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People v. Ladd

California Court of Appeals, Sixth District
Feb 28, 2011
No. H033813 (Cal. Ct. App. Feb. 28, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. KATHLEEN MARGARET LADD, Defendant and Appellant. H033813 California Court of Appeal, Sixth District February 28, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. Nos. CC762505, BB407727.

Duffy, J.

This is one of numerous appeals in a series involving two separate criminal convictions. While on probation in both cases, defendant Kathleen Margaret Ladd requested the trial court by motion to determine her ability to pay certain fines and fees that had previously been imposed. The trial court deferred that determination, which we affirmed in a prior appeal because the erroneous deferral was not prejudicial. But then, 13 months later, the trial court concluded after an evidentiary hearing that Ladd’s probation supervision fees should be reduced and found that she had the ability to pay $25 per month toward probation-related costs on each case. That order is the subject of this appeal.

On Ladd’s motion, we have by separate order already taken judicial notice of our prior cases of People v. Ladd (Apr. 15, 2008, H031838) [nonpub. opn.], People v. Ladd (Apr. 1, 2010, H032456) [nonpub opn.], and People v. Ladd (Apr. 1, 2010, H034371) [nonpub opn.]. On our own motion, we also take judicial notice of People v. Ladd (Aug. 4, 2005, H028191) [nonpub. opn.].

After that order, Ladd sought to suspend her obligation to pay monthly fees until such time as she could become gainfully employed and thereby earn sufficient discretionary income to pay the fees. The trial court denied that request, and, without notice and over objection, granted the People’s oral request at the hearing to extend Ladd’s term of probation by two years, an order we reversed in a prior appeal.

STATEMENT OF THE CASE

We dispense with the underlying facts of Ladd’s crimes as they are not relevant to this appeal. We take the statement of the case from our prior opinion in People v. Ladd (Apr. 1, 2010, H032456) [nonpub. opn.].

I. Case Number BB407727

In 2004, Ladd was convicted by no-contest plea of petty theft with a prior and battery in Santa Clara County Superior Court case number BB407727. At sentencing on September 23, 2004, the trial court, among other things, suspended sentence and placed Ladd on formal probation for three years, ordered her to serve a six-month jail term, and imposed a $200 restitution fund fine plus what the court called a “10 percent penalty assessment.” Ladd was permitted to serve her jail term on the electric monitoring program as authorized by Penal Code section 1203.016 beginning in November 2004 with verification of her medical records and was ordered to “pay all fees associated with that program.” She was referred to the “Department of Revenue for her ability to pay fines and fees.” Her counsel asked if fees for the electronic monitoring program would be based on ability to pay and the court confirmed that this was the case. Ladd was initially ordered to begin the electronic monitoring by November 24, 2004, but that date was extended to November 30, 2004. When being physically hooked up to the electronic monitoring system, Ladd was requested to sign a form agreeing to pay $20 per day for each day she participated in the program with a deposit of $70. According to Ladd, she was told that if she did not sign the form, she would not then be hooked up to the program, would consequently miss her compliance date, would not be allowed to participate in the program, and would be required to serve jail time instead. She asked for a delay to speak with her lawyer about the form but was told that if she delayed, it would preclude her participation in the program. She accordingly signed the form agreeing to pay.

Further statutory references are to the Penal Code unless otherwise stated.

It appears that electronic monitoring was permitted for medical reasons. In March 2005, probation terms were modified such that Ladd was permitted to serve her remaining jail term by substituting community service in place of the electronic monitoring program. This was also for medical reasons.

The form provides for a repayment rate of $5.00 per day while Ladd was an active participant of the program and it acknowledges that the “repayment rate is based on [the probationer’s] ability to pay” and that the person “cannot be denied consideration for or removed from participation in the [program] because of an inability to pay, ” which is consistent with section 1208.2, subdivision (g).

On appeal from the judgment of conviction and sentencing, Ladd challenged the so-called penalty assessment on the restitution fund fine as unauthorized. Concluding that the 10 percent fee imposed on top of the fine was intended to be a permissible administrative fee under section 1202.4, subdivision (l) and not an impermissible penalty assessment, we rejected Ladd’s claim and affirmed. (People v. Ladd (Aug. 4, 2005, H028191) [nonpub. opn.].) Ladd did not raise any other issues in that appeal.

II. Case Number CC762505

In 2007, while still on probation in the prior case, Ladd was convicted by no-contest plea in Santa Clara County Superior Court case number CC762505 of buying, receiving, concealing, or withholding stolen property. She also admitted having committed the offense while she was out of custody and out on bail on a separate felony charge of possession of a controlled substance. On June 8, 2007, under a negotiated disposition, the trial court suspended imposition of sentence and placed Ladd on formal probation for three years, and, without objection, reinstated and modified probation in case number BB407727 by extending it to be “coterminous” with probation in case number CC762505. The separate possession-of-a-controlled-substance charge was referred to a different court for sentencing. Conditions of probation in case number CC762505 included a six-month jail term with credit for time served, substance abuse counseling, and payment of restitution. The trial court also imposed various fines and fees, including a $129.75 criminal justice administration or booking fee under Government Code section 29550.1, a pre-sentence investigation fee “not to exceed $450 and probation supervision fees not to exceed $64 per month, ” both these latter fees under section 1203.1b.

Ladd apparently was released from jail on August 4, 2007, after serving 123 days. On July 21, 2008, the probation department “banked” her case, meaning that she no longer had to actively report to probation but was still subject to administrative monitoring. Thus, according to Ladd, her time on active probation during which she required services was 11 months and 17 days. During that time, she met with her probation officer on approximately six occasions for approximately 10 minutes each time and she submitted approximately seven urine tests.

