreed that he would benefit from such treatment. The department further reported that according to a COMPAS assessment, defendant had a high probability for violent and general recidivism and failure to appear. However, “[b]y completing a cognitive based behavioral program, substance abuse treatment, and job training, the defendant could utilize skills learned and address his substance abuse dependency, enhance his employment skills and develop prosocial relationships within the community.” The department recommended defendant be put on supervised probation.

As for fines and fees, the department reported that “[b]ased on the defendant’s financial condition, he does not have the ability to pay legal services pursuant to Section 987.8 PC. The defendant has been notified of his obligation to pay $50 a month in probation costs and advised of his rights according to the provisions of section 1203.1(b) [sic] PC.” The department recommended that defendant pay, among other fines and fees, “up to $150.00 for the cost of the pre-sentence investigation if PSI is prepared pursuant to Section 1203.1(b) [sic]of the Penal Code,” “probation costs of $50.00 a month in a manner as determined by the Probation Officer,” and “a jail-booking fee up to $135.00 pursuant to Section 29550.1 of the Government Code.”

II.

Defendant’s Sentencing Hearing

At the sentencing hearing, the trial court suspended imposition of sentence and placed defendant on probation for three years, subject to certain terms and conditions. Defense counsel objected to the court’s imposition of any “nonmandatory fines” based on defendant’s “inability to pay. [Defendant] has been unemployed while he’s in custody, and he’s also going to go into a residential treatment program after this. So he will have no ability to pay in the foreseeable future.” The court stated that it “did not intend to impose any nonmandatory fines and fees in this case,” which in the hearing transcript is followed by counsel’s statement, “And the cost of probation supervision as well”; the context indicates counsel was adding this cost to its “inability to pay” objection. The court responded, “I’m going to impose it and his inability to pay should be noted and dealt with down the road.” Defense counsel stated, “[j]ust for the record, I am objecting.”

Subsequently, the court ordered, among other things, what defendant challenges here: that he “pay pre-sentence investigation in the amount of $150 as determined by the probation officer,” “up to $50 a month” for probation supervision and a $135 booking fee. The court further ordered defendant “to report to the Collections Unit . . . to make payment arrangements once you’re released from custody.” The court also ordered defendant to pay a restitution fine of $300 under section 1202.4, subdivision (b), a probation revocation restitution fine of $300, and reserved the issue of whether he should pay restitution to the victim.

Defendant filed a timely notice of appeal from the court’s orders at sentencing.

DISCUSSION

Defendant makes two categories of claims. The first is regarding the court’s orders that he pay $150 for presentence investigation and “up to” $50 a month for probation supervision (probation fees). The second is regarding the court’s order that he pay a $135 booking fee.

I.

The Trial Court Was Required to, But Did Not, Determine Defendant’s Ability to Pay the Probation Fees.

First, defendant contends the trial court was required under section 1203.1b to, but did not, order the probation department to make an initial determination of his ability to pay the probation fees. Nor did the court schedule a hearing to finally determine these issues. Therefore, we must reverse the court’s orders that he pay these fees.

Defendant raises questions of law about the terms of the governing statute, section 1203.1b, which we review de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894.)

Section 1203.1b, subdivision (a) states regarding a person granted probation who is the subject of any presentence investigation and report, that “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, . . . [and] of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203.”[2]

Section 1203.1b, subdivision (a) also outlines specific procedures the court and the probation department must follow in determining if a defendant has the ability to pay such fees. It states, “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) states that when a defendant does not waive his right to this court determination, “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.” At this hearing, a defendant is “entitled to have, but shall not be limited to, the opportunity to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses, and to disclosure of the evidence against the defendant, and a written statement of the findings of the court or the probation officer, or his or her authorized representative.” (§ 1203.1b, subd. (b)(1).) Further, if the court determines that the defendant has the ability to pay all or part of the costs, “the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability,” and shall take into account the amount of any fine or restitution also ordered. (Id., subd. (b)(2),(3).) The court may order a defendant to make monthly payments. (Id., subd. (d).)[3]
Defendant rests his argument that the trial court did not take the steps required to determine his ability to pay the probation fees on People v Trujillo (2015) 60 Cal.4th 850 (Trujillo). In Trujillo, the trial court suspended imposition of sentence, placed Trujillo on probation and ordered her to pay certain fines and fees, including a booking fee, a presentence investigation fee “ ‘not to exceed $300’ ” and a probation supervision fee “ ‘not to exceed $110 per month.’ ” (Id. at p. 854.) It ordered Trujillo “to report to the Department of Revenue within 30 days for completion of a payment plan.” (Ibid.) Trujillo refused to speak with the probation officer before sentencing, did not object at sentencing to these fees and did not assert she could not pay them. (Ibid.) Nonetheless, she asserted on appeal that there was a lack of evidence of her ability to pay these fees on the ground that the trial court failed to determine her ability to pay them as required by section 1203.1b. (Ibid.)

