Opinion
A149257
05-25-2017
THE PEOPLE, Plaintiff and Respondent, v. RONALD KIRT FUDGER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. SCN226235)
Defendant Ronald Kirt Fudger pled guilty to one felony count of driving while under the influence of drugs (Veh. Code, § 23152), and he now appeals the imposition of a probation supervision fee, a jail booking fee and an award of costs for preparing the presentence and investigation report. We reverse.
BACKGROUND
After Fudger entered his guilty plea, the probation department prepared a report recommending he be placed on probation subject to various terms and conditions. It also recommended Fudger pay a number of fines and costs, including "up to $150.00 for the cost of the pre-sentence investigation if PSI is prepared pursuant to Section 1203.1[, subdivision] (b) of the Penal Code," "supervision costs of $50.00 a month in a manner as determined by the Probation Officer," and a jail booking fee of "up to $135.00" pursuant to Government Code section 29550.1.
According to the report, Fudger, who had a lengthy criminal history and had been sentenced to prison three times, was currently homeless and unemployed, with "no verifiable history of employment," no income, no assets and "no visible means of financial support."
According to the probation report's narrative of the offense, the car he had been driving when arrested belonged to someone else.
The probation department did not recommend Fudger reimburse the cost of his defense. Its report stated that "[b]ased solely on the financial information provided by the defendant, and pending final verification . . . from the Comprehensive Collection Unit of the Superior Court, the defendant does not appear to have the ability to pay the attorney fee recoupment costs pursuant to Section 987.8 of the Penal Code and as determined by the Court."
At the subsequent sentencing hearing, defense counsel objected at the outset to the imposition of monthly probation supervision fees, a jail booking fee and the costs of a presentence report. We quote that colloquy in full:
"[DEFENSE COUNSEL]: Your Honor, it's noted in the probation report on the next to the last page, page 11, that Mr. Fudger does not have the financial ability to pay. Under the statute, the Probation Department is not supposed to suggest probation fees unless there is an ability to pay determined previous to sentencing. [¶] I think they've already determined there is no ability to pay. So I would object to the imposition of probation supervision fees of $50 a month and the jail booking fee of $135 and the cost of the presentence and investigation report of $150. I would object based on inability to pay.
"THE COURT: What's the People's position on that?
"[PROSECUTOR]: Well, as to the booking fee, the defendant was in fact booked into county jail. So I do believe the booking fee does attach. So there's the $50 probation cost, the $135 booking fee, and then the PSR.
"THE COURT: And $50 a month.
"[PROSECUTOR]: Correct. So as to the PSR, I do believe that applies to everyone. As to the $50 a month cost, that is based on ability to pay. It may very well be that Mr. Fudger does not have the present ability to pay it so the Probation Department should not be levying it, but my understanding is that the Court should order it based on the ability to pay in case there is a future ability to pay. I see [defense counsel] shaking her head. Maybe she knows something I don't, but I've actually never heard this argument before so I'm not familiar with the exact language of the statute.
"THE COURT: [Defense counsel] brings a wealth of experience from other counties so I'm always interested to hear what she has to say. This is one I've never heard before either. [¶] Go ahead.
"[DEFENSE COUNSEL]: I disagree, your Honor. In the statute—it's in 1203—I always forget exactly what section—the Probation Department is not even supposed to suggest it unless there's a determination prior to sentencing. As far as the prejail booking fee, that's also a nonmandatory fine that is subject to ability to pay. . . .
"THE COURT: I'll take that under submission. Anything more?
"[PROSECUTOR]: I don't have any great objection to anything that [defense counsel] stated. The only thing I will also note for the Court is that the $135 booking fee was set forth in the disposition and it's part of the plea form. The probation costs and the PSR costs are not included in the plea form. And with that I'll submit.
"THE COURT: Does any party wish to be heard before sentencing?
"[PROSECUTOR]: No, your Honor.
"[DEFENSE COUNSEL]: No, your Honor."
At the conclusion of the hearing, the court suspended imposition of sentence and placed Fudger on probation subject to various terms and conditions, and imposed various fines and costs. Among them were probation costs "up to an amount of $50 per month," and a $135 booking fee pursuant to Government Code section 29550.2. The court directed Fudger "to report to the Collections Unit" of the court "forthwith or within 48 hours of release from custody to make arrangements to pay the fine and other monetary obligations."
This timely appeal followed.
