Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF103188, Bambi J. Moyer, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant Andrew Stankosky pled guilty to penetration of a person under the age of 18 years with a foreign object (Pen. Code § 289, subd. (h)) and having sexual intercourse with a person under the age of 18 years who was more than three years younger than himself (§ 261.5, subd. (c)). The court granted defendant probation and ordered that he pay the costs of his probation supervision. On appeal, defendant contends the court erred in concluding that he had the ability to pay such costs. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
The court takes judicial notice of its file in case No. E045985. (Evid. Code, § 459.)
FACTUAL AND PROCEDURAL HISTORY
Prior to sentencing, the probation officer recommended that defendant be granted a formal three-year term of probation on various terms and conditions. In addition, she advised that defendant be required to pay the costs of the presentence probation report in an amount not to exceed $318 and the costs of probation supervision in the amount of $252; however, should the level of probation supervision be modified, she advised that it be increasable to an amount not to exceed $1,908. At sentencing, defense counsel stated that “[defendant] is totally in agreement with the conditions set out by the probation officer.”
On May 11, 2007, the court granted defendant probation, a condition of which required that he register as a sex offender under the mandatory, statutory provision. The court additionally imposed the following fines and fees: $652 pursuant to section 290.3, a booking fee of $110, a $20 court security surcharge fee, and restitution in the amount of $200. As to the costs of the probation report and probation supervision, the court stated “You [are to] pay for the cost of—presentence costs as well as supervised costs or probation pursuant to [section] 1203.1[, subdivision] (b) of the Penal Code. The... presentence costs not to exceed $318. The supervised costs not to exceed $1,908.” The minute order reflects that, pursuant to section 1203.1b, the court ordered defendant to pay the cost of the preparation of the presentence report in an amount and manner to be determined by “Financial Services,” but not to exceed $318, and the costs of probation supervision in an amount not to exceed $252. However, it noted, “If level of probation supervision is modified, these costs may be increased to [an] amount not to exceed $1908.”
The requirement that defendant register as a sex offender for life was the basis for his previous appeal.
On February 18, 2009, defendant filed a motion to vacate reimbursement of the costs of probation. In that motion defendant maintained that the court had ordered probation supervision costs not to exceed $252, arbitrarily increased the amount of those costs without a judicial hearing, and that no determination of defendant’s ability to pay those costs had been made; hence, defendant requested that the entire amount of fees in excess of the $252 imposed pursuant to section 1203.1b be vacated. In opposition to the motion, the People asserted that the reimbursement amounts were within the amounts ordered by the court; the minutes reflected that on June 8, 2007, defendant had been reassessed probation supervision costs in the amount of $1,656; and defendant had failed to provide documentation regarding his ability or inability to pay those fees. Thus, the People argued defendant’s motion should be denied.
No minute order for June 8, 2007, appears in either this record or that of the previous appeal.
At a court hearing on March 3, 2009, the People and the court noted that defendant had still failed to provide supporting documentation regarding his ability to pay the probation supervision fees. The court trailed the matter to the afternoon calendar so that it could obtain defendant’s case file. On recalling the matter, the court indicated that it had defendant’s court file. Defense counsel contended that the increase in defendant’s probation supervision fees to $1,656 on June 8, 2007, without a hearing was unlawful. The court “venture[d] to guess what happened was they went to another level of supervision, because that was pre-authorized by the Court. That could have increased it up to that level and it was increased up to the maximum. That’s what happened.” The court then denied defendant’s motion without prejudice, noting that defendant had failed to provide documentation or factual support for his position that the level of supervision was or was not increased or, to the extent the motion could be deemed a request to review defendant’s current ability to pay, he had provided nothing to support such a determination. It reset the matter for March 26, 2009, to provide the parties an opportunity to address its concerns: defendant to file a supplemental brief with supporting documentation by March 19, 2009, and the People their response by March 23, 2009.
The People filed supplemental opposition on March 23, 2009, noting that defendant had still failed to provide the court with the supplemental information it had requested. The People attached a printout of defendant’s probationary information which reflected that defendant was assigned probation to supervision level 1—adult maximum supervision—on June 7, 2007, the cost of which was $1,908. The People further noted that defendant was a lifetime sex offender registrant. Coincidently, defendant filed his supplemental brief on March 23, 2009, as well. In it defendant contended that imposition of the probation supervision fees was invalid as the court failed to hold a hearing regarding the matter, failed to take an intelligent waiver of defendant’s right to such a hearing, and that the People had failed to show that defendant’s level of supervision was increased. Defendant asserted that he would present evidence of defendant’s inability to pay the fees at the hearing.
