Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC064608.
Marchiano, P.J.
Defendant Wilburt Collins appeals from an order requiring him to pay a total of $1,332 toward the cost of his probation supervision. He contends that procedures required by Penal Code section 1203.1b were not followed in determining his probation supervision fees, and that the fee order was not supported by substantial evidence. We agree, in part, with the latter contention, and modify the order to reduce the amount of fees owed.
All further statutory references are to this statute.
I. BACKGROUND
A. Defendant’s Case
On January 28, 2008, the court suspended execution of a six-year prison sentence and placed defendant on supervised probation for a period of three years. In addition to fines and other fees totaling $420, defendant was ordered to pay probation supervision fees “not to exceed” $75 per month. Defendant served time in county jail and in a residential drug treatment program. He had no income from the time he was sentenced until he became a resident manager at the treatment program at the end of May 2009, a period of 16 months out of his 36-month probation. An entity called Revenue Services, acting on behalf of the Probation Department, thereafter began collecting probation supervision fees from defendant. Defendant paid some of the fees charged, and moved in February 2010 for a waiver of the fees.
Probation Officer Jeff Morino testified at the hearing on the motion that probation supervision fees are initially set at $75 per month. If the defendant claims an inability to pay that amount, the probation officer assesses the ability to pay and reduces the fees owed according to a sliding scale based on the defendant’s income. Defendant testified that when he raised the issue with his probation officer he was referred to Revenue Services, and was told that no sliding scale of reduced fees was available.
Morino acknowledged that the sliding scale was not available from September 2009 to March 2010. During that period, Revenue Services was responsible for evaluating defendant’s ability to pay probation supervision fees, but probation officers had resumed making that assessment by the time of the March 30, 2010 hearing on defendant’s motion. Revenue Service employee Irma Hollister testified that “Probation accounting” specified the amount of the fees owed. Revenue Services did not reduce the debt, and only considered the defendant’s ability to pay in deciding how much of the monthly fee it would attempt to collect.
Shortly before the hearing, Morino evaluated defendant’s ability to pay probation supervision fees based on current information defendant provided to Revenue Services and his probation officer. Taking into account the probationary period in which defendant had no earnings, Morino determined that he could afford to pay a total of $1,332, representing $37 per month for 36 months. Morino conceded that he did not know how much it cost to supervise defendant’s probation, and said that the actual costs of individual defendants’ supervision were not a factor in determining their fee liability.
Defendant testified that he earned $1,200 per month as a resident manager at the treatment program, and he identified monthly expenses totaling $830 (rent $580, food $150, telephone $50, and car insurance $50). He said that he was taking college classes, but did not indicate how much they cost.
The court denied the fee waiver motion and, consistent with Morino’s assessment, ordered defendant to pay $1,332 in probation supervision fees at the rate of $37 per month over the entire probationary period.
A defendant is responsible under the statute for paying, among other things, the reasonable costs of probation supervision and of any presentence investigation or report. (Subd. (a).) “[T]he 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 those costs. (Ibid.) The probation officer or agent also “determine[s] 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.” (Ibid.) The amount charged “shall not exceed the amount determined to be the actual average cost” of the services involved. (Ibid.) The order for payment is a “judgment” (subd. (f)), and “[e]xecution may be issued on the order... in the same manner as a judgment in a civil action” (subd. (d)).
The probation officer must advise the defendant that he or she is entitled to a court hearing, with counsel, on the issues of ability to pay and the payment amount. (Subd. (a).) The defendant may waive the right to a hearing if the waiver is “knowing and intelligent.” (Ibid.) The statute specifies procedures for the court hearing, which include the rights to present evidence and cross-examine witnesses (subd. (b)), and sets forth criteria for determining the ability to pay, which include the defendant’s employment prospects (subd. (e)(3)), and “[a]ny other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs” (subd. (e)(4)).
The court may hold additional hearings during the probationary period on the defendant’s ability to pay (subd. (c)), and the defendant may petition the probation officer or the court to review the ability to pay if his or her financial circumstances change at any time while a judgment under the statute is pending (subd. (f)).
II. DISCUSSION
Defendant argues that order for payment of probation supervision fees should be reversed because the statutory procedures were not followed in his case. He notes that the original $75-per-month fee was set without any consideration of his ability to pay, and without any advice of his right to a court hearing to contest that amount. However, these errors were harmless in view of the hearing that was eventually afforded, where the court determined the amount of fees that would be appropriate in view of defendant’s financial circumstances.
Defendant contends that the order was not supported by substantial evidence because the actual cost of his probation supervision was not considered. However, we do not read section 1203.1b to require computation of the costs of supervising the individual defendant whose liability is at issue. The statute merely requires that the assessed costs not exceed the county’s “actual average cost” of supervision. (Subd. (a), italics added.) No showing was made that the original $75-per-month charge, much less the $37 amount ultimately imposed, exceeded the average cost incurred here.
We agree with defendant that the record does not support an order for payment of any fees during the first 16 months of his 36-month probation, because the evidence showed that he had no earnings or ability to pay during that time. (See People v. Pacheco (2010) 187 Cal.App.4th 1392.) Accordingly, the total amount of fees must be reduced from $1,332 ($37 x 36 months) to $740 ($37 x 20 months), with payments of $37 per month owed beginning in June 2009, when defendant started earning income.
III. DISPOSITION
The fee order is modified to provide for payment of a total of $740 in probation supervision fees in 20 monthly installments of $37 each beginning in June 2009. As so modified, the order is affirmed.
We concur: Dondero, J., Banke, J.