At the change of plea hearing, the court informed Ladd that she would be required to prepare a statement-of-assets form, which she was provided with, and at sentencing, she was referred to the “Department of Revenue for determination of her ability to pay fines and fees.” In response to this referral, Ladd’s counsel requested a court hearing to determine her ability to pay “fines, fees, and restitution” and the court reiterated its reference to the Department of Revenue for this determination with the proviso that Ladd could later request a hearing after the Department made its findings. Ladd’s counsel made the point that her oral request for a hearing was for the record as “sometimes those fees are a bit on the exorbitant side.”

Ladd appealed based on the sentence or other matters occurring after the plea in a case filed under People v. Wende (1979) 25 Cal.3d 436. We concluded that there were no arguable issues on appeal and affirmed. (People v. Ladd (Apr. 15, 2008, H031838) [nonpub. opn.].)

III. Appeal Number H032456

On September 28, 2007, three months after sentencing, Ladd filed a motion in case number CC762505 for the court to determine her ability to pay fines, fees, and costs. The motion contended that because Ladd was a full-time student at San Jose State University in her senior year and because she was not employed and would not possibly be employed until after her graduation from college in May 2008, she had no ability to pay fines and fees in that case that she contended were subject to ability to pay-the $129.75 criminal justice administration (booking) fee, and the $450 pre-sentence investigation fee and $64 per month probation supervision fee, both under section 1203.1b. Ladd further contended that the Department of Revenue had not in fact determined her ability to pay fines and fees but had instead merely billed her for the maximum amount of each of the fees, even though the court had ordered her to pay a pre-sentence investigation fee “not to exceed” $450 and monthly probation supervision fees “not to exceed” $64.

Ladd’s motion included a declaration by her counsel describing counsel’s efforts to obtain a Department of Revenue determination of Ladd’s ability to pay. This declaration contained evidence to the effect that the Department of Revenue will not reduce fines and fees for inability to pay except in four specified circumstances, none of which applied to Ladd: “1) if the defendant receives SSI as his or her only income; [¶] 2) if the defendant receives AFDC and does not have other income; [¶] 3) if the defendant is disabled and receives only funds from disability; or, [¶] 4) if the defendant is terminally ill and can produce medical documentation to that effect.” Ladd also submitted a Statement of Assets showing that she had no earnings or assets and that her only source of income was from her mother. The Statement included as a debt $2,160 still owed in case number BB407727 but this amount was not challenged by the motion.

Ladd’s counsel in that hearing was her mother, who, it appears, owned the car Ladd drove, which was her only claimed property in her Statement of Assets, and otherwise financially supported her.

The motion was heard on December 19, 2007. Ladd had subpoenaed three people from or representing the Department of Revenue, who were present. The People pointed out that the fees owing in the case were just over $3,000 and that Ladd had been billed by the Department of Revenue to pay that amount in monthly installments of $103. The parties agreed that at the time of the hearing, Ladd was a student, was impecunious, and had no ability to pay the challenged fines and fees. But the People represented that the Department was insisting on full payment because Ladd would “have earnings in the future.”

The court ultimately expressed its view that because Ladd was receiving the benefit of probation services and would later be in a position to be employed, the fees should not be forgiven but that it was premature to determine her ability to pay them. The court stayed the probation-related fees (without accrual of interest) and deferred a determination of Ladd’s ability to pay until January 2009, just over one year from the hearing. The court analogized the obligations to student loans, which are held in abeyance until the student graduates and presumably becomes employed. The court also requested the probation department to do “an analysis of their monthly fees” based on whether or not Ladd was receiving a full panoply of probation services and to adjust the monthly $64 charge if probation were to be terminated or “banked.” And it added that if in January 2009, Ladd were still indigent, the obligations might again be deferred.

It appears that the deferral did not include the $129.75 criminal justice administration (booking) fee, which was imposed under Government Code section 29550.1. This statute does not include an ability-to-pay provision and it made the fee payable to the City of Santa Clara, whose officers had arrested Ladd. The fee was not payable to the County under section 29550.2, which, in contrast, does make a booking fee subject to ability to pay.

The court said that if probation had been terminated, then there shouldn’t be fees accruing after that and if her probation were “banked, ” meaning placed off of active reporting status, the fees could be reduced. But the full probation cost of $64 per month, which was asserted to be the average actual cost, should continue to be charged if Ladd were being “actively supervised on a weekly basis and [if there were] regular activity with full service being rendered.” Accordingly, the court requested the probation department to “evaluate the sliding scale up to $64 depending on the type of service they actually render.”

One of the people who had appeared from the Department of Revenue volunteered to the court that although it was not the subject of Ladd’s motion, she had requested of the Department that fees owed for electronic monitoring in case number BB407727 be “deleted” based on her inability to pay and that the Department did not object if the court were to also consider these fees “held” until after Ladd graduated from college. The court accordingly included those fees among the others being stayed pending Ladd’s graduation.

Ladd timely appealed the court’s order deferring a determination of her ability to pay. We concluded in People v. Ladd (Apr. 1, 2010, H032456) [nonpub. opn.] that although the court had erred under section 1203.1b by deferring the ability-to-pay determination of probation-related fees, the error was not prejudicial because the court was free to later revisit the issue, as it did 13 months later by making a determination. We further concluded that the booking fee was not subject to ability to pay under Government Code section 29550.1 because Ladd had been arrested by City of Santa Clara police officers, that she was not aggrieved by the court’s order staying her obligation to pay electronic monitoring fees from the prior case, and that even if she were, she had not triggered the court’s obligation to make an ability-to-pay determination under section 1208.2, subdivision (h).

