Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F0153
OPINION
BUTZ, J.
Defendant Paul Martin Perrault pleaded no contest to one count of felony unlawful sexual intercourse with a minor. (Pen. Code, § 261.5, subd. (d).) Following an evidentiary hearing, the trial court ordered him to pay all costs of his legal representation (§ 987.8, subd. (b)), probation (§ 1203.1b, subd. (a)) and incarceration (1203.1c, subd. (a)). Defendant claims the trial court abused its discretion in determining that he had the ability to reimburse the county for these costs. We agree and shall strike the order.
Undesignated statutory references are to the Penal Code.
PROCEDURAL AND FACTUAL BACKGROUND
The district attorney filed an information charging defendant with two counts of lewd and lascivious conduct on a child. (§ 288, subd. (a).) Pursuant to a plea agreement, defendant pleaded no contest to one count of felony unlawful sexual intercourse with a minor. (§ 261.5, subd. (d).)
At sentencing on May 3, 2006, the court placed defendant on formal probation for five years, and ordered him to register as a sex offender and serve 365 days in county jail. Against this jail term, defendant was granted 223 days of credit consisting of 149 actual days and 74 days of conduct credit. The court further ordered defendant to pay costs for his legal representation and other fees as recommended by the probation report, “subject to a right for [defendant] to have a hearing to make further determinations on [his] [a]bility to pay.” Prior to conducting a hearing on the issue, the trial court determined that defendant had the ability to pay and ordered him to pay $350 for the cost of the presentence probation report, $1,500 for the cost of representation by the public defender, $20 per day for the cost of time spent in county jail, and $35 per month for the cost of probation supervision. Defense counsel, noting that defendant was unemployed and had been disabled since 1991, objected to the reimbursement order and urged that it was inappropriate until the court held a hearing on defendant’s ability to pay.
In July 2006, the trial court held a hearing to determine defendant’s ability to pay costs relating to his legal representation, probation, and incarceration. The evidence presented at the hearing revealed that defendant had been disabled and unemployed since 1991 due to a lumbar disk injury he suffered from a fall. Medical records showed that defendant suffered from diabetes, irritable bowel syndrome and Bell’s palsy. Defendant, who was separated from his wife at the time of the hearing, received $750 per month in Social Security Disability benefits and had monthly living expenses of $1,300. Defendant also was homeless at the time of the offense in 2005 and had been homeless in 2003. Furthermore, defendant was currently incarcerated as part of his 365-day jail sentence.
Defense counsel argued that, due to defendant’s permanent disability, his serious medical conditions, and a $550 monthly deficit between his income and expenses, he had neither a present nor a reasonably discernible future ability to pay the costs at issue. Counsel also noted that the court could not consider a period of more than six months from the date of the hearing in assessing defendant’s future ability to pay.
The probation officer disagreed, and stated: “[I]t’s incorrect to believe we just look six months into the future. We have to look at the full term of probation and the likelihood at the end of probation that someone can address fines and fees.”
In finding that defendant had the ability to pay all costs of legal representation and other fees as recommended by probation, the trial court noted that one of the general conditions of probation to which defendant agreed, was to seek and maintain gainful employment so far as possible, and that “[e]ven if [defendant] . . . isn’t capable of doing that [obtaining gainful employment]--and that’s the determination probation is going to make during the course of this probation[,] . . . there is no evidence before the court on any expenses that he has, other than living expenses for himself. And consequently, I see no reason why [defendant] cannot make the effort to make some payments on his fines and fees and determination of his good faith efforts not only in seeking employment and becoming gainfully employed in the future, but in how much he pays and how regularly he pays will be considered as part of his probation[] in turn.”
