Opinion
A102000
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERT W. FRISELLA, Defendant and Appellant.
After pleading guilty to misdemeanor child endangerment (Pen. Code, § 273a, subd. (a)), appellant Robert W. Frisella was placed on probation for four years on the condition that he serve six months in jail, and was ordered to pay a $175 presentence report preparation fee and a $165 probation supervision fee (§ 1203.1b). Appellant challenges the imposition of these fees. We affirm.
I.
Appellants presentence report recommended imposition of the fees in question. According to the report, appellant received disability benefits of $364 every two weeks, and his wife earned approximately $380 per week. Their living expenses included monthly house payments of $400 and monthly car payments of $379. Appellant reported "no significant assets," and said he could not give specific amounts for their food, utility, and credit card expenses because his wife handled the payments.
At the sentencing hearing, the following exchange occurred: "The Court: "You are to pay a 175-dollar report preparation fee, and a 165-dollar supervision fee in a manner to be determined by Probation. Those last two fees are not conditions of probation. [¶] Do you accept the imposition of those fees without a hearing on your ability to pay? [¶] [Defense Counsel]: Well, there is an issue because if hes going into jail, Im not sure what happens to any disability payments or Workers Comp payments. And he may not have any money. Id like to have that issue reserved. [¶] The Court: Ill make that order, and Ill allow you to talk to your probation officer. If you can work it out, come back to court, and well take that matter up another time. [¶] [Defense Counsel]: I object to the order without a hearing on it. [¶] The Court: Your objection is noted."
II.
Appellant contends that the court erred by imposing the report and supervision fees without a hearing on his ability to pay them.
Section 1203.1b provides:
"(a) . . . in any case in which a defendant is granted probation . . . the probation officer, or his or her authorized representative . . . shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision . . . , of conducting any presentence investigation and preparing any presentence report . . . whichever applies. . . . 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 defendants 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 defendants 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.
"(b) 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 these costs . . . . [¶] . . . [¶]
"(c) The court may hold additional hearings during the probationary or conditional sentence period to review the defendants financial ability to pay the amount, and in the manner, as set by the probation officer, or his or her authorized representative, or as set by the court pursuant to this section. . . . ."
Under this statute, whether the defendant is able to pay the fees in question and desires a court hearing on the subject are issues to be taken up with the probation officer in the first instance. However, it does not appear that either issue was addressed prior to the sentencing hearing in this case. Although the presentence report recounted some of appellants financial circumstances and recommended imposition of specific fee amounts, it did not include any finding on his ability to pay and reflected little investigation of the question. Appellant said that he could not confirm his expenses because his wife handled the family finances, and there was evidently no further inquiry on the subject. Moreover, the report did not indicate whether appellant was advised of his right to a court hearing on his ability to pay, or whether he had waived that right.
Faced with this situation not contemplated by the statute, the court did not err in referring the matter back to the probation officer and imposing the recommended fees subject to a later court hearing if appellant wanted one. The conditional imposition of fees potentially obviated the need for a hearing, and preserved appellants rights in the event that the matter could not be worked out with the probation officer in accordance with the statute.
III.
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J. --------------- Notes: All further statutory references are to the Penal Code.