At the hearing on April 1, 2009, the People submitted on a probation memorandum compiled by Probation Officer Coleman Morris on either March 31 or April 1, 2009. Officer Morris testified that “[defendant] was assigned to a probation officer on a Level 1 case load on June 7 of 2007. And he continued to be supervised by that probation officer in the Riverside office until, I believe, it was June of 2008; wherein, once he obtained a residence in Moreno Valley. And his case was transferred to the Perris office. And he remained on Level 1 at that time.” Defendant submitted a financial affidavit to Financial Services sometime in 2007. Notes in defendant’s probation record reflected that defendant was initially homeless and unemployed. Defendant was initially assessed probation supervision fees of $1,656. On February 4, 2008, after defendant moved to Riverside County, financial services increased the amount of defendant’s probationary supervision fees to $1,908.
The reporter’s transcript reflects both dates. The actual memorandum is not a part of the record on appeal.
Defendant testified that he was currently employed by Bowman Trucking and that his monthly income “varies on the job. Depends on the week. I can make more or less.” Defense counsel introduced exhibit No. D, defendant’s 2008 W2 form and tax return. Those documents reflected that defendant earned a gross amount of $24,877.81. Defense counsel then introduced exhibit No. C, an undated application for appointment of counsel signed and filled out by defendant. Defendant testified that he completed the application when he was first released from jail. The application listed defendant’s employer as Doka USA, and indicated that his monthly gross earnings were between $1,800 and $2,200. It listed his net monthly income as $1,471. The application also listed his monthly expenses as totaling $1,510, including $400 a month for transportation.
This would appear consistent with the gross monthly income spread indicated in defendant’s application for appointment of counsel, i.e., approximately $2,000 per month.
The court sentenced defendant on May 11, 2007, to 365 days in jail with credit for 360 days. Thus, if defendant’s testimony is accurate, he would have completed the application sometime in May 2007.
In addition to the lack of a date, there are a number of other apparent errors and/or omissions in defendant’s application for appointment of counsel. First, defendant failed to indicate what gross monthly income in the $1,800 to $2,200 per month spread he used in making his computations. Second, defendant lists his tax withholdings as $482.10 and insurance withholdings as $209.58, but calculates his total payroll deductions as $209.58, obviously leaving out his tax withholdings. This would appear to understate his total net earnings. However, if one begins with his maximum stated gross monthly income of $2,200 and properly computes his total payroll deductions as $691.68, his net monthly income would be $1,508.32, i.e. greater than that reflected in the application. Third, defendant lists the total amount of his debts, including all court ordered fines, as $3,223. However, immediately adjacent to this total is an interlineated note indicating that this total is apparently “wrong.” There is no information in the record to elucidate on this insertion. Fourth and finally, defendant apparently changed his mind about the value of his 1992 Ford F150 truck. The ensuing alterations on the form make it difficult to determine what value he gave that vehicle as well as what he determined was the total value of the property he owned. However, it is apparent defendant left out the amount he indicated he had in the bank in determining the total value of his property.
Defendant testified that he changed employers in January 2009, approximately two- and one-half months prior to the hearing. He testified that he now earned between $600 and $800 more per month than that reflected on his application or approximately $3,000 monthly. However, defendant had since purchased a new vehicle for which he now had a monthly $400 payment. His statement in the application that he had $400 a month in transportation expenses referred exclusively to fuel; thus, he now had $800 in monthly transportation expenses. Defendant also introduced into evidence a statement from the County of Riverside, Department of Child Support Services reflecting that defendant owed a total remaining balance of $3,293.13 in child support payments payable in monthly installments of $443.
This would appear to indicate that $2,200 was his actual gross monthly income when he filed the application and that his income had now increased $800 a month.
The statement itself is undated; however, it indicates that the above-listed balance was due as of March 26, 2004. Thus, the statement may not accurately reflect defendant’s child support balance as of the date of the hearing, April 1, 2009.
