Opinion
C085273
09-13-2019
THE PEOPLE, Plaintiff and Respondent, v. JESSICA MAELYNN BULLOCK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CRF1545, CRF162064, CRM161628)
Defendant Jessica Maelynn Bullock pleaded no contest to second degree burglary and misdemeanor counts of making criminal threats and vandalism. The court suspended imposition of sentence and placed her on probation for three years with various terms and conditions.
Defendant does not challenge her underlying convictions but claims insufficient evidence shows she had an ability to pay several financial obligations imposed by the court, including (1) $1,000 in attorney fees; (2) a $370 fee for the presentence probation report; (3) a monthly $40 probation supervision fee for 36 months; and (4) five $43.50 criminal justice administration fees. She further contends the court could not rely on any potential earnings up to and including the minimum wage in impliedly finding an ability to pay, and that equal protection principles mandate that wage exemptions available to civil judgment debtors must also be made available to criminal probationers.
We agree with defendant that the record lacks substantial evidentiary support for the challenged fees. We shall therefore strike the attorney fees, the probation report fee, the costs of probation supervision, and the booking fee. Given this conclusion, we do not decide defendant's remaining arguments on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2015, defendant swung an axe at Dana H., threatening to kill her. Apparently, defendant was married to Dana H.'s adoptive father, and after his death in November 2014, a dispute arose between defendant and Dana H. over ownership of his house (the property). Sheriff's deputies responded to the property and defendant was arrested.
In August 2016, defendant had a verbal argument with the property's occupant, Altamont S. During the argument, defendant shot a BB gun at the window of Altamont's car. She fled the scene.
Three months later, in November 2016, defendant returned to the property and stole items belonging to the then occupants, Jeremy T. and Hanna L. Sheriff's deputies later found the stolen property at defendant's residence.
In April 2017, defendant was charged with making criminal threats on January 22, 2015 (Pen. Code, § 422—count 1), vandalism on August 16, 2016 (§ 594, subd. (b)(1)— count 2), and first degree burglary on November 3, 2016 (§ 459—count 3). For count 1, it was alleged that defendant personally used a deadly and dangerous weapon, an axe.
Undesignated statutory references are to the Penal Code.
Defendant was originally charged in July 2015 with making criminal threats based on the January 2015 incident involving Dana H. In August 2015, she pleaded no contest. Her plea was later set aside and the criminal threats charge was eventually consolidated with the subsequent vandalism and first degree burglary charges.
The prosecutor later reduced count 1 to a misdemeanor and reduced count 3 to second degree burglary. Defendant entered no contest pleas to all three counts in June 2017.
Prior to sentencing, probation prepared a presentence report which stated that Dana H. did not request restitution because "defendant [did] not have the ability to pay any restitution." According to the report, defendant had graduated from high school and attended two or three years of community college, but did not obtain a degree. Around 2011, she suffered a neck injury requiring surgery; she was seeking workers' compensation for the injury. An additional neck surgery was possibly needed. Defendant was unemployed and her parents and brother supported her financially. Nevertheless, the probation report recommended the court find that defendant had the future financial ability to pay, among other things, monthly $40 probation supervision costs, $370 for a presentence report, the cost of attorney fees in an amount to be determined by the court, and five booking fees in the amount of $43.50 each.
In connection with her original plea that was later set aside, defendant filed a "Statement of Assets" in October 2015 in which she represented that she had no sources of income or occupation, she had no cash, bank deposits, or real or personal property, and she did not own any other type of assets such as stocks, bonds, mutual funds or other securities.
At the sentencing hearing in July 2017, the court suspended imposition of sentence and placed defendant on formal probation for three years and awarded 732 days of presentence credit. As a condition of probation, the court ordered defendant to "[s]eek and maintain gainful employment and provide proof of job searches. If disabled, provide proof of disability. [¶] Satisfactorily participate in job training or educational programs." The court ordered that "[c]ase-related costs will be paid through and as directed by Court Collections Division."
During the hearing, defense counsel raised the issue of fines and fees. He requested that the court strike all nonmandatory fines and fees, and that "all mandatory fines and fees be reduced to the statutory minimum due to [defendant's] inability to pay," noting that she was unemployed. The court did not directly address counsel's inability to pay argument; instead, the court changed topics to flash incarceration.
