Opinion
F061785 Super. Ct. No. 1251513
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. CRAIG KYLE NELSON, Defendant and Appellant.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J., Kane, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Craig Kyle Nelson struck and killed a bicyclist while driving under the influence of oxycodone, marijuana, codeine and morphine. After two and a half years of vigorously contested proceedings, Nelson pled no contest to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) in return for a stipulated 10-year prison term. On appeal, he challenges the order to pay a $900 presentence report fee under section 1203.1b. He contends the court did not properly determine his ability to pay. We disagree and will affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
On September 30, 2008, at about 6:00 p.m., 26-year-old Nelson was driving to California State University Stanislaus where he was a student. A witness saw Nelson's SUV swerve on and off the road several times and fail to stop at a stop sign before it became obscured in a cloud of dust. As the witness approached the scene, he saw a lifeless person lying in the road. The victim was 46-year-old Michael Richey, who was married and had three children. Nelson's SUV hit Richey's bicycle from behind. After striking the bicycle, the SUV rolled over and came to rest in an adjacent yard. Nelson was able to walk away from the damaged SUV, but kept asking what had happened.
At the hospital, officers found Nelson confused and lethargic. He failed three field sobriety tests. The preliminary screening for alcohol was negative, but his blood contained a high concentration of oxycodone, as well as codeine, morphine and metabolites of marijuana. Nelson had a prescription for controlled-release oxycodone for chronic pain from a shoulder injury. Nelson's physician, who had prescribed the oxycodone, was surprised to learn that Nelson was obtaining prescription opiates from other doctors besides himself.
On the date of the collision, Nelson's driver's license was suspended and there was a warrant for his arrest for a March 2008 Vehicle Code section 23153, subdivision (a) offense stemming from a collision with a 13-year-old bicyclist.
Nelson was charged with murder (§ 187), gross vehicular manslaughter (§ 191.5, subd. (a)), driving under the influence of a drug and causing injury (Veh. Code, § 23153, subd. (a)) with a great bodily injury enhancement (§ 12022.7, subd. (a)), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). Pursuant to a plea bargain, Nelson pled no contest to gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and the remaining charges were dismissed. In return, the court imposed a stipulated prison term of 10 years and various fines and fees, including a $900 presentence report fee under section 1203.1b. Subsequently, the parties stipulated that Nelson would pay $417,000 in victim restitution to compensate the victim's family for the economic losses flowing from his death.
The probation report and Nelson's "Objection and Reply to the Probation Report" indicated that, at the time of the offense, Nelson lived at home with his parents. He had attended several colleges and was then a student at Stanislaus State University. He was less than a year away from receiving a Bachelor of Arts degree in kinesiology and planned to be a teacher and coach. He had held a number of part-time jobs throughout his school years. He had no assets or debts, had never married and had no children. He was no longer taking any medications for his shoulder or any other medical condition and was not under the care of a doctor. He did not believe he needed mental health counseling.
The probation report recommended the court impose a $900 probation report fee. Defense counsel objected in writing to the recommendation and raised the issue at the sentencing hearing. Counsel argued that the probation report was inadequate and incomplete, it failed to comply with the rules of court in several regards and, because Nelson had no assets and would be incarcerated, there was no realistic determination of ability to pay nor had he had a hearing regarding his ability to pay the fee. In response, the court explained how Stanislaus County had determined that $900 was the appropriate fee to charge and opined that the probation department had spent a lot of time preparing the report in this case. The court noted that Nelson would be able to work in prison and imposed the fee. Nelson did not request a further hearing regarding his ability to pay the fee.
DISCUSSION
Waiver
Nelson contends the court erred in imposing a $900 presentence report fee pursuant to section 1203.1b because the court did not properly determine his ability to pay. The People respond that sufficient evidence supported the court's determination that Nelson had the ability to pay the $900 fee and failure to hold a separate hearing on the issue was harmless.
At the change of plea hearing, Nelson waived his right "to appeal anything other than sentencing errors regarding the credit times in this case." However, during the discussion leading up to the waiver, the prosecutor stated, "he's prepared to waive his appellate rights except as to sentencing errors, specifically local credits issue." The People do not address the waiver. Given the ambiguity regarding which appellate rights Nelson reserved, we address the issue.