The issue before the California Supreme Court was whether Trujillo had forfeited her appellate claim by her failure to provide financial information to the probation officer, to object at sentencing to the imposition of these fees for noncompliance with section 1203.1b or to later raise with the probation department or the court any issues about her ability to pay. In the course of its analysis, the court reviewed the requirements of section 1203.1b that a probation officer make a determination of a defendant’s ability to pay, that the trial court order a defendant to appear before the probation officer for this determination, that the probation officer inform the defendant of the right to a judicial hearing on the issue and that when a defendant fails to waive this right the probation officer refer the matter to the court for the scheduling of a hearing on the issue. (Trujillo, supra, 60 Cal.4th at p. 855.) The Trujillo court found it noteworthy that when the probation officer contacted Trujillo, she refused to be interviewed, that the presentence report was completed without her input, that she evidently did not give her knowing and intelligent waiver of her right to a judicial hearing, and that there was no indication in the record that she reported to the Department of Revenue as ordered or ever asserted an inability to pay. (Id. at pp. 855–856.) The court determined that Trujillo had forfeited her claim because she “tacitly assented below” to the imposition of these fees. (Id. at p. 859.) It wrote, “Notwithstanding the statute’s procedural requirements, we believe to place the burden on the defendant to assert noncompliance with section 1203.1b in the trial court as a prerequisite to challenging the imposition of probation costs on appeal is appropriate.” (Id. at p. 858.)

Defendant, contending that he did object at sentencing to the imposition of the probation fees based on his inability to pay, argues that Trujillo indicates that “the trial court must comply with the procedures in section 1203.1b before it makes any orders for fines, fees, and costs related to probation supervision and investigation.” Therefore, he contends, the trial court erred here because it should have ordered the probation department to initially determine his ability to pay and then held a hearing on the issue.

We agree with defendant that the trial court did not comply with the requirements of section 1203.1b, although we disagree that it should have first ordered the probation department to initially determine his ability to pay the probation fees. The probation department had already made this determination. Its presentence report states that defendant was unemployed, homeless, without income or assets and had held one job, for six months, in 2008. It also states, “The defendant has been notified of his obligation to pay $50 a month in probation costs and advised of his rights according to the provisions of section 1203.1(b) [sic] PC,” and recommended the court order that he pay this amount. The report further indicates the department considered, but did not determine, defendant’s ability to pay for presentence investigation, instead recommending that he pay “up to” $150 for this investigation. All of this indicates the probation department did interview defendant about his financial circumstances, determined that he had the ability to pay $50 a month for probation supervision and considered his ability to pay for presentence investigation, and advised him of his rights under section 1203.1b[4] (which include the right to an “ability to pay” court hearing). Further, nothing in the report or in the record indicates defendant waived his right to a court hearing on his ability to pay the probation fees.[5]

As a result of the probation department’s actions, defendant was entitled under section 1203.1b to a court hearing regarding his ability to pay the probation fees before the court could order him to pay them, as indicated by the terms of section 1203.1b and the discussion in Trujillo. The court was required to give defendant the opportunity to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses and review the evidence against him. (§ 1203.1b, subd. (b)(1).) The court was also required to take into account other fines and restitution it was imposing in assessing defendant’s ability to pay the probation fees. (Id., subd. (b)(3).)

The court performed none of these required duties despite the probation department’s report and a defense objection that defendant was unable to pay any “nonmandatory fees” (which logically includes fees for which an ability to pay must first be determined) or costs of probation supervision (which also are nonmandatory). Instead, the court stated, inconsistently, that it would not “impose any nonmandatory fines and fees in this case”; would impose costs for probation supervision, and that defendant’s “inability to pay” would be “noted and dealt with down the road,” drawing another objection from defense counsel. Yet it proceeded at the hearing to order defendant to pay the nonmandatory fee of $150 for presentence investigation and “up to” $50 a month for probation supervision, inexplicably leaving the latter amount uncertain although the probation department had already determined defendant should pay the fixed amount of $50 a month. The court’s failures may well have been the result of an inartfully written probation department report and a misunderstanding about the meaning of nonmandatory fees. Nonetheless, they violated the requirements of section 1203.1b.

The People make two arguments for affirmance. First, they contend defendant has forfeited his appellate claim regarding the probation fees because he “did not object to the probation department’s initial assessment that he could pay for the probation report and some fees towards the cost of probation supervision. Nothing in the record establishes that he filed financial documents [that would enable the probation department to make] a reasonable assessment of his ability to pay. The probation report found that [defendant] did not have the ability to pay attorney’s fees. The probation report noted no current source of income but determined [defendant’s] physical and mental health were good, indicating he was able to work. The probation officer suggested a case plan which would include substance abuse treatment and job training to enhance [defendant’s] employment opportunities. The trial court made no express finding as to ability to pay but only imposed minimal fines and fees. When defense counsel objected to the imposition of the fees for the first time at the sentencing hearing, the trial court lacked the necessary information to make a finding regarding financial ability without a probation or financial department report based on documentary evidence provided by [defendant]. The trial court ordered [defendant] to report to the collection department and expressly left open [defendant’s] ability to challenge the imposed fees.”