IV. The Instant Appeal

On Ladd’s request, we stayed briefing in this appeal pending resolution of People v. Ladd (Apr. 1, 2010, H032456)[nonpub. opn.].

In the month before the deferred hearing date to determine Ladd’s ability to pay, on December 7, 2008, the Department of Revenue billed her $3,064 in case number CC762505 and $2,160 in case number BB407727, representing outstanding fees and fines due in each case. On January 13, 2009, the Department sent Ladd a notice of referral to probation officer that demanded payment within 15 days of the $2,160 owed in case number BB407727, on pain of arrest. In January 2009, Ladd submitted an updated financial form to the Department of Revenue and the Department conducted an evaluation of her ability to pay. Ladd later filed court papers for the deferred hearing that month. Her papers contended that she still lacked the ability to pay fines and fees. They outlined how Ladd had graduated cum laude from college in May 2008 with a major in forensic psychology but, despite applying to 57 separate businesses in the legal field, she had been unable to find employment due to her criminal record and the economic climate. She was doing volunteer work and had earnings in 2008 of $3,360 and student loan obligations of $13,624.99, payable at $153.32 per month. She had also suffered continuing health problems in September 2008 for which she was hospitalized and needed to maintain her health coverage at $424 per month. Even with health coverage, she faced outstanding medical bills related to her hospitalization in the approximate amount of $1,100. An updated Statement of Assets form reflected gross pay of $293 per month, monthly expenses of $3,162.32, and Ladd’s mother as her source of income.

The form showed that Ladd was unemployed, had monthly income of $293 for “odd jobs, ” and monthly expenses of $3,226.43, composed of $1,250 (rent), $264.49 (car expenses, $153 (student loans), $402.50 (medical insurance), $880.19 (“groceries/ utilities/household/etc., ” and $276.25 (miscellaneous medical costs).

This amount was itemized at $1,250 for rent; $630 for food and household supplies; $150 for utilities and telephone; $40 for laundry and cleaning; $250 for medical and dental payments; $424 for insurance premiums; and $ 265 for transportation and auto expenses.

The deferred hearing to evaluate Ladd’s ability to pay took place on January 26, 2009. Representatives from the Department of Revenue had again been subpoenaed and were on hand to testify. They informed the court that they had done a recent evaluation of Ladd’s ability to pay and concluded that she could pay $25 per month in each case based on Ladd performing odd jobs as stated in her financial form and on her future earning capacity, with payments to begin in 90 days. But the Department did not reduce or eliminate the $450 charge for the pre-sentence investigation report or the $64 per month probation supervision fee, charged for a period of 36 months, in accordance with its internal written ability-to-pay policies. These policies included not ever eliminating a fee or applying a sliding scale on the sole basis that a probationer was a student and because of that, did not have the ability to pay. This policy was implemented on the theory that such a person would have future income. Accordingly, the Department offered its assessment of Ladd’s ability to pay by recommending, in accordance with its policies, that no costs be reduced but that she be ordered to pay costs at the rate of $50 per month, $25 for each case.

The Department offered that in case number BB407727, the balance owing remained $2,160 and that over time, Ladd had paid $790 toward the original balance of $2,950. Ladd contended that the $790 paid was to be credited to fines and fees other than for electronic monitoring so that the remaining balance represented only that. But the Department asserted, and the court agreed, that a probationer cannot dictate application of payments and that they are applied according to a state formula so that the balance owed represented a combination of fines and fees, including for electronic monitoring. The Department further confirmed that in case number CC762505, the original amount of $3,064 was still owed with no payments having been credited.

The Department’s written policy was later admitted into evidence, along with statements of account for each of Ladd’s two cases and the Department’s sliding scale for probation costs. The written policy confirmed that there were only four circumstances in which the Department would waive fees-when the defendant is proven to be indigent and “is either on welfare, terminally ill, permanently disabled (SSI) or mentally incapacitated.” The policy specifically provided that “[d]efendants who are students, unemployed or employed earning minimum wage are not eligible for a fee waiver.” As for reduction of costs of probation supervision and pre-sentence investigation, the policy provided that if a defendant did not meet the above requirements for fee waiver based on indigency and was employed yet believed he or she was not making sufficient income to pay, that the person could request a financial evaluation to reduce fees. The Department would then apply its written probation-cost sliding scale to determine whether to reduce costs. That scale reflects the set $450 pre-sentence investigation fee and the set $64 per month supervision fee, which, multiplied for a three-year probation period, totals $2,304, as billed to Ladd. As pertinent here, the sliding scale shows that a determination of “monthly discretionary income” of $151 and up will result in no reduction of costs. Costs are reduced on a scale for monthly discretionary income of $150 on down, with complete elimination of the fees if a defendant has $25 per month or below that in discretionary income.

Before taking testimony, the court pointed out with regard to the electronic monitoring fees in case number BB407727, that Ladd had had the benefit of this program as an alternative to jail time as a matter of leniency, and that if a defendant accepts the program, then he or she must pay for it. Ladd asserted that she did not have the ability to pay for it and the court responded that Ladd’s position was more akin to a “refusal to pay when you have the ability to pay in installment payments.” The court expressed its acceptance of the Department’s administrative finding that Ladd could pay $25 per month toward this obligation and informed Ladd that the burden was on her to demonstrate her inability to pay.