The court then imposed the minimum restitution fine of $300 (§ 1202.4), and a $300 probation revocation restitution fine, which was suspended unless probation was revoked (§ 1202.44). The court also ordered defendant to pay $1,000 in attorney fees (§ 978.8). The court informed defendant that she had a right to a hearing on the amount of attorney fees, and asked whether she agreed to the sum. Defendant replied, "Is that for me?" The court responded, "That's for you," and defendant replied, "Yes, [y]our Honor." The court further ordered defendant to pay $217.50 in booking fees ($43.50 each for five booking fees) (Gov. Code, § 29550.2, subd. (a)), $370 for a presentence probation report fee (§ 1203.1b), and monthly $40 probation supervision fees for 36 months (§ 1203.1b).
Defendant timely appealed, raising only issues related to the fees imposed. While the appeal was pending, defendant filed a motion in the trial court pursuant to section 1237.2 to reconsider and correct the fees imposed by the court. The court summarily denied the motion.
DISCUSSION
Recoupment statutes like those governing the attorney fees, booking fees, and probation-related costs defendant challenges on appeal, "reflect a legislative concern for ' "replenishing a county treasury from the pockets of those who have directly [benefitted] from county expenditures." ' " (People v. Flores (2003) 30 Cal.4th 1059, 1063; People v. Amor (1974) 12 Cal.3d 20, 27.) But each statute—former Penal Code section 987.8, Government Code section 29550.2, and Penal Code section 1203.1b—requires the court to determine that a defendant has an ability to pay the respective fee before imposing it. (People v. Neal (2018) 29 Cal.App.5th 820, 826 [where a statute posits ability to pay as a precondition of a requirement to pay a fee, a defendant has the right to a determination of her ability to pay the fee before the court may order payment].) And substantial evidence must support an ability to pay determination. (See, e.g., People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1218 [insufficient evidence showed the defendant would be able to repay appointed counsel's attorney fees]; McCullough, supra, 56 Cal.4th at p. 598 [recognizing a defendant forfeits his right to challenge the sufficiency of the evidence to support imposition of booking fee on appeal if he fails to object below]; People v. Hoover (2011) 199 Cal.App.4th 1470, 1473 [sufficient evidence supported order requiring the defendant to pay probation investigation and supervision fees].)
Former section 987.8, which governed reimbursement of attorney fees for counsel appointed to represent indigent criminal defendants when defendant was placed on probation, provided that "[i]f the court determines that the defendant has the present ability to pay all or a part of the cost [of appointed counsel's legal services], the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability." (Former § 987.8, subd. (e)(5), [Stats. 2016, ch. 534, § 1, eff. Jan. 1, 2017 to Dec. 31, 2017].) The payment order "may be enforced in the manner provided for enforcement of money judgments generally but may not be enforced by contempt." (Ibid.) The current version of the statute, effective January 1, 2018, contains identical language. (See § 987.8. subd. (e)(2) [Stats. 2017, ch. 561, § 184, eff. Jan. 1, 2018; Stats. 2017, ch. 62, § 1, eff. Jan. 1, 2018].)
Government Code section 29550.2, subdivision (a) provides that "[i]f the person has the ability to pay, a judgment of conviction shall contain an order for payment of" a jail booking fee. The statute does not define ability to pay, but the People bear the burden of proving a defendant's ability to pay the booking fee. (People v. McCullough (2013) 56 Cal.4th 589, 598 (McCullough); Gov. Code, § 29550.2.)
Section 1203.1b authorizes the recoupment of certain costs of preparing preplea and presentence investigations and reports as well as the costs of probation supervision when the court suspends imposition of sentence and grants probation. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070 [§ 1203.1b "requires determinations of amount and ability to pay, first by the probation officer, and, unless the defendant makes 'a knowing and intelligent waiver' after notice of the right from the probation officer, a separate evidentiary hearing and determination of those questions by the court"].) Section 1203.1b, subdivision (b) provides in pertinent part: "The court shall order the defendant to pay the reasonable [probation-related] 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."
