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People v. Johns

California Court of Appeals, First District, Fifth Division
Mar 20, 2008
No. A116805 (Cal. Ct. App. Mar. 20, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GENEA TAMIRA JOHNS, Defendant and Appellant. A116805 California Court of Appeal, First District, Fifth Division March 20, 2008

NOT TO BE PUBLISHED

San Mateo County Super. Ct. Nos. SC062598 & SC041503

Simons, J.

Defendant Genea Tamira Johns appeals the imposition of a probation supervision fee and a court security fee as conditions of her probation after she pled no contest to identity theft (Pen. Code, § 530.5, subd. (a)) and second degree burglary (§ 460, subd. (b)), and admitted a probation ineligibility allegation due to prior convictions. (§ 1203, subd. (e)(4).)

All undesignated section references are to the Penal Code.

Background

The background facts are taken from the probation officer’s report.

On March 22, 2005, appellant and an accomplice entered an Infiniti car dealership in Colma and attempted to purchase a $40,000 sports car using a driver’s license bearing her picture but the identifying information of victim Tina Chavez. Appellant also filled out a credit application using Chavez’s personal credit information. When the sales associate became suspicious, appellant and her accomplice fled.

At the sentencing hearing, the court suspended imposition of sentence and placed appellant on five years probation. Included as a condition of her probation, the court imposed payment of a $200 restitution fund fine plus a collection fee (§ 1202.4), a $20 court security fee (§ 1465.8), and a monthly $75 probation supervision fee (§ 1203.1b, subd. (a).)

Discussion

I. Probation Supervision Fee

Appellant contends, and the People concede, the probation supervision fee (§ 1203.1b) was erroneously imposed as a condition of appellant’s probation. A defendant who is granted probation may be ordered to pay the costs of probation supervision and the preparation of probation reports, if he or she is financially able to do so. (§ 1203.1b, subds. (a) & (b).) However, payment of such costs cannot be made a condition of probation. (People v. Hall (2002) 103 Cal.App.4th 889, 892; People v. Hart (1998) 65 Cal.App.4th 902, 907.) The reason is that section 1203.1b costs are collateral and the statute itself provides for enforcement of the order by civil collection. (Hart, at p. 907.) The trial court may also order a defendant to pay for costs of probation, but may not condition the defendant’s grant of probation upon payment thereof. (Ibid.) When such costs are erroneously imposed as conditions of probation, the remedy is to modify the order granting probation by deleting the order to pay costs of probation from the conditions of probation, and making it simply an order entered at judgment. (Ibid.)

Appellant also contends that it was improper to order her to pay a probation supervision fee because neither the probation officer nor the trial court made a determination of her ability to pay the probation supervision fee, or informed her of her right to a hearing on her ability to pay. The People argue that appellant’s claim regarding the lack of notice or findings on her ability to pay is waived by her failure to raise it at trial.

Penal Code section 1203.1b provides in pertinent part: “(a) In any case in which a defendant is . . . granted probation . . ., the probation officer . . . shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision . . . . [¶](b) . . . 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 . . . .”

Section 1203.1b, subdivisions (a), (b) and (c) require “the probation officer to determine a defendant’s ability to pay all, or a portion of the reasonable cost of probation supervision and probation report preparation. The statute also requires the probation officer to inform the defendant he has a right to have the court determine his ability to pay and the payment amount. The defendant may waive the right to such a determination only by a knowing and intelligent waiver. [Citation.] Absent such a waiver, a court must conduct an evidentiary hearing. If the court determines the defendant is able to pay all or part of the costs, the court is required to set the amount of the payment and order the defendant to pay that amount to the county in a manner that is reasonable and compatible with the defendant’s financial ability. [Citation.] The statute also provides for additional hearings during the period of probation to review the defendant’s ability to pay the probation costs. [Citation.]” (Hall, supra, 103 Cal.App.4th at pp. 892-893.)

The People rely on People v. Valtakis (2003) 105 Cal.App.4th 1066, 1068, in which Division Two of this court held: “a defendant’s failure to object at sentencing to noncompliance with the probation fee procedures of . . . section 1203.1b waives the claim on appeal, consistent with the general waiver rules of People v. Welch (1993) 5 Cal.4th 228 . . . and People v. Scott (1994) 9 Cal.4th 331.” (Fn. omitted.) While we agree with the reasoning in Valtakis, it is factually distinguishable from the instant case, requiring a different result.

In Valtakis, the defendant entered into a negotiated plea and initialed an entry of plea form. The form included a provision stating that he would “be subject to fines that may vary in amount from $10.00 to $20,000.” (People v. Valtakis, supra, 105 Cal.App.4th at pp. 1068-1069.) The probation report recommended various fees, including a $250 probation fee pursuant to section 1203.1, but contained no determination of ability to pay or advisement of a right to a separate hearing on that issue. (Id. at p. 1069.) Neither the defendant nor his trial counsel objected to the sentencing court’s order that the defendant pay a $250 probation service fee. (Ibid.)