The court said, “I see that she... borrowed $13,000 to go to college. I stayed collection so she could complete college. She got the benefit of the [electronic monitoring] program, participated in it, and now she’s saying through counsel that she doesn’t want to pay for it even though she has the ability, apparently, to pay at the rate of $25 a month.” The court followed that up by saying, “Let me indicate that we’ve gone through the proper procedure in this case. She’s been screened administratively. She was given an extra year with no collection efforts and she’s now been re-interviewed, and she has the ability to pay $25 a month starting in April [2009].”

One of the representatives from the Department of Revenue then testified that in applying the Department’s policies, as “long as there is income, [the Department] set[s] up a payment plan, unless [the defendant] falls under the criteria in [the] inability-to-pay procedures.” The court queried the witness in response, saying, “You mean you came to the shocking conclusion that if somebody is paying $880 for groceries and utilities and household expenses, and $153 for student loans, and $264 for a car payment, and [$1,250] a month for a house or rent payment, she somehow is generating funds to pay those amounts, then she can probably pay another $25 a month toward court fines and fees?” The witness responded, “Yes.”

The witness also said that she did not apply the Department’s sliding scale to reduce Ladd’s fines but instead set up a $25 per month payment plan, which she considered workable. But she took into account that Ladd was paying her other monthly expenses and that she would “have the ability [to pay] at some time, ” so that the Department was willing to “work with” her. The witness further confirmed her understanding that if probation costs are still owed when a defendant’s probation ends, the obligation is treated as a civil matter and compromised or collected as such, i.e, the defendant’s non-payment does not constitute a probation or criminal violation.

Ladd also testified at the hearing. She confirmed her monthly income and expenses as stated in the two financial forms she had filled out that month, the first submitted to the Department of Revenue on January 9, 2009, and the second Statement of Assets filed just before the hearing. She also recounted her efforts to obtain employment in the legal field, unsuccessful in part because of her criminal record. When asked what sources of income she had other than the $3,360 she had earned in 2008, Ladd asked her lawyer, “Are you asking me as my attorney or my mother? I mean, if... you’re [asking as] my attorney, then it’s my mother. If... you[’re asking as] my mother, then it’s you. I don’t know how I should answer that correctly for the record.” This response caused the court to ask Ladd’s counsel, whom the court then understood to be Ladd’s mother, “Does that tell me how all these bills are to be paid?” Counsel responded, “Yes, your Honor.” The court asked, “So mom’s paid all the bills?” Counsel responded, “Yes, and mom doesn’t feel that the [c]ounty should use my ability to pay to collect its sums.”

The court then attempted to ascertain actual probation costs when a case is “banked, ” but could only confirm from a Department of Revenue representative that actual costs would be less than the $64 per month actual average for active probation supervision. The court then attempted to approximate actual probation costs before Ladd’s case was banked based on the number of visits Ladd had made to her probation officer and the amount of time spent on each visit plus the drug tests she had taken. The court proceeded to confirm with Ladd the circumstances of her having signed the form on which she had agreed to pay the costs of electronic monitoring and that her mother had paid $790 in costs in case number BB407727 and the bulk of her ongoing living expenses. The court asked Ladd why it was that she could borrow from her mother to pay for all of her other expenses but could not borrow enough to pay $25 a month toward court costs on each case. Ladd replied that none of the money she receives from her mother is borrowed but that it is a gift. Her mother and counsel then offered that maybe Ladd would one day pay the money back and “take care of her in her old age.” Her mother further offered that she was then 72 years old and didn’t “really want to be working until [she was] 99 or so.”

The court then announced that it had read section 1203.1b, which generally deals with probation and related costs, to provide at subdivision (c) for the court’s authority to “hold additional hearings during the probationary... period” to review a defendant’s “financial ability to pay, ” notwithstanding that the statute also provides at subdivisions (e)(2) & (3) that “ability to pay” includes a defendant’s “[r]easonably discernable future financial position” and “[l]ikelihood that the defendant shall be able to obtain employment” only for a period of one year from the hearing. (§ 1203.1b, subds. (e)(2) & (3).) The court considered itself as having acted within the authority provided at section 1203.1b, subdivision (c) by having previously deferred for just over a year a determination of Ladd’s ability to pay probation costs.

The court proceeded, “Previously I stayed all collection efforts... on both cases pending [Ladd’s] completion of college in the hope that she would be able to retire her court obligations. And at that time, I specifically asked that there be some sort of calculation to determine if her probation fees should be reduced.... [¶] I feel, based on the actual formal supervision that she was given, and the fact that her case was banked, that those fees should be reduced.” The court then accepted the full probation supervision cost of $64 per month for the eight months that Ladd was on active probation and then added $10 per month for the remaining 28 months of her banked probation term, for a total of $792. The court proceeded to add $108 for the drug tests for a total of $900 and reduced Ladd’s probation supervision costs to that amount from $2,304.

Although the court was clear that it was reducing probation supervision fees in both cases to a total of $900, it does not appear that any such fees were charged in case number BB407727.

The court found, considering all the evidence, that Ladd had “a regular line of credit with her mother, ” whether that support was loans or gifts. Given Ladd’s “ability to obtain gifts, her ability to work and earn money of $3,360 last year, and her ability to borrow money, I think that she does have the ability to pay the reduced probation fees and all the other fees and expenses. And I concur with the Department of Revenue that she has the ability to pay it at the rate of $25 per month [on each case], starting April 1st.” In response to Ladd’s counsel’s inquiry, the court made clear that it was not reducing the $2,160 electronic monitoring fees in case number BB407727 or the $450 pre-sentence investigation fee in case number CC762505, noting that the probation report was not a limited one but a full, comprehensive, 22-page report. The court also confirmed that when Ladd’s probation term ended, the remaining costs would become “civil obligations collectible as civil judgments.”

