Opinion
H036421
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. GUY DANIEL BLANCO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS102480)
I. STATEMENT OF THE CASE
Defendant Guy Daniel Blanco pleaded no contest to one felony count of possession of a deadly weapon and one misdemeanor count of street terrorism with the understanding that he would receive felony probation and a maximum misdemeanor term of one year in jail. (Pen. Code, §§ 12020, subd. (a)(1), 186.22, subd. (a).) The court placed him on probation and imposed a 240-day jail term with some credit for time served. The court adopted the recommendation in the probation report concerning payment of a probation service fee and an ongoing probation-supervision fee based on defendant's ability to pay. (See § 1203.1b.)
All further unspecified statutory references are to the Penal Code.
On appeal, defendant claims the order to pay probation-related fees must be stricken because there was insufficient evidence to support a finding that he had the ability to pay them. Defendant also claims a notation in the minute order that defendant is required to pay a booking fee must be stricken.
We strike the booking fee from the minute order and affirm the order as modified.
II. FACTS
Given the issues raised on appeal, we briefly summarize the facts of defendant's offenses as reflected in his probation report.
On November 1, 2010, a deputy sheriff observed defendant staggering on the sidewalk apparently intoxicated and recognized him as a probationer, which defendant confirmed. Later, the deputy searched defendant's bedroom and found a sawed-off shotgun and clothing that bore markings suggestive of an defendant's affiliation with a Castroville Norteno gang.
III. PROBATION-RELATED FEES
Defendant contends that there was no evidence to support a finding that he had the ability to pay the probation-related fees, and therefore, the order requiring him to pay them must be stricken.
A. Forfeiture
Predictably, the Attorney General initially argues that defendant forfeited this claim by failing to object when the fees were imposed.
In People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco), this court rejected the identical claim concerning probation fees imposed under section 1203.1b. (Id. at p. 1397; cf. People v. Butler (2003) 31 Cal.4th 1119, 1125-1126 [claim of insufficient evidence to support HIV test not forfeited]; People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [same re order to reimburse for cost of appointed counsel]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1537 [challenge to conditional order to pay attorney fees "if appropriate" with no referral for ability to pay determination may be raised for first time on appeal]; but cf. People v. Valtakis (2003) 105 Cal.App.4th 1066, 1068, 1072 [failure to object to noncompliance with fee procedures forfeits claim]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 [same].) We continue to adhere to our conclusion in Pacheco.
The Attorney General cites People v. McCullough (2011) 193 Cal.App.4th 864, review granted Jun. 29, 2011, S192513, where the court rejected Pacheco and held instead that to preserve for review a claim challenging a fee or fine, the defendant must object at the time it is imposed. However, reliance on McCullough is negated by the fact that the Supreme Court granted review in that case.
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Moreover, as discussed below, there has not yet been a determination of defendant's ability to pay any amount of probation-related costs. Nor did the trial court order defendant to pay any specific amount. Under the circumstances, defendant did not even have an opportunity to challenge a determination of ability to pay below.
B. Ability to Pay
1. Statutory Procedure for Imposing Fees
Section 1203.1b, subdivision (a) provides, in relevant part, as follows: "In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, 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 . . . . 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, 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." (Italics added.)
Section 1203.1b, subdivision (b) 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, or his or her authorized representative." (Italics added.)
The section goes on to define " 'ability to pay' " as the "overall capability of the defendant to reimburse the costs" (§ 1203.1b, subd. (e)), including, but not limited to the defendant's: "(1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs." (§ 1203.1b, subd. (e)(1)-(4).)
2. Procedure in this Case
The probation report prepared for sentencing summarized some information that defendant had provided concerning his employment history. The report stated that for two weeks before his arrest, defendant worked at Guerrero Handyman Corporation for minimum wage. He also worked for Murphy's Movers sporadically on an on-call basis making $150 per day. In 2009, defendant worked at a Denny's for two months.
Concerning defendant's "FINANCIAL CAPABILITY," the probation officer opined, "The defendant is capable of attaining employment and should be held accountable for fines and fees imposed by the Court."
Concerning fines and fees, the report recommended that the court order defendant to contact the Monterey County Revenue Division immediately after release on probation to make arrangements to pay all fines, fees, and victim restitution "as directed by the Revenue Division." The report then recommended that the court impose and then suspend, pending successful completion of probation, a restitution fine (§ 1202.44). It recommended imposition of mandatory Court Security Fee (§ 1465.8, subd. (a)(1)) and a mandatory Court Facilities Assessment Fee (Gov. Code, § 70373). It further recommended the imposition of a criminal justice administration fee (Gov. Code, §§ 29550.1 & 29550.2).
Concerning "PROBATION SERVICE FEES," at issue here, the report recommended as follows: "The defendant is ordered to pay $864.00 for the cost of preparation of the probation report, plus $81.00 per month as the cost of supervised probation in accordance with his/her ability to pay. The defendant is ordered to provide the Probation Officer with financial information for evaluation. Unless otherwise stated, all financial obligations are to be paid through the Monterey County Revenue Division."
At sentencing, the court adopted the recommendation concerning probation-related fees, including that he "reimburse the county for probation services as outlined in the report." The minute order reiterated verbatim the recommendations outlined in the report.
3. Discussion
Clearly, the court accepted the probation officer's determination concerning the costs of the probation report and ongoing probation supervision. The court then conditionally ordered that defendant pay those amounts in accordance with his ability to pay. Viewed in light of the statutory procedures, we read the court's order to mean that defendant must pay an amount not to exceed the amounts set in the order and that amount would be based on a subsequent determination of his ability to pay any or all of the probation-related costs. Presumably for that purpose, the court ordered that defendant provide financial information to the probation officer.
The record does not show that defendant waived a hearing and determination by the court concerning his ability to pay some amount of probation-related costs. Nor does the record show that the probation department ever held a hearing to determine ability to pay some amount. Finally, the record contains no subsequent order to pay a specific amount based on a determination of defendant's ability to pay some amount.
Under the circumstances and in the absence of a determination of ability to pay in accordance with the statutory procedures quoted above, defendant is not currently and properly subject to an order to pay any particular amount of probation-related costs. At most, he is subject to an order for a determination of ability to pay that could require him to pay up to certain amounts depending on his financial ability. Accordingly, his challenge to the probation order on the ground that there is no evidence to support a finding of his ability to pay is, in essence, premature.
For this reason, we reject the Attorney General's argument that the record contains substantial evidence that defendant has the ability to pay the total amount set by the court.
IV. BOOKING FEE
Defendant notes that although the probation report recommended a booking fee (Gov. Code, § 29550.1 & 29550.2), the court did not orally impose it at sentencing. Nevertheless, the minute order reflects an order requiring payment of a booking fee. Thus, defendant contends that since the court did not orally impose the fee, the reference in the minute order must be stricken.
The Attorney General agrees that the court's failure to expressly impose the recommended fee implies a finding that defendant did not have the ability to pay it, which is a prerequisite to its imposition.
We agree that because the minute order does not accurately reflect the sentence as orally pronounced, it must be corrected and the reference to a booking fee stricken. (See People v. Zachary (2007) 147 Cal.App.4th 380, 385 [where there is a conflict, oral pronouncement controls over the minute order].)
V. DISPOSITION
We strike the reference to and order requiring defendant to pay a booking fee. As modified the probation order is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.