Unlike the defendant in Valtakis, appellant was not informed through the probation report that imposition of costs pursuant to section 1203.1b was recommended. Appellant’s probation report recommended that appellant pay a $200 restitution fine plus a 10 percent collection fee (§ 1202.4); a $200 parole revocation fine, to be stayed pending successful completion of parole (§ 1202.45); and a $20 court security fee. The probation report made no mention of the $75 probation supervision fee. Based on the record before us, it appears that appellant was first apprised that she was to pay $75 at the sentencing hearing when the court stated, “$220 plus $20, plus $75 per month, all payable through the probation department as directed.” However, the court’s statement does not identify the nature of the $75 charge or even identify it as a fee. Appellant was apparently first notified of the $75 probation supervision fee in the minute order from the sentencing hearing, which states, “Defendant to pay a supervised probation fee in the amount of $75 per month, pursuant to [section] 1203.1b, payable through the probation department.”

“[I]n the analogous context of restitution and restitution fines, it has been held that ‘[a] defendant’s due process rights are protected when the probation report gives notice of the amount of restitution claimed and expected to be ordered . . ., and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing.’ ” (People v. Phillips (1994) 25 Cal.App.4th 62, 74.) We conclude appellant had insufficient notice at the time of sentencing, distinguishing Valtakis, and we reject the People’s claim that appellant’s failure to object to the probation supervision fee at sentencing constitutes a waiver of the claim on appeal. We thus address appellant’s claim on the merits.

Subdivision (b) of section 1203.1b provides, in part: “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.”

The record on appeal fails to reflect any evidence that appellant was informed of her statutory right to a court hearing and judicial determination regarding her ability to pay probation costs. Moreover, there is no indication appellant waived her rights to a court hearing and judicial determination. The court did not conduct a hearing or receive evidence regarding appellant’s financial ability to pay probation costs.

The People argue that remand is unnecessary because the probation report indicates appellant has a high school diploma, completed a nine-month medical assistant program, had been steadily employed in recent history and had no serious illnesses, injuries, diseases or substance abuse problems. The People fail to mention that under the heading “FINANCIAL,” the probation report states, “The defendant listed no assets, income, debt or savings.” Our review of the probation report reveals no facts that could in any way substitute for the hearing requirements of section 1203.1b.

Because the section 1203.1b requirements were not complied with, the case is remanded to allow the trial court to take a knowing and intelligent waiver of a hearing from defendant or to conduct a hearing as provided in section 1203.1b. (See People v. O'Connell (2003) 107 Cal.App.4th 1062, 1068.)

II. Court Security Fee

Appellant contends, and the People concede, that for the same reasons discussed, ante, as to the probation supervision fee, the court erred in imposing a court security fee (§ 1465.8) as a condition of her probation. However, the People argue that appellant waived the claim by not objecting below or that the remedy for the court’s error is to modify the order granting probation to reflect payment of the security fee as a separate order. (See People v. Hart, supra, 65 Cal.App.4th at p. 907.) They also argue that the order granting appellant probation should be modified to reflect a $20 court security fee for each of appellant’s two convictions. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 866 [$20 security fee is imposed for each criminal conviction defendant suffers].)

Section 1465.8, subdivision (a)(1) provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.” The court security fee is a nonpunitive fee, assessed for use of a court facility. (People v. Schoeb, supra, 132 Cal.App.4th at p. 866.) Section 1465.8 unambiguously requires a trial court to impose a $20 court security fee for each criminal conviction a defendant suffers. Thus, appellant’s waiver notwithstanding, the trial court was required to impose a $20 court security fee for each of appellant’s two convictions. And, as the People assert, the order granting probation should be modified to reflect a $20 fee for each of appellant’s two convictions.

Disposition

The portion of the order granting probation that requires appellant to pay the costs of probation pursuant to section 1203.1b is vacated. The case is remanded to the trial court for the redetermination of probation-related costs as discussed in the opinion. In addition, the order granting probation is modified to reflect a $20 court security fee for each of appellant’s two convictions. The order placing defendant on probation is otherwise affirmed.

We concur.

JONES, P.J., STEVENS, J.

Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Johns

California Court of Appeals, First District, Fifth Division
Mar 20, 2008
No. A116805 (Cal. Ct. App. Mar. 20, 2008)
Case details for

People v. Johns

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GENEA TAMIRA JOHNS, Defendant and…

Court:California Court of Appeals, First District, Fifth Division

Date published: Mar 20, 2008

Citations

No. A116805 (Cal. Ct. App. Mar. 20, 2008)