DISCUSSION
Fudger argues none of the three challenged fees should have been imposed because there is no evidence of his ability to pay them. We agree.
Before turning to the merits, though, we first briefly address the sole ground upon which the People urge us to affirm these rulings: the contention that Fudger forfeited his objections. The People acknowledge that defense counsel objected to the fees at the hearing, but contend that wasn't sufficient because "the trial court gave [Fudger] the opportunity to challenge his ability to pay the fee when he reported to the court's Collections Unit in order to have a court financial officer evaluate [his] ability to pay." Thus, the People argue, the objection was forfeited under People v. Aguilar (2015) 60 Cal.4th 862.
We do not agree. Aguilar doesn't require a defendant to object to the imposition of such fees twice. Aguilar merely held that a defendant's objections were forfeited because he objected neither at the time of sentencing, nor later before the probation officer to whom the court had referred him. (See Aguilar, supra, 60 Cal.4th at pp. 867-868.) Far from supporting the People's forfeiture theory, Aguilar approved the very procedure followed here: the court explained that the defendant "of course, could have objected when the court, at sentencing, announced the fees it was imposing, which largely tracked those recommended in the presentence investigation report." (Ibid.; accord, People v. Trujillo (2015) 60 Cal.4th 850, 861 ["the sentencing hearing is, in general, the proper time for a defendant to assert all available procedural and factual contentions relating to the trial court's sentencing choices" including ability to pay probation costs].) That is what defense counsel did. There was no forfeiture.
The jail booking fee. Government Code section 29550.2, subdivision (a), states: "If the person has the ability to pay, a judgment of conviction shall contain an order for payment" of a jail booking fee. Under this provision, a criminal defendant has the right to a determination of his ability to pay the booking fee before a court orders its payment. (People v. McCullough (2013) 56 Cal.4th 589, 592-593.) And the statute places the burden on the People of proving a defendant's ability to pay the fee. (Id. at p. 598.) We agree with Fudger there is no evidence he can pay the booking fee, and the People do not contend otherwise. Accordingly, the trial court erred in imposing it.
The probation supervision fee and award of costs for the probation report. "A defendant who is granted probation may be ordered to pay the costs of probation supervision and the preparation of probation reports, if he is financially able to do so." (People v. Hall (2002) 103 Cal.App.4th 889, 892; see Pen. Code, §1203.1b, subds. (a), (e).) Section 1203.1b of the Penal Code requires an evidentiary hearing concerning the defendant's ability to pay such costs unless the defendant, after having being informed by the probation officer of the right to such a hearing, knowingly and intelligently waives that right. (See § 1203.1b, subds. (a), (b).) Furthermore, as explained by Hall, the statute "does not specify the procedure a trial court should follow if it determines a defendant is unable to pay any part of his probation costs. The obvious implication from the language of Penal Code section 1203.1b, subdivision (b)(2), however, is that the court should not order the defendant to pay any portion of the costs." (Hall, at pp. 893-894.) In other words, as Hall explained, "[i]f the court determines the defendant lacks the ability to pay any part of the costs, it cannot, consistent with Penal Code section 1203.1b, subdivision (b)(2), order the defendant to reimburse the county for any costs." (Id. at p. 894.)
Here, the record does not reflect Fudger was ever advised of his right to a judicial determination of his ability to pay, much less that he validly waived that right. We needn't remand the matter for a hearing, though, because the record reflects that Fudger is indigent and unable to pay and, again, the People do not contend otherwise. As detailed above, the probation department investigated Fudger's financial situation and concluded he was, in a word, destitute. No home. No job prospects. No income or assets. No employment history. And no independent source of financial support. In these circumstances, there would be no apparent purpose for a hearing.
Finally, we also note the record does not clearly reflect whether the court imposed a fee for the probation department's report. Given the parties' uncertainty in this regard, we will direct the court on remand to clarify that none of the above-discussed costs are imposed.
It appears that both Fudger and the People believe the court did, or might have, imposed this fee. The People assert at page 6 of their brief, without a record citation, "[t]he trial court imposed the fees." And Fudger states "[i]t is not clear whether the trial court imposed the $150 cost of the presentence and investigation report." --------
DISPOSITION
The orders requiring Fudger to pay probation costs up to an amount of $50 per month and a $135 booking fee shall be stricken from Fudger's sentence, and the sentence modified to state that no probation costs pursuant to Penal Code section 1203.1b are imposed. The judgment in all other respects is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.