Opinion
2d Crim. No. B229516
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. ELAINA MARIE LAFUENTE, Defendant and Appellant.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1336800)
(Santa Barbara County)
Elaina Marie Lafuente appeals a judgment and a sentencing order following her no contest plea to attempted unlawful taking of a vehicle (Pen. Code, § 664; Veh. Code, § 10851, subd. (a)), a felony. The trial court suspended "pronouncement of judgment" and placed her on probation for three years on condition that she serve 180 days in county jail. It also ordered her to pay a $1,375 probation investigation fee and a $90 per month fee "for the cost of probation supervision." We conclude, among other things, that: 1) the trial court erred by not conducting an evidentiary hearing before deciding to impose the two probation fees, and 2) there was no evidence that Lafuente had the ability to pay these fees. (Pen. Code, § 1203.1b.) We vacate the order imposing these fees and remand with instructions and otherwise affirm.
FACTS
At the sentencing hearing, Lafuente's counsel requested the trial court to hold a hearing on probation fees. She claimed Lafuente lacked the ability to pay a $90 monthly probation supervision fee because she was currently receiving a monthly income of only $754. The probation report reflected that Lafuente had been receiving "Welfare, food stamps" and a housing subsidy. In that report, the probation officers said her monthly expenses for rent, food, utilities and a bail debt totaled $1,940, but her monthly income, which included welfare, was $1,800. They concluded that her "ability to pay is $30.00 per month."
Lafuente's counsel told the trial court that Lafuente's current financial situation was worse than what was reflected in the probation report. She noted that "[Lafuente] does not have custody of her children, nor does she have her employment. So we don't expect her to have that income, particularly from welfare." She said, "It looks like probation is suggesting that she pay $30 a month for probation supervision. So we'd ask the Court to reduce the fee . . . to $30." Counsel also said that a statement in the probation report that Lafuente had waived her right to a hearing was not correct. She claimed Lafuente had made an agreement with the probation department to pay $30 a month for probation service fees, but there was no waiver of any hearing rights.
The trial court said that the probation report indicated that there was a waiver of the right to a hearing. "[I]f she wants to have a hearing then counsel needs to notice a hearing . . . . It is not the normal hearing on ability to pay. It's a hearing, apparently, on some agreement or disputed agreement between she and probation." The court then ordered Lafuente to pay the $90 monthly fee and the $1,375 probation investigation fee. It did not take any testimony or conduct an evidentiary hearing before it imposed these fees.
DISCUSSION
The Right to a Hearing and Evidence of the Ability to Pay
Lafuente contends the trial court erred because it did not conduct a hearing on her ability to pay the $1,375 probation investigation fee and the $90 monthly probation supervision fee. She claims: 1) there is no evidence that she had the ability to pay these fees, and 2) the case must be remanded for a new hearing. The Attorney General agrees. They are correct.
Before a court imposes probation investigation and supervision fees, it must provide the defendant with the opportunity for a hearing and determine his or her "ability to pay" these fees. (§ 1203.1b, subd. (a).) The court is required to make findings, and "any finding of ability to pay must be supported by substantial evidence." (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.)
At the sentencing hearing, Lafuente's counsel requested the trial court to conduct a hearing before imposing these probation services fees. But the court ruled that counsel's oral request for a hearing was insufficient. After listening to a brief oral argument, it imposed these fees without holding any evidentiary hearing.
The trial court relied exclusively on the probation report in deciding that the two fees (the $90 monthly fee and the $1,375 probation investigation fee) were appropriate. But in the probation report, the probation officers stated, "[T]he defendant's ability to pay is $30.00 per month." This does not support any finding that Lafuente had the financial ability to pay $90 a month, and consequently there was no substantial evidence to support the court's order. (People v. Pacheco, supra, 187 Cal.App.4th at p. 1398.) Lafuente's counsel also said the probation report was incorrect. But by proceeding ahead and imposing the fees, the court was essentially resolving the dispute about the report's correctness against Lafuente without any evidence. The court's order was premature. Given counsel's offer of proof, a hearing was required before the court could make the required findings and determine the amount Lafuente could pay.
In addition, the trial court made assumptions about Lafuente's future ability to pay. It said, "We'll assume that she'll be able to obtain employment once she gets out of custody." But there was no evidence to support this assumption. Where a defendant is indigent, the court may not assume his or her financial condition will change for the better without evidence. Speculation that Lafuente will be able to pay a higher monthly fee in the future does not suffice. (Earls v. Superior Court (1971) 6 Cal.3d 109, 117-118.) Lafuente is entitled to a hearing with findings on her ability to pay these fees based on the evidence presented.
The order imposing the $90 monthly probation supervision fee and the $1,375 probation investigation fee is vacated. The matter is remanded to the trial court with instructions to hold a hearing on Lafuente's ability to pay these fees and to proceed in a manner consistent with this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
COFFEE, J.
PERREN, J.
Clifford R. Anderson III, Judge
Superior Court County of Santa Barbara
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.