Defendant testified that he was in jail for eight-and one-half months in 2007. He was also homeless for four months that year. He previously worked for Belca USA. When he was initially released from jail, he met with his probation officer, with whom he went over his fees and fines. He informed the officer that he could not afford to pay them. The officer referred him to Financial Services. Financial Services told him to start making $25 monthly payments as soon as he became employed. Nevertheless, defendant immediately began making the payments despite being unemployed, using money given him by a pastor. Defendant believed that he was required to pay off all his court ordered fees and fines prior to expiration of his probation.
We note that both the probation officer’s and defendant’s testimony that defendant was homeless and unemployed upon release from jail conflicts with defendant’s testimony that he filled out the application for appointment of counsel soon after his release. This is because the application reflects employment. It would appear that defendant’s application was more likely filed sometime in 2008 when, according to his tax return, he earned a total of $24,877.81, an amount consistent with that listed as his monthly gross earnings in the application.
The court indicated that a review of the “case print” reflected that the total amount of fines imposed was $3,223. However, the aggregate amount currently owed, reflecting payments defendant had already made, amounted to $2,648. The court computed the amount defendant would have to pay monthly in order to pay off the amount owed by the expiration of his probation on May 20, 2010, as $147. Defense counsel argued that “[b]ased on the evidence and based on [defendant’s] income for ’07 and ’08, we are requesting that it be found that he has an inability to pay these fines and fees.” This was because, in defense counsel’s opinion, the fees imposed could only be done so for the term of his probation, i.e., he would have to pay them off prior to termination of his probation. The court recessed to “crunch the numbers.”
The case print is not a part of the record on appeal either. We note, however, that this amount matches the amount of debts defendant listed in his application for appointment of counsel.
This may explain the interlineation on the application for appointment of counsel that defendant’s total debts stood at $3,223 was “wrong.”
Upon recommencement of the proceedings the court observed, “[c]ertainly, with respect to probation supervision, and it appears when he was first put on probation, he was put on Level 1 probation. And the probation costs were assessed at $1,656. My concern, with respect to the case, is that it was later increased to $1,908, but there doesn’t seem to be any reason as to why. The probation supervision level was the highest level that it could be at. I don’t see that the level was modified or the service of probation [was] modified.” Therefore, the court reduced the total amount of probation supervision costs by $252, from $1,908 to $1,656.
The court then indicated the evidence suggested that defendant earned $3,000 gross per month, which in turn would amount to approximately $2,000 net. The court found that defendant owed $443 per month for child support, but that the child support was payable for only eight months. The court found that defendant’s expenses were exactly as listed in his application for appointment of counsel excepting only the amount he was now claiming for transportation and child support payments: the court viewed $400 per month for gas as “excessive” and determined that $500 for transportation including his car payment and gas would be appropriate. Thus, the court calculated defendant’s total aggregate expenses as $1,873 which would leave him $127 per month if his net income was $2,000. The court further noted that once his child support balance was paid off, defendant would have an additional $443 per month. The court ordered that defendant’s total amount of fines and fees be reduced by $252 to $2,396: “I will further order that he pay the rest, and order that he report to Financial Services to set up a payment plan that is in keeping with the Court’s findings in this case.”
The balance on defendant’s child support payments totaled $3,293. Divided by monthly payments of $443 meant that it would be paid off within eight months. We note that defendant did not list his child support balance in the list of debts reflected in his application for appointment of counsel.
DISCUSSION
On appeal, defendant contends the court erred in determining that defendant had the ability to pay the costs of his probation supervision. We disagree.
Section 1203.1b, subdivision (a), in pertinent part, provides: “In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report... and in any case in which a defendant is granted probation... the probation officer... 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..., of conducting any preplea investigation and preparing any preplea report [, and] of conducting any presentence investigation and preparing any presentence report.... The reasonable cost of these services and of probation supervision... 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.”
On review of a court’s order imposing probation supervision fees pursuant to section 1203.1b we will uphold the order if it is supported by substantial evidence: “‘[w]e must “view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence....” [Citation.]’ [Citation.] Any conflicts in the evidence must be resolved in favor of the finding below. [Citation.]” (People v. Phillips (1994) 25 Cal.App.4th 62, 71-72.) 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.” Section 1203.1b, subdivision (e), provides that “the term ‘ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs... 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.”