DISCUSSION
The trial court may, after a hearing, make a determination of a defendant’s ability to pay all or a portion of the costs of legal representation (§ 987.8, subd. (b)), probation (§ 1203.1b, subd. (a)) or incarceration (§ 1203.1c, subd. (a)). “Ability to pay” means the overall capability of the defendant to reimburse the government for all or a portion of the costs at issue. (§§ 987.8, subd. (g)(2); 1203.1b, subd. (e); 1203.1c, subd. (b).) In determining a defendant’s ability to pay, the court must consider (1) the defendant’s present financial position; (2) the defendant’s reasonably discernible future financial position; (3) the likelihood that the defendant will be able to obtain employment; and (4) any other factor that may influence the defendant’s ability to pay. (§§ 987.8, subd. (g)(2)(A)-(D); 1203.1b, subd. (e)(1)-(4); 1203.1c, subd. (b)(1)-(4).)
On appeal, a trial court’s finding that a defendant has the ability to pay fees is reviewed for abuse of discretion. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1393.) The test for abuse of discretion is whether the trial court exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) An order for reimbursement is subject to reversal if it is not supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347, 351 (Nilsen); People v. Kozden (1974) 36 Cal.App.3d 918, 920-922.)
Pointing out that he has been disabled for 15 years and that his living expenses exceeded his monthly disability income, defendant argues the trial court abused its discretion in finding that he had the ability to pay more than $11,000 in fees and costs either at the time of the hearing or within the statutorily prescribed time periods.
In arriving at the $11,000 figure, defendant calculated the cost of incarceration as $7,300 ($20/day x 365 days), but that is based on a full year of incarceration. In fact, the incarceration figure will be somewhat less because defendant’s obligation is limited to the actual cost to the county. (People v. Poindexter (1989) 210 Cal.App.3d 803, 810-811; § 1203.1c, subd. (a).) The final figure will depend on the number of days defendant actually spends in jail. Since he had already received 74 days of conduct credit toward his 365-day sentence by the time of the hearing, defendant would be required to reimburse the county for no more than 291 days of incarceration.
The People reply that because defendant had a monthly income of $750 and “no other monthly monitory [sic] obligations” besides his own living expenses, and since the terms of defendant’s probation require him to seek future employment, the record contains substantial evidence that he had a present and future ability to pay the costs.
Defendant has the better argument.
I. Present Ability to Pay
The record before the court showed that defendant was disabled and unemployed since 1991, had a $550 monthly income deficit, had a history of homelessness, suffered from a variety of serious medical conditions, and was incarcerated at the time of the hearing. The court swept aside all these considerations with the observation that defendant had the ability to pay because his only expenses were “living expenses for himself.”
While it may be true that defendant only had to pay his own living expenses, we fail to discern how a permanently disabled, incarcerated defendant with a $550 monthly income deficit can reasonably be found to have a present ability to pay even a small portion of fees. The trial court thus exceeded the bounds of reason in finding that defendant had the present ability to pay reimbursement costs.
II. Future Ability to Pay
The reimbursement statutes provide the court may consider “reasonably discernible future financial position” and ability to obtain employment in determining whether to make a reimbursement order. (§§ 987.8, subd. (g)(2)(B) & (C); 1203.1b, subd. (e)(2) & (3); 1203.1c, subd. (b)(2) & (3).) However, the law is clear that in making this determination, the court cannot look more than six months into the future in the case of representation costs (§ 987.8, subd. (g)(2)(B) & (C)), or one year in the case of probation and incarceration costs. (§§ 1203.1b, subd. (e)(2) & (3); 1203.1c, subd. (b)(2) & (3).)
In finding that defendant had the future ability to reimburse the county for fees and costs, the trial court cited the fact that one of the general conditions of probation (on the court’s preprinted form) included the requirement that defendant “seek and maintain gainful employment so far as is possible and apply [his] earnings” to the requirements of the order. (Italics added.)
But the fact that defendant was ordered to comply with this standard condition of probation is no substitute for evidence that defendant was, in fact, capable of obtaining employment within the specified statutory period.
The trial court may have been influenced by the probation officer’s statement that defendant “appears capable to obtain employment and given an appropriate amount of time, he should be able to address Court-ordered fines and fees.” (Italics added.) However, the probation report cites no evidence that, despite defendant’s medical disability, history of homelessness, negative income-to-expense ratio and continued incarceration, he would be able to reimburse the county for fees and costs in the discernible future.
