Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC632289
Mihara, J.
Defendant challenges the trial court’s order that he pay $300 in attorney’s fees and a probation supervision fee of up to $64 per month. We reject his challenges and affirm the probation order.
I. Background
Defendant was charged by information with burglary (Pen. Code, §§ 459, 460, subd. (b)) and receiving stolen property (Pen. Code, § 496, subd. (a)). Defendant had burglarized a Carl’s Jr., and a stolen gas-powered saw had been found in his car. Defendant’s suppression motion was denied.
On February 7, 2007, he pleaded no contest to both counts in exchange for probation conditioned on service of a six-month jail term during which he would be eligible for all programs, including work furlough, except for electronic monitoring (EMP). At the end of the change-of-plea hearing, the court said to defendant: “I understand you’re working now, getting a union job.” Defendant replied “Yes, sir.” The court told defendant: “Well stick with that. You’ll make a lot more money as a union worker than you will going to Carl’s Juniors, all right?” Defendant said “Yes, sir.”
qThe case was referred to the probation department for a “limited report.” The April 13, 2007 probation report recommended, among other things, that “A Probation Supervision Fee not to exceed $64.00 per month be imposed pursuant to Section 1203.1b of the Penal Code” and that defendant be ordered to pay “Attorney fees if appropriate.”
Defendant had just one day of custody credit at the time of his April 13, 2007 sentencing hearing, as he had been released on bail on the day of his arrest. At the sentencing hearing, the court placed defendant on probation conditioned on him serving a six-month jail term during which he would be eligible for all programs except EMP. His surrender date was set for June 22, 2007. After the court articulated the conditions of probation, ordered defendant to pay a host of fines and fees, and ordered defendant to provide DNA samples and pay a penalty assessment, the court said: “The supervision fee for probation will not exceed 64 dollars per month and I’ll order $300 attorney fees under 987.8 for services of counsel. [¶] Any other conditions recommended by probation or the parties?” No additional probation conditions were suggested. Defendant filed a timely notice of appeal.
II. Discussion
A. Attorney’s Fees Order
Defendant challenges the trial court’s order that he pay $300 in attorney’s fees. He claims that there is not substantial evidence that he had the present ability to pay this amount at the time of the sentencing hearing.
A trial court may order a defendant who has been represented by appointed counsel to pay all or part of the cost of appointed counsel if the court finds that the defendant has the “present ability . . . to pay” such amount. (Pen. Code, § 987.8, subd. (b).) The “ability to pay,” as used in Penal Code section 987.8, “means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (Pen. Code, § 987.8, subd. (g)(2).)
Defendant acknowledges that there was evidence that defendant was “getting a union job” at the time of his plea, but he claims that this evidence was insufficient to show that he had the ability to pay $300 because it was not confirmed by evidence that he had actually obtained such a job, and it was counter-balanced by the fact that defendant was required to serve a six-month jail term and had unspecified matters pending in another county.
At the February 2007 change-of-plea hearing, defendant confirmed that he was “working now, getting a union job.” No contrary evidence appears in the record, and the trial court could properly rely on defendant’s confirmation to support a finding that defendant was working in a union job by the time of the April 2007 sentencing hearing. Although defendant was ordered to serve six months in jail, his jail sentence was delayed until June 2007, and the court specified that defendant was eligible for work furlough. The trial court could have reasonably concluded that defendant’s earnings at his “union job” during the two months between the April 2007 sentencing hearing and his June 2007 surrender date would provide him with the ability to pay the nominal amount of $300. In addition, the fact that defendant was eligible for work furlough provided him with the opportunity to continue his employment throughout his jail term. The fact that defendant had unspecified matters pending in another county did not contradict this substantial evidence that defendant had the ability to pay $300 within six months after the April 2007 sentencing hearing. The court’s order is supported by substantial evidence.
B. Probation Supervision Fee
Defendant complains that the trial court allegedly required him, as a condition of probation, to pay a probation supervision fee of up to $64 per month. He concedes that a probation supervision fee may properly be ordered, he contests only the trial court’s alleged inclusion of the payment of this fee as a condition of probation.
We do not read the record to indicate that the court’s order that defendant pay a probation supervision fee was an order that the payment of this fee would be a condition of defendant’s probation. The probation report recommended that “[a] Probation Supervision Fee not to exceed $64.00 per month be imposed pursuant to Section 1203.1b of the Penal Code” and that defendant be ordered to pay “Attorney fees if appropriate.” The trial court, in a single sentence, imposed the recommended probation supervision fee, in the recommended amount, and ordered defendant to pay $300 in attorney’s fees. Penal Code section 1203.1b authorizes a court to impose a probation supervision fee. It says nothing about doing so as a condition of probation. Since the trial court imposed the fee as recommended in the probation report, and the probation report recommended that the court do so under Penal Code section 1203.1b, it is reasonable to conclude that the court imposed the fee under Penal Code section 1203.1b, rather than as an unauthorized condition of probation.
The mere fact that, after imposing the probation supervision fee and the attorney’s fees order, the trial court asked whether there were any “other conditions,” does not, in this context, support the conclusion that all of the preceding fines and fees were imposed as conditions of probation. The trial court did not err in ordering defendant to pay a probation supervision fee under Penal Code section 1203.1b.
III. Disposition
The probation order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Duffy, J.