Ladd timely appealed, the subject of this case.

V. Appeal Number H034371

Some two months after the court’s January 26, 2009 order determining her ability to pay and setting a payment schedule but before Ladd was to make her first payment of $50, she filed a motion to suspend her obligation to pay fines and fees. The basis of the motion was that Ladd had been diagnosed with an eye infection and then mononucleosis in February 2009 and was thus unable to work at all or pay the $50 monthly installment toward fines and fees and her prospects for employment otherwise remained dim. Thus, she contended, she had no ability to pay the monthly installments. Ladd requested the court to suspend its previous payment order until she could obtain “employment demonstrating that she has the ability to pay as set forth by [Department of Revenue] policies and in its calculations concerning amounts of payments to be made based upon [amount] of discretionary income available for payments.” Ladd declared by declaration that since the court’s January 2009 order, she had been unable to obtain employment, had received no income, and had no prospects for employment at that time. She stated her intentions to resume looking for work once she regained her health and to inform the Department of Revenue when she began to receive “income in excess of the amount [which the Department] considers non-discretionary and available to pay fines and fees.”

This motion was accordingly not another one to determine her ability to pay, only to temporarily suspend payments due to her then current circumstances.

The motion, which the court considered one to modify probation, was initially set to be heard in April 2009. The probation department submitted a memo recommending that the motion be denied. The court apparently continued the motion and requested Ladd to submit proof regarding her applications for work. In response, Ladd submitted information showing her 2009 to date net earnings to be $1,329.79, a list of 81 employers whom she had contacted since July 2008 for work as a legal assistant or legal secretary, her resume, letters of reference, three letters of rejection, and an updated financial history form, which showed monthly take-home pay of $266 and monthly expenses of $2,733.

At the hearing on June 2, 2009, the court noted that Ladd had many skills but suggested that she attempt to find work outside the legal field, where she might have difficulty because of her record. The court further encouraged Ladd to begin paying her fines and fees so she could “get this behind” her instead of “prolonging [her] own misery.” The court observed that there were other people appearing in court that day who had “a lot less talent” yet who manage to pay $50 per month, more than Ladd had paid in two years, a payment record the court called “underwhelming.”

At the People’s oral request and over Ladd’s general objection, the court impliedly denied Ladd’s request to suspend monthly payments, and instead extended her term of probation by two years until June 8, 2012, (unless fines and fees were paid off earlier in which case the court said she could seek to terminate probation), and ordered her to begin monthly payments of $25 in each case on June 15, 2009. The court expressed that probation, which was otherwise set to terminate in June 2010, had to be extended because, at the ordered rate of payment, Ladd would not pay off fines and fees at the end of her three-year probation term.

We concluded that the court erred in extending Ladd’s probation because the court did not comply with the statutory condition of notice to the proper probation officer under section 1203.2, subdivision (b) before modifying the terms of Ladd’s probation. We accordingly reversed the order.

As a result of our opinion People v. Ladd (H034371, Apr. 1, 2010) [nonpub.], the original term of probation in case number CC762505 was reinstated and was set to expire on June 8, 2010. We do not know whether the probation term did indeed expire or whether it was extended. From the records before us in that appeal, we could not tell the expiration date of probation in case number BB407727 and directed the court on remand to determine this. We do not know the outcome of this determination.

DISCUSSION

As we read the records in this case and the other four involving Ladd of which we have taken judicial notice, the only time the court made an actual ability-to-pay determination was on January 26, 2009. As pertinent here, as a result of this determination, the court in case number CC762505 reduced probation supervision fees to $900 from $2,304 but did not reduce the $450 presentence investigation fee. The court also concluded as a result of its ability-to-pay-determination that Ladd had the ability to pay $25 per month in each case toward all outstanding fines and fees, for a total monthly payment in both cases of $50. That order is the subject of this appeal.

Her motion heard in June 2009 was only for an order to suspend previously ordered payments for such time until she became employed and earned sufficient income with which to pay. The court denied that request in addition to extending probation and Ladd did not articulate a challenge to this denial in case number H034371.

Ladd generally challenges the court’s determination concerning her ability to pay $900 in probation supervision fees and $450 for a presentence investigation fee, both of which were imposed under section 1203.1b, subdivision (a). Some of her arguments are difficult to follow. As we understand them, she first generally contends that the court failed to follow the law and apply proper standards when determining how much in probation-related costs she had the ability to pay. She also specifically contends that the court failed to comply with the requirements of section 1203.1b, subdivision (e)(2) in that it considered what she might potentially earn beyond one year from the hearing in determining her ability to pay. She further contends that the court failed to follow the payment schedule the probation department is required to develop for reimbursement of costs under section 1203.1b, subdivision (a). She next contends that the court abused its discretion in determining she had the ability to pay anything because the evidence established she did not. She further contends that the County’s ability-to-pay policy is inconsistent with the law. She finally contends that there is insufficient evidence to support the order.

A. The Court Did Not Ignore the Law in Applying Section 1203.1b to the Evidence Before It

Ladd argues that “Santa Clara County, including its probation department and the trial court in this case, has simply ignored the law” and determined her ability to pay probation-related costs based on lifetime earning capacity and regardless of the actual costs of probation services provided.

Section 1203.1b, subdivision (a) provides that in any case in which a defendant is convicted and is the subject of a pre-plea or pre-sentence investigation, or in which a defendant is granted probation or a conditional sentence, a probation officer, or his or her representative, which here we assume is the Santa Clara County’s Department of Revenue, must make a determination of the defendant’s ability to pay all or a portion of the reasonable cost of the investigation and probation report, among other services. The determination must take into account “any amount that the defendant is ordered to pay in fines, assessments, and restitution.” (§ 1203.1b, subd. (a).) “The reasonable cost of these services … 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.” (§ 1203.1b, subd. (a).)