Section 987.8, subdivision (g)(2)(B) states in relevant part: “Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.” (Italics added.) Although defendant was sentenced to county jail rather than state prison, there is no reason to believe that a person serving time in a jail cell has a greater ability to earn income than a state prisoner.
The trial court and the probation officer appear to have based their conclusions about defendant’s future ability to pay on a misunderstanding of the time frame within which a defendant’s ability to pay can be considered. In opining that defendant appeared capable of paying the fees, the probation officer stated “it’s incorrect to believe we just look six months into the future. We have to look at the full [five-year] term of probation and the likelihood at the end of probation that someone can address fines and fees.” (Italics added.) Taking its cue from the probation officer, the trial court made the mystifying statement that whether defendant would be able to obtain gainful employment is a “determination probation is going to make during the course of this probation.” (Italics added.)
Both the court and the probation officer misstated the law. As noted, the court may look only six months into the future in determining ability to pay legal representation costs, or one year in the case of probationary and incarceration costs. The court was not permitted to wait until the end of defendant’s five-year probation term to determine his ability to pay. Nor could it lawfully delegate this fact-finding duty to the probation department. Finally, without evidence that defendant was capable of paying court-ordered fees and costs within six months (or one year) of the hearing, the court abused its discretion in requiring defendant to reimburse the county. (Nilsen, supra, 199 Cal.App.3d at p. 351 [order reversed where defendant “had no ability to pay for defense costs at the time of the court’s order and no discernible future ability to do so”].)
Since it is the People who seek reimbursement of the costs of legal representation, probation and incarceration, the People bear the burden of proving defendant’s ability to pay under the criteria set forth in sections 987.8, subdivision (g)(2), 1203.1b, subdivision (e), and 1203.1c, subdivision (b). The People did not meet their burden in this case. Accordingly, the trial court’s finding that defendant had the ability to pay these costs was an abuse of discretion. (See People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [order reversed where there was “a dearth of evidence that [the] defendant would be able to pay $9,200 in defense costs over the six months following the hearing”].)
This is not a case where the matter may be remanded to correct some procedural defect in the manner in which the hearing was conducted. (See, e.g., People v. Flores (2003) 30 Cal.4th 1059, 1065-1069; § 1260.) Here, a full evidentiary hearing was held and there was no substantial evidence supporting the order requiring defendant to pay the costs of legal representation, probation and incarceration. Hence, we will strike the order.
DISPOSITION
The order directing defendant to reimburse the county for costs, as specified in sections 987.8, 1203.1b and 1203.1c, is stricken. In all other respects, the final judgment (order imposing formal probation) is affirmed.
I concur: BLEASE , Acting P.J.
DISSENTING OPINION
Nicholson, J.,
I respectfully dissent.
In my view, there was substantial evidence to support the trial court’s finding of defendant’s future financial position. Defendant agreed to a probation condition requiring him to seek and maintain employment “as far as possible.” The probation officer reported that “defendant appears capable to obtain employment and given an appropriate amount of time he should be able to address Court ordered fines and fees.” Thus, the evidence supports the finding regarding defendant’s future financial position and the prospect that he would be able to obtain employment. This is especially true in light of the fact that defendant had very little actual jail time remaining as of the date of the ability to pay hearing.
Furthermore, evidence of defendant’s expenses was insubstantial. To the probation officer, defendant “reported . . . expenses of $1,300.” However, no evidence of general or specific living expenses was presented to the court at the ability to pay hearing. Therefore, defendant’s assertion regarding his living expenses is unsupported.
Because defendant was close to the end of his incarceration and had agreed to find work despite his physical limitations, there was sufficient evidence of ability to pay.
Defendant’s estimated repayment obligation therefore breaks down as follows: probation report--$350; legal representation --$1,500; probation supervision throughout the five-year probation period less the period of incarceration--$1,838 ($35 x approx. 52-1/2 mos.); and cost of incarceration--$5,820 ($20 x 291 days), for a total of $9,508. This figure could be reduced by whatever amount defendant saves by gaining an earlier release through additional conduct credits. (See § 4019.)