Defendant contends the court failed to consider defendant’s present financial position, instead focusing only on his past earnings: “Here, it appears the lower court did not determine appellant’s present ability and/or future ability to pay probation costs. Instead, it erroneously relied on appellant’s 2008 income which apparently was more than his current 2009 income.” “[T]he court mistakenly believed appellant’s gross income was $3,000.00 and his net income was $2,000.00.” The record demonstrates the exact opposite. Although defendant failed to provide the court with any documentation regarding his current earnings, he testified that he was presently earning $3,000 gross per month. In contradistinction, defendant’s 2008 W2 and tax return reported his gross earnings as $24,877.81, approximately $2,000 per month. Thus, it is obvious the court used defendant’s self-reported current earnings, rather than his 2008 income in determining his ability to pay the costs of his probation supervision.
Moreover, the court’s determination that defendant’s current net income amounted to $2,000 per month was reasonable. According to defendant’s application for appointment of counsel he was previously earning between $1,800 and $2,200 a month. His total withholdings amounted to $691.68. This would be 38 percent and 31 percent of his reported gross earnings respectively. Applying the same percentages of withholdings to his current reported earnings would result in $930 and $1,140 respectively. Thus, a $2,000 net monthly income was within the previously reported percentage spread of his withholdings. Likewise, the court’s findings regarding defendant’s expenses were supported by substantial evidence. The court found defendant’s expenses were precisely those he reported in the undated application for appointment of counsel, excepting only his transportation fees and child support payments. The court raised the former from $400 to $500 in order to account for defendant’s new truck payment. The court’s determination that $400 a month in expenses for fuel alone was unreasonable, was rational. Thus, the court’s determination that defendant had $127 a month left after all his expenses and withholdings was supported by substantial evidence. Moreover, the court’s finding that defendant would have an additional $443 per month after his child support payments were completed in eight months also found ample support in the record. Therefore, the court’s ultimate finding, that defendant had the ability to pay probation supervision costs, was supported by substantial evidence.
The court could reasonably have concluded that defendant’s failure to provide current documentation regarding his child support obligations negated any consideration of what he owed back in 2004. Indeed, if defendant had made the $443 monthly payments beginning in March 2004 he would have paid off the balance long ago.
Furthermore, we note that while the court determined that defendant had the ability to pay the costs of his probation supervision, it never expressly determined what amount any monthly payments should be. Rather, it deferred that decision to Financial Services, specifically referring defendant to that department in order for it to determine what payments defendant could afford: “I will further order that he pay the rest, and order that he report to Financial Services to set up a payment plan that is in keeping with the Court’s findings in this case.” Thus, although the court determined that defendant had $127 of expendable monthly income, it did not order him to make $127 monthly payments towards his probation supervision costs.
Finally, contrary to the implications made below, nothing in section 1203.1b requires that defendant complete payment for probation supervision costs prior to his completion of probation or enables the court to extend the term of defendant’s probation for failure to pay. Section 1203.1b, subdivision (d), expressly indicates that “[e]xecution may be issued on the order issued pursuant to this section in the same manner as a judgment in a civil action.” Thus, should defendant fail to make full payment of his probation supervision costs by the time his probation is terminated, the state has recourse to collect the costs through other means. Likewise, case law has firmly established that payment of court ordered costs of probation supervision may not be imposed as a condition of probation. (People v. Bradus (2007) 149 Cal.App.4th 636 [defendant entitled to apply for expungement of criminal conviction where he successfully completed probation even though he failed to pay court ordered costs of probation supervision]; People v. Hall (2002) 103 Cal.App.4th 889 [probation may not be made conditional upon payment of the costs of probation supervision]; Brown v. Superior Court (2002) 101 Cal.App.4th 313 [same].) Here, defendant’s payment of probation supervision costs was not included amongst the terms and conditions of his probation and, of course, could not legally be done so. Thus, we find no need to comply with defendant’s request that we provide further clarification to the court below that termination of defendant’s probation may not be made conditional upon his payment of the costs of his supervision.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J., RICHLI J.
Thus, defendant’s self-proclaimed expenses exceeded both his stated and properly calculated net income. Although the second page of the application requested an explanation as to how the applicant was meeting his living expenses if they exceed his income, defendant failed to provide any such clarification