Presentence Report Fee
Section 1203.1b, subdivision (a) provides that the trial court may order a defendant to pay the cost of the presentence report. It directs the probation officer to determine the defendant's ability to pay all or a portion of the reasonable cost of the report. It also directs the officer to inform the defendant that he is entitled to a hearing that includes the right to counsel, in which the court must determine his ability to pay and the payment amount. Subdivision (b) of section 1203.1b provides that if the defendant does not waive his right to a hearing, the probation officer must refer the matter to the court to schedule a hearing to determine the amount of payment and the manner in which the payment shall be made.
As used in section 1203.1b, "ability to pay" means the capability of the defendant to reimburse all or a part of the costs of preparing the presentence report. Factors to be considered include, but are not be limited to, the defendant's: (1) present financial position; (2) reasonably discernible future financial position, limited to no more than one year from the date of the hearing; (3) likelihood that the defendant shall be able to obtain employment within one year; and (4) any other factors that may bear on the defendant's financial capability to reimburse the county for the costs. (§ 1203.1b, subd. (e).)
Section 1203.1b is a recoupment statute that reflects the legislative policy in favor of shifting costs stemming from criminal acts back to the convicted defendant and replenishing the county treasury. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1073.)
Nelson contends this case presents an issue of statutory interpretation, requiring de novo review. We disagree. We view the issues to be (1) whether the court abused its discretion in proceeding as it did; and (2) whether the court's ability to pay determination is supported by substantial evidence. (See e.g., People v. Phillips (1994) 25 Cal.App.4th 62, 70 [sufficient evidence supported court's implied finding of ability to pay probation fee].)
Ability to Pay Determination
The probation report does not directly address Nelson's ability to pay the $900 presentence report fee. However, it provided the court with information about Nelson's family history, education, health status, assets, liabilities, and work experience with which to make an ability to pay determination. Nelson's Objection and Reply to Probation Report challenged the recommended fee as unjust because he had no current assets and there had been no hearing on ability to pay. At sentencing, appellant's counsel objected to the amount of the fee for "the lack of preparing a proper report." The court rejected those arguments, explained how the county had determined that $900 was the appropriate fee, and opined that Nelson's lengthy probation report had probably consumed more than $900 worth of time, so $900 was the appropriate fee. The court stated Nelson would be able to work while in prison and obtain money for his work, so the court was going to assess the $900 probation fee.
To the extent the probation officer or the court failed to explicitly comply with the procedural requirements of section 1203.1b, we find no prejudice. Read together, the 12-page probation report and 10-page Reply to the Report provide ample information regarding Nelson's ability to pay the presentence report fee. Further, while the court did not offer Nelson a separate hearing regarding his ability to pay that fee, that issue was addressed and argued at the sentencing hearing. While section 1203.1b permits a separate hearing on a defendant's ability to pay probation costs, the statute does not prohibit the court from conducting the hearing as part of the sentencing process. Nor does the statute require a formal hearing if a defendant is amenable to an informal proceeding. (People v. Phillips, supra, 25 Cal.App.4th at p. 70.)
The record indicates that the court made an ability to pay finding at the sentencing hearing, with defense counsel present and able to present evidence. Defense counsel argued the issue, but the court rejected the arguments. Nelson did not object to the court's ruling during the sentencing hearing as opposed to holding a separate hearing. Thus, Nelson is not entitled to any further proceedings regarding his ability to pay the presentence fee.
Determination Supported by Substantial Evidence
Nelson submits the court's ability to pay finding was not supported by substantial evidence. He posits that the court was apparently not aware that not all inmates can work in prison, they are paid between $0.30 and $0.95 an hour and only up to 50 percent of their wages can be applied to satisfy fines, fees and restitution. We disagree. The court properly considered Nelson's future prison wages when determining his ability to pay the presentence fee. (People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) Nothing in the record indicated that Nelson could not work in prison. He was currently working in the jail kitchen and laundry and had helped five inmates obtain their GED' s. While it may take years to pay the $900 fee using prison wages, there is no reason to believe it cannot be satisfied during his 10 years of incarceration. Accordingly, the court's finding of ability to pay is supported by the evidence.
To the extent Nelson believes the fee must be paid within a year, "it should have been apparent to the court that appellant would not in the coming year be able to pay more than a fraction of the monies owed," he is mistaken. While subdivision (e)(2) of section 1203.1b limits the court to considering no more than one year from the date of the hearing for purposes of determining "reasonably discernable future financial position," nothing in the statute requires that the fee imposed be paid within a year.
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DISPOSITION
The judgment is affirmed.