In support of their forfeiture argument, the People cite another California Supreme Court case, People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar). In Aguilar, the trial court suspended imposition of sentence and placed Aguilar on probation. (Id. at p. 865.) It ordered Aguilar to pay various fines and fees, including a $176 fee for the preparation of the probation report and an amount not to exceed $75 a month for probation supervision, to which Aguilar did not object. (Ibid.) The court then stated that many of the fees imposed were based on Aguilar’s ability to pay, which Aguilar could discuss with the probation deputy when he contacted the probation office. (Ibid.) The record did not indicate if Aguilar subsequently appeared before the probation officer to contest his ability to pay the fees. (Ibid.) Aguilar contended the court imposed the fees without making a finding of his ability to pay them, and that he was not advised and did not waive his right to a court hearing on the probation supervision fee, all of which was required under section 1203.1b. (Ibid.)

The Aguilar court concluded that Aguilar had forfeited his appellate challenge to the probation fees. (Aguilar, supra, 60 Cal.4th at p. 864.) It noted that Aguilar could have objected at sentencing to the fees imposed and also when he later appeared before the probation deputy, but that he did not do either. (Id. at pp. 867–868.) Further, section 1203.1b authorized the trial court to hold additional hearings during the probation period to review Aguilar’s ability to pay. (Id. at p. 868.)[6]

Citing Aguilar, the People conclude that, although defendant did make an objection at the sentencing hearing, “nothing in the record shows he filled out the requisite financial forms to permit an informed assessment of his ability to pay. [Citation omitted.] [Defendant] should not be permitted to circumvent the requirements of submitting financial documentation by an objection at sentencing.”

The People’s arguments are unpersuasive for two reasons. First, contrary to their assertion that defendant did not object to the probation department’s initial determinations about his ability to pay the probation fess, defense counsel at the sentencing hearing objected that defendant did not have the ability to pay any nonmandatory fees, which included the probation fees recommended by the department.[7]

Second, nothing in Aguilar or the probation department’s report indicates defendant was required to, but did not fill out any forms, and we are not aware of any such requirement. Further, the probation department’s report indicates the department interviewed defendant, learned his educational and employment history and that he had no income, assets, employment or home, and considered his ability to pay the probation fees under section 1203.1b. All of this indicates defendant did provide information to the department as requested.

Second, the People contend that in any event, the court made an “implied finding” that defendant had the ability to pay the probation fees, which was supported by substantial evidence. This contention cannot be maintained in light of the court’s statement at the sentencing hearing that defendant’s inability to pay would be “noted and dealt with down the road.” This statement indicates the court made no finding about defendant’s ability to pay at the sentencing hearing.

In short, the court failed to comply with its duties under section 1203.1b to hold a hearing and determine whether defendant had the ability to pay the probation fees before ordering that he do so. We must vacate the court’s orders regarding these fees and remand so that the court may hold this hearing and properly exercise its discretion.

II.

The Trial Court Was Required To, But Did Not, Determine Defendant’s Ability to Pay the Booking Fee.

Second, defendant contends that case law requires that the trial court determine his ability to pay the $135 booking fee before ordering that he pay it and that the People show by a preponderance of the evidence that he could pay it, neither of which occurred. Therefore, he argues, we must reverse the trial court’s order regarding this fee as well. We agree that he was entitled to a hearing on this matter.

Government Code section 29550.2, subdivision (a) provides in relevant part that “[a]ny person booked into a county jail pursuant to any arrest by any governmental entity,” subject to exceptions that defendant does not assert apply here, “is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. . . . If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person . . . . The court shall, as a condition of probation, order the convicted person to reimburse the county for the criminal justice administration fee.” (Italics added.)

This “criminal justice administration fee” has also been referred to as a “booking” fee. (See People v. McCullough (2013) 56 Cal.4th 589, 590–591 (McCullough).) Our Supreme Court has held that a “defendant ha[s] the right to a determination of his ability to pay the booking fee before the court order[s] payment.” (Id. at pp. 592–593.) Further, “Government Code section 29550.2 places on the People the burden of proving a defendant’s ability to pay a booking fee” by a preponderance of the evidence. (Id. at p. 598.)

The People contend the trial court’s imposition of a $135 booking fee was “reasonable because [defendant] can obtain employment to pay this minimal cost.” They point out that our Supreme Court has held “the financial burden of the booking fee to be de minimis and has interposed no procedural safeguards or guidelines for its imposition.” (McCullough, supra, 56 Cal.4th at p. 599.)

We conclude that the court did not comply with McCullough’s directive that it determine whether defendant had the ability to pay a booking fee before ordering him to pay this fee. Again, the trial court’s statement that defendant’s ability to pay would be dealt with “down the road” makes clear that it made no such determination. Therefore, we must also vacate the court’s order that defendant pay this fee and remand so that the trial court may make this determination and properly exercise its discretion.

DISPOSITION

We vacate the trial court’s orders that defendant pay $150 for presentence investigation, up to $50 a month for probation supervision and a booking fee in the amount of $135. We remand this matter to the trial court for further proceedings consistent with this opinion.

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.