Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE306010 Charles W. Ervin, Judge.
IRION, J.
John Michael Schweihs entered a negotiated guilty plea to one count of burglary (Pen. Code, § 459). Under the plea agreement, the prosecution agreed to dismiss three other counts: grand theft; receiving stolen property; and using personal identifying information of another to commit theft. The trial court placed Schweihs on formal probation for three years and ordered him to serve 150 days in custody. Additionally, the court ordered Schweihs to pay a total of $1,262 in fines and fees, which included a $40 court security fee and a $30 criminal conviction assessment fee. The total of $1,262 did not include fees for payment of probation costs.
Statutory references are to the Penal Code unless otherwise specified.
Schweihs appeals, contending (1) the trial court erroneously denied his request for a hearing before requiring him to pay $1,127 for the cost of preparing a probation report, (2) payment of probation costs cannot be imposed as a condition of probation, and (3) the $40 court security fee and the $30 criminal conviction assessment fee were improperly imposed as probation conditions.
FACTS
In pleading guilty, Schweihs agreed the factual basis for the plea was that he unlawfully entered a Home Depot store with the intent of committing a theft. According to the probation report, the store's surveillance video showed Schweihs purchasing a lamp and a lock for $84.38 with a stolen credit card.
At the sentencing hearing, defense counsel objected to his client being charged $1,127 for a presentence report and requested a hearing to have probation prove the basis of the fee. In denying the hearing request, the court said: "You may be right, counsel, that [Schweihs] may be entitled to a determination in a public forum as to how probation calculates the $1,127 in this case, which are the costs for the presentence investigation report. But this court is not inclined to set a hearing to that purpose."
DISCUSSION
I. Denial of a Hearing on the Costs of Probation
Schweihs contends the trial court erred when it denied defense counsel's request to hold a hearing on the cited amount for probation costs in the probation report. Specifically, Schweihs claims (1) the court violated section 1203.1b, and (2) there was insufficient evidence to support the cited amount. The contention is without merit because the hearing request was premature.
At issue is paragraph 15 of the Order Granting Probation, which contains the standard boilerplate language regarding a probationer's responsibilities regarding probation costs. Paragraph 15 ordered Schweihs to cooperate with the probation officer in completing a financial evaluation to determine his ability to pay for the probation costs associated with the case, including the preparation of the presentence investigation report. The paragraph goes on to discuss Schweihs's option to request a hearing on his ability to pay. The probation department set the cost of Schweihs's presentence investigation at $1,127 and recommended the monthly cost for his probation supervision not exceed $99.
The boilerplate language of paragraph 15 reads: "You are ordered to cooperate with the probation officer or their authorized representative as directed, in the completion of the financial evaluation required under [Penal Code section] 1203.1b. If it is determined that you have the present ability to repay the county for all or any part of the costs of the pre-sentence investigation and/or costs of probation supervision, the county will request that a judgment be issued against you for these amounts. If you do not agree with the determination, you have a right to a hearing before the court for a decision on your present ability. Failure to report and cooperate in the financial evaluation within 180 days of the date of this order will be deemed a waiver of your right to such a hearing, and a civil judgment will be entered against you for the amount of the funds expended for the above services. These costs are presently set at $_____ for the pre-sentence investigation and up to $____ per month for probation supervision. Payment of any costs so determined shall be to Revenue and Recovery. Any judgment obtained may be enforced in the manner of any civil judgment."
First, we note that to the extent Schweihs is arguing the trial court ordered him to pay $1,127 for the probation report, he is mistaken. Paragraph 15 of the probation order did not order Schweihs to pay any amount for probation costs at that time. Paragraph 15 merely ordered Schweihs to report to and cooperate with the probation department in evaluating his ability to pay in connection with the costs of probation services. Paragraph 15 further explained that Schweihs is entitled to a hearing if he disagrees with the probation department's financial evaluation. If Schweihs fails to report and cooperate with the probation department as ordered, he will be legally deemed to have waived his right to such a hearing.
Paragraph 15 is authorized and is in keeping with section 1203.1b, subdivision (a), which provides for the recoupment of certain probation costs, including the preparation of the presentence investigation report. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070.)
Section 1203.1b., subdivision (a) provides in relevant part: "In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report..., and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer..., 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 reasonable cost of these services and of probation supervision... shall not exceed the amount determined to be the actual average cost thereof.... 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... 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."
The listing of $1,127 as the cost of the presentence investigation report and the listing of the monthly supervision at a cost not to exceed $99 put Schweihs on notice of the costs as calculated by the probation department. Whether Schweihs will be ordered to pay those amounts will depend, on among other things, on his ability to pay.
Counsel's request for a court hearing was premature. Schweihs will be entitled to a hearing on the issue only after he (1) follows the directive of paragraph 15 and reports to and cooperates with the probation department in the completion of the financial evaluation and (2) requests such a hearing. (See § 1203.1b, subd. (b).) If Schweihs wants to contest the reasonableness of the costs figures, he can raise the issue at such a hearing. "The reasonable cost of these services and of probation supervision... shall not exceed the amount determined to be the actual average cost thereof." (§ 1203.1b., subd. (a).)
Section 1203.1b, subdivision (b) also provides 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...."
II. Recoupment of Probation Costs is Not a Probation Condition
Schweihs is correct that payment of probation costs is not properly a condition of probation. (People v. Hall (2002) 103 Cal.App.4th 889, 892.) These "costs are collateral and the statute itself provides for enforcement of the order by civil collection." (People v. Hart (1998) 65 Cal.App.4th 902, 907.)
However, in this case Schweihs was not ordered to pay the probation costs (see Part I, ante), and, therefore, payment of these costs was not made a condition of probation. What Schweihs was ordered to do pursuant to paragraph 15 of the probation order, was to report to and meet with the probation department to help the department complete an evaluation of his ability to pay. Failure to comply with paragraph 15 will not be a violation of his probation, but it will result in the loss of his right to a hearing under section 1203.1b, subdivision (b).
III. Court Security and Conviction Assessment Fees Should Not be Probation Conditions
Schweihs contends the trial court improperly imposed a $40 court security fee, which is authorized under Penal Code section 1465.8, and a $30 criminal conviction assessment fee, which is authorized under Government Code section 70373, as conditions of probation. As the Attorney General acknowledges, neither of these fees is enforceable as a probation condition because such fees are collateral to a defendant's crimes. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402.)
The Attorney General suggests the record is unclear as to whether the court imposed these two fees as conditions of probation. We disagree. The court said: "The balance of the recommendations are appropriate, and I adopt each and every term and condition as set forth with it.... All of them will be adopted, all of them will be ordered."
"An order directing payment of collateral costs like the court security fee is thus not enforceable as a probation condition but instead only as a separate money judgment in a civil action, and the order should thus be imposed as a separate order entered at judgment." (People v. Pacheco, supra, 187 Cal.App.4th at p. 1403.) Accordingly, we will modify the judgment to delete the court security fee and the criminal conviction assessment fee as conditions of probation and clarify that imposition of these two fees shall be made by separate order.
DISPOSITION
The case is remanded to the trial court with directions to delete the $40 court security fee and the $30 criminal conviction assessment fee as conditions of probation and to impose these in a separate order. In all other respects, the judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.