As noted, the payment schedule developed for probation costs in Santa Clara County that was in existence at the time of the hearing (effective July 5, 2005) is in the record, having been offered by Ladd. It provides for a maximum $64 per month probation supervision fee and for a maximum $450 presentence investigation fee. The full amounts for these items are shown to be due for those defendants with $151 or more in “monthly discretionary income, ” a term not defined, and lesser amounts are shown to be due for each item on a scale for those with lesser amounts of monthly discretionary income. Defendants with $25 or less in discretionary income are not charged for either item.

We assume this schedule was approved by the presiding judge of the superior court and defendant has not shown otherwise. (Evid. Code, § 664 [presumption of official duty regularly performed].) Further, we take these stated costs to be actual averages as officially calculated and defendant did not show otherwise. In the record, the court described the $64 maximum charge for probation supervision as the “overhead” cost for “active, ” as opposed to “banked, ” probation supervision.

Under section 1203.1b, subdivision (a), the probation officer must determine the amount of payment of probation-related costs and the manner in which payments will be made based on a defendant’s ability to pay. And he or she must inform the defendant of his or her right to a hearing on the issue in which the court “shall make a determination of the defendant’s ability to pay and the payment amount.” (§ 1203.1b, subd. (a).) If a defendant exercises the right to a hearing, the probation officer must refer the matter to the court “to determine the amount of payment and the manner in which 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....” (§ 1203.1b, subd. (b).)

As noted, here the probation report recommended referral to the Department of Revenue for a determination of Ladd’s ability to pay and that she be ordered to pay “not to exceed” $64 per month in probation supervision fees and $450 for the presentence investigation fee.

“At the hearing, if the court determines that the defendant has the ability to pay all or part of the costs, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability.” (§ 1203.1b, subd. (b)(2).) “[I]n making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.” (§ 1203.1b, subd. (b)(3).) “When the court determines that the defendant’s ability to pay is different from the determination of the probation officer, the court shall state on the record the reason for its order.” (§ 1203.1b, subd. (b)(4).) “The term ‘ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, ... and probation supervision..., and shall include, but shall not be limited to, the defendant’s: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. (4) Any other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs.” (§ 1203.1b, subd. (e).)

Finally, as relevant here, section 1203.1b, subdivision (f) provides that at “any time during the pendency of the judgment rendered according to the terms of this section, a defendant against whom a judgment has been rendered may petition the probation officer for a review of the defendant’s financial ability to pay or the rendering court to modify or vacate its previous judgment on the grounds of a change of circumstances with regard to the defendant’s ability to pay the judgment.”

Ladd contends that the term “ability to pay” is in dispute in this case. She interprets section 1203.1b as requiring the determination to be made at the time of the hearing and to be based on a defendant’s ability to pay as defined by the statute, and we agree with this generally stated proposition. But she contends that here, her ability to pay was erroneously determined based on “some sort of speculative lifetime earnings capacity, such that a defendant can always be found to have the ability to pay based upon the possibility that she will earn significant income in ten, twenty, or, even, thirty years.” She cites People v. Hall (2002) 103 Cal.App.4th 889, for the proposition that if a defendant is determined to be currently unable to pay any part of his or her probation costs, then he or she should be ordered to pay none of them, rather than being ordered to pay some monthly amount that in a sense amortizes the full amount of probation costs instead of completely eliminating them. And she cites People v. Castellanos (2009) 175 Cal.App.4th 1524 for its holding that in determining ability to pay a particular fine or fee, the trial court must consider other fines and fees imposed, as well as penalty assessments.

But Ladd’s entire factual premise that she had no current ability to pay probation costs based on the financial information she submitted rests on a fallacy. It is that the court was not permitted to consider as income funds she regularly received from her mother, who was in fact supporting her and was listed on her statement of assets as a “source[] of income.” As noted, Ladd’s financial forms had indicated that she had monthly expenses of $3,162, or $37,944 per year, and annual earnings in 2008 of $3,360. This obviously meant that Ladd was receiving the difference, or some $34,000, in income a year from her mother, so that her actual annual income was roughly the same as her claimed paid expenses-nearly $38,000. This was money that the court was entitled to consider as part of Ladd’s “present financial position” as used in section 1203.1b, subdivision (e)(1), her “reasonably discernible future financial position” under section 1203.1b, subdivision (e)(2), or “[a]ny other factor... that may bear upon the defendant’s financial capacity to reimburse the county for the costs” under section 1203.1b, subdivision (e)(4). The court did so by concluding that by whatever means, Ladd was generating enough funds to pay her monthly expenses. And out of these funds, she could afford to pay her reduced probation costs.

Ladd contends that including the money she received from her mother within the calculation of her ability to pay resulted in an erroneous order compelling her mother to pay her probation costs. Not so. For our purposes, her mother was free at any time to stop supporting her or reduce the amount of money she provided. In either instance, Ladd could have petitioned her probation officer or the court to adjust what she was required to pay based on a change in her financial circumstances. (§ 1203.1b, subd. (c) & (f).)