While the booking fee statute does not define "ability to pay" (Gov. Code, § 29550.2; McCullough, supra, 56 Cal.4th at pp. 598-599), both section 987.8 governing attorney fees and section 1203.1b covering probation investigation and supervision costs, define the phrase. According to those statutes, an "ability to pay" means the "overall capability" of a defendant to reimburse all or a portion of defense or probation-related costs. (See former §§ 987.8, subd. (g)(2), 1203.1b, subd. (e).) Factors to consider when determining ability to pay include: the defendant's present financial position, his reasonably discernible future financial position over the subsequent six months for attorney fees and one year for probation costs, including the likelihood of employment during that time, and any other factor that may bear upon the defendant's financial capability to reimburse the county for the costs. (Former §§ 987.8, subd. (g)(2), 1203.1b, subd. (e).)
As noted above, the probation report recommended that the court find defendant had an ability to pay, among other things, attorney fees (which the court determined totalled $1,000), five $43.50 booking fees (for a total of $217.50), $370 for the cost of the probation report, and monthly $40 probation supervision fees for 36 months (totaling $1,440). Although defense counsel raised an inability to pay objection at the hearing, arguing defendant did not have an ability to pay the fees because she was unemployed, the court imposed the fees as probation recommended. Defendant contends insufficient evidence supports the trial court's implied finding that she had the ability to pay the challenged fees. We agree.
The record shows that defendant was unemployed at the time of the sentencing hearing in July 2017, and had been for a significant period of time—at least six years. Her parents and her brother completely supported her.
Defendant's husband died in 2014, and there is no indication that she inherited any property from him; the house she lived in with him and which was the property underlying the criminal charges, was apparently awarded or sold to someone else. She also had a minor daughter who was within her care at least a portion of the time, which implies she had at least some expenses associated with her child.
Around 2011, defendant sustained an alleged workplace injury, requiring surgery on her neck. An additional surgery was possibly required and it appears that she had not worked since the injury. As of 2015, she had no discernible income, assets or other property to her name. One of the victims did not request restitution specifically because "defendant [did] not have the ability to pay any restitution."
While it is true that defendant had attended a few years of community college, she never completed her degree. And although she reported being in fair health, she continued to seek medical treatment for her neck injury and had not worked for a long time. (Cf. People v. Viray, supra, 134 Cal.App.4th at pp. 1217-1218 [although the defendant was relatively young, had previously attended a foreign college, and claimed to be in good health, evidence not sufficient to support court's finding that the defendant had ability to pay $9,200 in attorney fees where her house was mortgaged, she had not been employed for a significant period of time, and she suffered from breathing problems for which she received disability benefits].)
Given the above, defendant's present financial position at the time of the hearing was, to say the least, dismal. And the evidence does not support a reasonable expectation of gainful employment in the future, especially given her felony conviction. (James v. Strange (1972) 407 U.S. 128, 139, [32 L.Ed.2d 600, 609] ["A criminal conviction usually limits employment opportunities"].)
The fact that the court ordered defendant to seek and maintain gainful employment during the probationary period, moreover, reveals nothing about her financial position, earning ability, or her expenses—all of which bear on the ability to pay determination. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399, disapproved on other grounds in People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5.) Her health ailments only exacerbate the unlikelihood of obtaining and keeping employment.
In light of these facts, we conclude insufficient evidence shows defendant had an ability to pay the attorney fees, booking fees, and probation investigation and supervision fees. We shall therefore order them stricken.
To the extent defendant acquiesced in the amount of attorney fees that the court considered sufficient to compensate the public defender for his representation, we do not believe she conceded she had the ability to pay the amount so identified by the court. This is especially so given her counsel's immediately preceding objection that all nonmandatory fines and fees be stricken because she lacked the ability to pay them. We therefore reject the People's point, asserted without argument or discussion, that defendant waived a hearing on attorney fees.
Because we conclude insufficient evidence supports the challenged fee orders, we need not address defendant's imputed income, wage exemption, and equal protection arguments.
DISPOSITION
Defendant's convictions are affirmed. The $1,000 in attorney fees, $217.50 for five booking fees, $370 for the cost of the probation report, and monthly $40 probation supervision fees for 36 months are stricken. As modified, the judgment is affirmed. The clerk is directed to prepare an amended probation order and provide a copy to the Yuba County probation department.
/s/_________
Butz, J. We concur: /s/_________
Raye, P. J. /s/_________
Murray, J.