Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC950394.
Premo, J.
Defendant John Ross Kaho entered a negotiated plea of no contest to two counts of assault by means likely to produce great bodily injury. The trial court placed defendant on probation and ordered defendant to pay various fines and fees that included a $129.75 criminal justice administration fee to the City of San Jose and a probation supervision fee not to exceed $110 per month. On appeal, defendant contends that no substantial evidence supports that he had the ability to pay the fees. We affirm the order for probation.
BACKGROUND
The trial court “referred [defendant] to the Department of Revenue for a determination of his ability to pay fines and fees.” It then assessed the fees as follows.
“I would impose a Criminal Justice Administration Fee to the City of San Jose in the amount of $129.75. That’s imposed under Government Code Section[s] 29550, 29550.1, 29550.2.”
“In addition to those conditions of probation, I would order the following fee, which is not a condition of probation but it’s separately due to the Department of Revenue during the period of probation. The failure to pay will result in the potential loss of California driver’s license, and that’s a probation supervision not to exceed $110 per month imposed under [section] 1203.1b of the Penal Code.”
At some point, defendant’s counsel added: “And I think that the Department of Revenue--he can go out and fill out an ability-to-pay form through them.” To this, the trial court specified: “All right. I’ll order the Department of Revenue to determine defendant’s ability to pay and to set the probation supervision fee not to exceed $110 but based on his ability to pay.” And it reiterated: (1) “He’s also refer[red] to the Department of Revenue for determination of his ability to pay fines and fees”; (2) “I’ll impose the... criminal justice administration fee of $129.75”; and (3) “And again, it’s not a condition of probation but the following fees are due to the Department of Revenue. The failure to pay will result in civil collection. Probation supervision of $110 as determined by the Department of Revenue based on [defendant’s] ability to pay.”
DISCUSSION
Defendant contends that “a prerequisite for the imposition of the fees at issue is a finding, express or implied, of the defendant’s ability to pay. Here, the evidence regarding [defendant’s] financial status and capacity, both present and future, was insufficient.” Defendant’s analysis is erroneous.
This court recently discussed the criminal justice administration or “booking” fee in People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399-1400 (Pacheco). As we explained in Pacheco, Government Code sections 29550, 29550.1, and 29550.2 “govern fees for booking or otherwise processing arrested persons into a county jail.” (Pacheco, supra, at p. 1399, fn. 6.) These three code sections vary to some degree based on the identity of the arresting agency. (Ibid.) Arrests made by a county are governed by section 29550; arrests made by a city and other named entities are governed by section 29550.1; and arrests made by any governmental entity not specified in section 29550 or 29550.1 are governed by section 29550.2. (Pacheco, supra, at p. 1399, fn. 6.)
“[S]ection 29550, subdivision (c) provides that if the county was the arresting agency, the fee ‘shall not exceed the actual administrative costs’ of booking. Section 29550, subdivision (d)(1) further provides that a ‘judgment of conviction may impose an order for payment’ of the fee and ‘execution may be issued on the order in the same manner as a judgment in a civil action.’ Subdivision (d)(2) further provides that ‘[t]he court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, ’ to reimburse the county for the fee.” (Pacheco, supra, 187 Cal.App.4th at pp. 1399-1400.)
Similarly, Government Code section 29550.2, which governs arrests “by any governmental entity not specified in Section 29550 or 29550.1, ” provides for the imposition of a criminal justice administration fee that does not exceed the “actual administrative costs” of booking. (Gov. Code, § 29550.2, subd. (a).) That same section also provides that if the person arrested “has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person.” (Ibid.)
Thus, Government Code sections 29550 and 29550.2 make the fees subject to a defendant’s ability to pay.
In this case, however, the trial court identified the City of San Jose as the payee. Accordingly, the basis of the fee was Government Code section 29550.1.
Government Code section 29550.1 states, “Any city, special district, school district, community college district, college, university, or other local arresting agency whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the city, special district, school district, community college district, college, university, or other local arresting agency for the criminal justice administration fee.”
As can be seen, nothing in the statute requires a determination of the defendant’s ability to pay. Thus, the criminal justice administration fee imposed here was mandatory and not subject to ability to pay.
Defendant’s reliance upon Pacheco is erroneous. That case pertained to Government Code section 29550 or 29550.2 rather than section 29550.1. (Pacheco, supra, 187 Cal.App.4th at pp. 1399-1400.)
Defendant’s challenge to the criminal justice administration fee therefore fails.
What remains is the provision in the order for probation that (1) sets the probation supervision fee as not to exceed $110 per month, based on defendant’s ability to pay, and (2) refers defendant to the Department of Revenue for a determination of his ability to pay.
This provision derives from subdivision (a) of Penal Code section 1203.1b, which provides 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 or a conditional sentence, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, and of processing a jurisdictional transfer pursuant to Section 1203.9 or of processing a request for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, whichever applies. The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof. A payment schedule for the reimbursement of the costs of preplea or presentence investigations based on income shall be developed by the probation department of each county and approved by the presiding judge of the superior court. 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.)
By ordering defendant to go to the Department of Revenue for a determination of ability to pay costs for probation supervision, the trial court did no more than comply with the statutory obligation imposed upon it by subdivision (a) of Penal Code section 1203.1b. While it is true that the Department of Revenue will inquire into defendant’s ability to pay, no determination of ability to pay has yet been made. And we observe that, under Penal Code section 1203.1b, an order to report for an inquiry into defendant’s ability to pay is not itself contingent on the trial court first making a determination of ability to pay. Instead, it is a mandatory order that the court “shall” make.
In short, the order for probation imposes no current financial obligation on defendant. It simply sets a maximum financial obligation and leaves open what portion of that maximum defendant will pay. By ordering defendant to report to the Department of Revenue for an evaluation, the trial court complied with the procedure that must be followed before a defendant can be required to pay probation supervision costs. Once ability to pay has been determined by the Department of Revenue, defendant will have the right to an ability-to-pay hearing before the trial court.
Defendant’s reliance on Pacheco is again erroneous. There, the trial court imposed a probation supervision fee and “the statutory procedure provided at section 1203.1b for a determination of... ability to pay probation related costs was not followed.” (Pacheco, supra, 187 Cal.App.4th at p. 1401.)
Defendant’s challenge to the probation supervision fee therefore fails.
DISPOSITION
The order for probation is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.