P. v. Reulman













Filed 3/9/12 P. v. Reulman CA6

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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opinion has not been certified for publication or ordered published for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.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DOUGLAS REULMAN, Defendant and Appellant.

H036443 (Santa Clara County Super. Ct. No. CC955510)

A jury
found defendant Michael Douglas Reulman guilty of misdemeanor href="http://www.fearnotlaw.com/">assault (Pen. Code, §§ 240, 241, subd.
(a)).href="#_ftn1" name="_ftnref1" title="">[1] The trial court suspended imposition of
sentence, placed defendant on probation for three years, and ordered various
fines and fees. On appeal, defendant
challenges the imposition of the monthly probation supervision fee of $110 (§
1203.1b) and the criminal justice administration fee of $259.50 (Gov. Code,
§ 29550 et seq.). We reverse and
remand the matter to the trial court for a determination of defendant’s ability
to pay these fees.



I. Statement of Facts

Defendant
hit his brother-in-law with a pipe. The
victim received a bump above his eye, a scratch on his neck, and a cut on his
upper arm that required stitches.

II. Discussion

Defendant
contends that trial court erred in imposing the monthly probation supervision
fee of $110 and the criminal justice administration fee of $259.50 because it
did not determine his ability to pay these fees. He also contends that there is insufficient
evidence to support any implied finding of ability to pay, and his failure to
object to the imposition of these fees does not forfeit the issue.

At the href="http://www.mcmillanlaw.com/">sentencing hearing, the trial court
imposed a restitution fine of $100 (former § 1202.4, subd. (b)) and, in
the event probation was revoked, a probation revocation restitution fine of
$100 (§ 1202.44), a domestic violence fee of $400 (§ 1203.097,
subd. (a)(5)), a fee of $100 to a battered women’s shelter (§ 1203.097,
subd. (a)(11)(A)), a court security fee of $30 (former § 1465.8), a criminal
conviction assessment of $30 (Gov. Code, § 70373), a criminal justice
administration fee of $259.50 (Gov. Code, § 29550, subd. (c)), and a
monthly probation supervision fee of $110 (§ 1203.1b). The trial court also ordered defendant to
complete a certified domestic violence program (§ 1203.097, subd. (a)(6))
and pay all fees for that program. There
is nothing in the record indicating the amount of the program fees. However, the trial court stated that
participation in the domestic violence program would impose “a substantial
financial obligation” on defendant, and thus it was “very important” for
defendant to remain employed.
Accordingly, the trial court did not impose an additional jail sentence. Defendant did not object to the imposition of
fees.

People
v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco)
is instructive. In Pacheco, this court held that an objection is not required to
preserve a claim of insufficient evidence
to support an ability to pay finding as required by section 1203.1b and
Government Code section 29550. (>Pacheco, at p. 1397.)href="#_ftn2" name="_ftnref2" title="">[2] Pacheco
also set forth the requirements of section 1203.1b, that is, “ ‘the probation officer, or his or her
authorized representative, taking into account any amount that the defendant is
ordered to pay in fines, assessments, and restitution, shall make a
determination of the ability of the defendant to pay all or a portion of the
reasonable cost of any
probation supervision . . . . 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.’ (§ 1203.1b,
subd. (a).)” (Pacheco, at pp. 1400-1401.)
When the defendant does not waive this right, “ ‘the probation officer shall refer the matter to the court for
the scheduling of a hearing to determine the amount of payment and the manner
in which the 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 . . . .’ ” (Pacheco, at p. 1401.)

Here, as in Pacheco, there is no evidence that either the probation officer or
the trial court made a determination of defendant’s ability to pay the monthly
probation supervision fees. Nor is there any evidence that defendant was advised of his
right to have the court make this determination or that he waived this right.

The
Attorney General argues, however, that the finding of ability to pay may be implied
from the circumstances. She notes that
both fees were mentioned in the probation report, and since both required an
ability to pay finding this court can presume the trial court performed its
official duty to make this finding.
(Evid. Code, § 664.) While it is
true that the trial court’s finding of the defendant’s ability to pay may be
implied, this finding must be supported by substantial evidence. (Pacheco,
supra, 187 Cal.App.4th at p. 1398.)

Here, there
is insufficient evidence of defendant’s ability to pay the monthly probation
supervision fee. Defendant is 25 years
old and has two young children. He is
employed as a crew foreman by the family’s landscape business. However, defendant’s arm was severely injured
four years ago, and despite three surgeries, he is unable to perform all
aspects of his job. More importantly,
there is no evidence of his income or assets.
Though the trial court acknowledged the “substantial financial
obligation” imposed by his participation in the domestic violence program,
there is also no evidence of the amount of these fees or of his other
expenses. Since there is insufficient
evidence of defendant’s financial position, the matter must be reversed.

>Pacheco, supra, 187 Cal.App.4th 1392 also considered the defendant’s ability
to pay the criminal justice administration or booking fee. In that case, the trial court did not specify
the statutory basis of the fee, but this court concluded that the basis was
either Government Code section 29550, subdivision (c) or Government Code
section 29550.2 since the county was identified as the payee. (Pacheco,
at p. 1399.) Pacheco held that “a prerequisite to the imposition of a booking
fee, whether under Government Code section 29550, subdivision (c) or Government
Code section 29550.2, is a finding, whether express or implied, of the
defendant’s ability to pay. Such a
finding must be supported by substantial evidence. Further, a booking fee must not exceed the
actual administrative costs of booking, as further defined in the relevant
statutes.” (Pacheco, at p. 1400.) Since
there was no evidence of the defendant’s ability to pay the fee or of the
actual administrative costs of the booking, this court remanded the matter to
the trial court for further findings. (>Pacheco, at pp. 1400, 1403-1404.) Similarly, here, there is no evidence of
either defendant’s ability to pay the fee or the actual administrative costs of
booking.



>III.
Disposition

The order
is reversed. The matter is remanded with
directions to the trial court to determine, in accordance with the applicable
statutes, defendant’s ability to pay the monthly probation supervision fee of
$110 and the criminal justice administration fee of $259.50 before imposing
them.





_______________________________

Mihara,
J.







WE CONCUR:













______________________________

Premo, Acting P. J.













______________________________

Elia, J.