Moreover, Ladd’s financial papers showed that in 2008, she had performed 75.25 hours of volunteer work. The minimum wage in California in 2008 and 2009 was $8 per hour, as it currently remains. Substituting a minimum wage job for her volunteer work in the year after the hearing would yield $602 in annual gross income, $2 in excess of what the court ordered Ladd to pay in fines and fees per year ($50 per month x 12 months = $600). And Ladd, a college graduate, had apparently not been able to find a job largely because of her criminal record. But she had tried to get a job in the legal field, where her record might be more of an obstacle than in other fields. If she were to obtain a full time minimum wage job, she could conceivably make a gross annual income of $16,000, over four times the earnings income that she was actually claiming, out of which her reduced monthly fines and fees could be paid. Under section 1203.1b, subdivision (e)(3), the court was properly in a position to consider the likelihood that Ladd could obtain employment within the one-year period from the date of the hearing. The potential for employment considered did not have to be in Ladd’s chosen field.

Finally, Ladd bore the burden of proof on the motion. She now contends there was insufficient evidence of the actual costs of her probation. But she did not show that the costs as initially charged ($64 per month for probation supervision and $450 for pre-sentence investigation), which had been previously asserted to be the “average cost” of these probation services, were inaccurate or excessive as the actual average, which is the statutory upper limit. And the trial court significantly reduced the monthly probation supervision fee (to $10) to reflect the significant period that Ladd was not on active probation. It is unlikely that the administrative costs could be any less than this. Finally, the probation department’s schedule showing its probation costs, which had been offered as evidence by Ladd herself, was unrebutted and the trial court was free to use it to derive the average actual probation costs as the upper limit of costs to be imposed.

Ladd’s citation to People v. Viray (2005) 134 Cal.App.4th 1186 (Viray) does not compel a different result. There, another panel of this court concluded that an award of fees to the public defender’s office under section 987.8 could not be upheld because there was insufficient evidence before the court of the “actual costs to the county of the services provided to the defendant.” (Viray, supra, 134 Cal.App.4th at p. 1217.) The court started with the word “cost” as used in section 987.8 as meaning “ ‘the cost of the legal services provided to a criminal defendant as represented by a pro rata share of the public defender’s budget’ ” plus “ ‘any proven expenses to the county as established by the evidence.’ ” (Viray, supra, 134 Cal.App.4th at p. 1217.) The only evidence before the court was a bill stating that 46 hours of services had been expended on defendant’s behalf at an hourly rate of $200 per hour. But there was no evidence of the total office budget or of the defendant’s pro rata share thereof to justify the hourly rate. In the absence of such evidence “or at least a recital by an officer of the court” to that effect, the award could not be sustained. (Ibid.)

Here, section 1203.1b, subdivision (a) caps probation related costs at “the amount determined to be the actual average cost thereof.” And the court had the benefit of the probation department’s schedule showing its sliding scale of costs. This schedule, presumably approved by the presiding judge, reflected the maximum amounts of $64 per month for probation supervision and $450 for the pre-sentence investigation fee-the costs at issue. And the maximum probation costs shown on the schedule had previously been asserted by an officer of the court (to the same judge) to be the “overall costs of probation” reduced to the “average cost” or the “total cost of probation services over the range of probation, ” which the court later referred to as “overhead.” In contrast to the situation in Viray, the court here had before it all it needed to establish the upper limit of probation related costs that could be imposed, i.e., the “amount determined to be the actual average cost.” (§ 1203.1b, subd. (a).)

Accordingly, Ladd’s premise that the court erroneously ordered her to pay probation costs when she had demonstrated an inability to pay based on a claimed monthly net negative financial picture is factually incorrect. Based on the evidence before the court, it properly determined that Ladd had the present ability to pay the costs as ordered, and she has not shown that the court improperly applied the operative statute-section 1203.1b-or used incorrect standards in doing so. And because the court, after an evidentiary hearing ultimately determined her ability to pay, reducing the total costs she owed as determined by the probation department, the manner in which the probation department made its ability-to-pay calculations is irrelevant. This is particularly so because the court’s determination was also based on additional evidence that Ladd’s actual income was significantly higher than what she had claimed on the forms due to her mother’s financial support.

We accordingly reject Ladd’s argument that the court generally failed to follow the law and apply proper standards in its application of section 1203.1b.

B. There is No Showing That the Court Considered Potential Earnings Beyond One Year From the Hearing

Apart from her general contention that the court incorrectly applied section 1203.1b, Ladd specifically contends that because the court’s payment order was not limited to one year, its determination of her ability to pay necessarily reflected consideration of her reasonably discernable future financial position and likelihood of obtaining employment beyond one year from the hearing date in violation of subdivision (e)(2).

To the extent we understand the argument, Ladd contends that because the court’s payment order was not by its terms limited in duration to one year, the court necessarily and erroneously considered Ladd’s “lifetime earning potential.” But it does not follow that because the order’s duration was not so limited, it reflected consideration of Ladd’s potential income or earnings beyond one year. The premise of this argument accordingly does not logically compel its stated conclusion that the court considered her lifetime earnings potential. Nor does the argument demonstrate that the court’s payment order could not, as a matter of law, extend through the end of her probation term-more than a year later-without violating section 1203.1b. Taken to its logical conclusion, Ladd’s argument absurdly suggests that an order directing monthly payment of probation-related costs could never exceed one year in duration and that all such costs not payable within that period because of a defendant’s inability to pay must be eliminated.

But section 1203.1b does not so provide. And it expressly favors payment of probation-related costs by monthly installment payments without limiting such payments to a year’s duration (§ 1203.1b, subd. (d) [“If practicable, the court shall order or the probation officer shall set payments... to be made on a monthly basis”].) Moreover, the statute allows for additional hearings during the probationary period, which for many crimes exceeds one year, to review a defendant’s financial ability to pay. (§ 1203.1b, subd. (c).) The same is true for the period after probation is terminated, when the amounts still owing are collectible as a civil judgment. (§ 1203.1b, subd. (f).) That the statute allows for periodic re-evaluation of a defendant’s ability to pay throughout the probation term and thereafter means that the court’s authority to determine a defendant’s ability to pay and to order payment consistent therewith is not limited to a one-year snapshot in time. Just because the ability-to-pay determination at any given time may not include consideration of a defendant’s reasonably discernable future financial position or likelihood of obtaining employment beyond a year from the hearing date does not mean that all costs for which that defendant is determined to have the ability to pay must be payable within one year or be eliminated. Contrary to Ladd’s argument, the prohibition that limits consideration of a defendant’s reasonably discernable future financial position or likelihood of obtaining employment to one year from the hearing date in the determination of ability to pay does not similarly limit in time the court’s ultimate authority to consider or determine ability to pay or its authority to order installment payments beyond a year from the hearing date.

Ladd also contends that she was entitled to have her ability to pay the cost of her pre-sentence investigation determined “right from the start” when that ability was considerably lower. That issue is not before us in this appeal. Neither is her contention raised for the first time here that she was entitled to a monthly determination of her ability to pay probation supervision fees, something for which she cites no authority and that is clearly not contemplated by the statute.

We accordingly reject Ladd’s contention to the extent we understand it.

C. The Court Did Not Ignore the County’s Payment Schedule

Ladd next contends that because the financial support she received from her mother could not be included within her overall income in the determination of her ability to pay, she could not have been determined to have $151 dollars per month or more in discretionary income and could only have been determined to have less than $25. Based on these figures, the Santa Clara County payment schedule for probation related costs that is mandated by section 1203.1b, subdivision (a) dictated that Ladd be excused from paying any cost for probation supervision or for preparation of a pre-sentence report. But because she was ordered to pay such costs as if she had $151 per month in discretionary income, Ladd argues that the court erroneously failed to follow the payment schedule, or so the argument goes.

But we have already concluded that the court was entitled to consider the financial support Ladd received from her mother as income for purposes of making the ability-to-pay determination. It follows from this conclusion that on this record, the court was free to determine that Ladd had $151 or more per month in discretionary income and therefore had the ability to pay probation-related costs as ordered, including the full $450 for the probation report, consistently with the payment schedule. We accordingly reject Ladd’s contrary contention.

D. Ladd Has Not Shown That the Court Failed to Consider Other Mandatory Fines and Fees in its Determination of her Ability to Pay Probation-Related Costs

In an argument we find incomprehensible, Ladd contends that the court determined that she had the ability to pay a total of $50 per month toward probation-related costs, and that this necessarily meant that in violation of section 1203.1b, subdivision (b)(3), the court failed to consider that she owed additional amounts in other fines and fees. The factual premise of the argument-that the court ordered $50 monthly payments of solely probation related costs is not borne out by the record.

First, the court specifically said that based on the evidence, Ladd had “the ability to pay the reduced probation fees and all the other fees and expenses.” (Italics added.) Accordingly, the court clearly factored other fines and fees into its determination that Ladd had the ability to pay a reduced $900 in probation supervision fees and the full $450 for the presentence investigation. Second, in determining the monthly amount that Ladd had the ability to pay, the court also said that “all fees and obligations will be payable at the rate of $25 per month... on each separate case” for a total of $50. (Italics added.) Thus, the $50 monthly payment is not limited to probation-related costs. Therefore, contrary to Ladd’s contention, the court was not ordering her to pay her other fines and fees on top of the $50 monthly total that she was determined to have the ability to pay. We accordingly reject her argument that the court ignored her other fines and fees in its determination of her ability to pay.

E. We Need Not Decide the Legality of The County’s Ability-to-Pay Policy

Ladd contends the County’s “formerly adopted ‘ability-to-pay policy’ for court-ordered fees is inconsistent with California law.” (Bold caps. omitted.) At the same time, she concedes that the trial court veered from that policy when determining her ability to pay. Because it did so, and because there is no need to remand here, the court’s ruling does not implicate the County’s policy and we need not determine its legality in this case. We accordingly decline to do so.

F. There Was Sufficient Evidence to Support the Order

Ladd’s final claim is that there is insufficient evidence to support the order determining her ability to pay based on her claim of a negative monthly cash flow. But we have already concluded that the order is supported by substantial evidence because the trial court was free to consider the undisputed financial support Ladd received from her mother as income in its calculation of her ability to pay. The court was also free to consider Ladd’s ability to obtain employment in some field within a year and her reasonably discernable future financial position within one year’s time.

Contrary to Ladd’s argument, the court’s ability-to-pay determination was not premised on its perception that she could borrow funds from her mother that had to be repaid. On this record, Ladd did not establish that she was in fact obligated to repay her mother for the ongoing financial support she was receiving. In fact she testified that she was “not borrowing that money from her [mother]. None of that is a loan.” And the trial court ultimately cited Ladd’s ability to “obtain gifts” for her financial support and her ability to work and earn money, as well as her ability to borrow it, in explaining the rationale for its determination. The order is accordingly supported by substantial evidence.

DISPOSITION

The order is affirmed.

WE CONCUR: Mihara, Acting P.J., McAdams, J.


Summaries of

People v. Ladd

California Court of Appeals, Sixth District
Feb 28, 2011
No. H033813 (Cal. Ct. App. Feb. 28, 2011)
Case details for

People v. Ladd

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KATHLEEN MARGARET LADD, Defendant…

Court:California Court of Appeals, Sixth District

Date published: Feb 28, 2011

Citations

No. H033813 (Cal. Ct. App. Feb. 28, 2011)