P. v. Mattson



















Filed 6/29/12 P.
v. Mattson CA1/1

>

>

>

>

>

>NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION ONE




>

THE PEOPLE, Plaintiff and Respondent, v. BRIAN JAMES MATTSON, Defendant and Appellant.

A132978 (Contra Costa County Super. Ct. No. 5-100611-3)

INTRODUCTION

Defendant Brian
James Mattson timely appeals from a judgment entered on his plea. He contends the trial court erred when it
imposed (1) a probation report fee of $176 pursuant to Penal Code section
1203.1b and (2) a criminal justice administration fee of $340 (CJA fee)
pursuant to Government Code sections 29550 et seq. At sentencing, defendant objected to
imposition of both fees on the grounds that he did not have the ability to pay
them. Nevertheless, the Attorney General
argues defendant has forfeited his claims, but concedes that if the claims are
not forfeited, the probation report fee was improperly imposed. As to the CJA fee, the Attorney General
argues the fee is mandatory and requires no finding of ability to pay.

We find no
forfeiture and accept the Attorney General’s concession as to the probation
report fee. Therefore, we will remand
the matter to the trial court for a determination of defendant’s ability to
pay. With respect to the CJA fee, we
decline to decide whether the fee is mandatory or discretionary, since the
court neglected to identify the statutory authorization for the fee. However, since we are remanding the matter
for an ability to pay determination, we will also direct the court to identify
the statutory basis for the CJA fee and take into account defendant’s ability to
pay, if appropriate, under the identified statute. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 18, 2007, police officers employed by the City of Brentwood
in Contra Costa County searched the residence and garage belonging to defendant
and his wife and discovered “marijuana cultivation in the garage.”

On August 10, 2011, pursuant to a negotiated
disposition, defendant Mattson entered pleas of no contest to possession of
at least 28.5 grams of marijuana, a misdemeanor, and cultivation of marijuana,
a felony. (Health & Saf. Code,
§§ 11357, subd. (c), 11358.) A
third count, charging possession of marijuana for sale, was dismissed. (Health & Saf. Code, § 11359.) All charges against defendant’s wife were
also dismissed. As part of the bargain,
defendant was promised that he would be placed on probation for 18 months and
that if he successfully completed probation his felony conviction would be
dismissed nunc pro tunc. Additionally,
he was not required to sign an appeal waiver.

Immediately upon entering his pleas,
defendant was placed on court probation and ordered to pay restitution fines
pursuant to Penal Code sections 1202.4 and 1202.44. He was also “ordered to contact the court
collections and compliance unit at Alliance One to make payments of fines and
fees and notify CCU and Alliance One of any change of your address or telephone
number within 10 days.”

When the court imposed a probation
report fee of $176, and a CJA fee of $340, defense counsel objected: “And, Judge, let me interpose here. For those fines and fees, I do object to the
imposition of those fines and fees. I
believe the court has to find present ability to pay. I know that my client and his wife are on a
very limited income. [A]nd I don’t think
that he has the ability to pay. [¶] I know that the $176 fee what we’ve
been doing is allowing the probation to sort of make an assessment of the
ability to pay. [T]he $340 fee I think
the court can only impose if there’s a present ability to pay, and I honestly,
Judge, under the circumstances and the fines and fees that the court already
has imposed . . . I don’t think that Mr. Mattson has the ability to
pay them.” The court responded: “And I appreciate those concerns, but I do
not have sufficient information before me today to make that
determination. When Mr. Mattson goes to
CCU, they will take all of his financial information and assess his ability to
pay. If he feels at that time that there
is a reason why he cannot pay, he can always come back to court at that time
and then I would have the financial information before me.” Defense counsel reiterated: “Okay.
Well, for the record, I am objecting.”

The court did not specify the
statutory basis for the CJA fee. The
probation report, which was dictated and typed April 23, 2009, did not mention any fines or fees. Nor did it mention any right to an ability to
pay hearing.

Under the heading “Additional
Terms,” the probation order contains a checked box next to the words “$340
CJA.” The order also states, “Although
not a condition of Probation, you are ordered to pay the following fees: . . . $176 Probation Report.”

A separate one-page form, dated and
signed the same day as defendant’s plea, sentencing hearing, and probation
order, is entitled “Payment of Fines and Fees.”
It states that as to fines and fees that are not a condition of probation, “You are ordered to pay your
fines and fees . . . in full within 90
days” to Alliance One, located in the State of Washington. (Original italics & bold.) The form further stipulates that if the
probationer is unable to pay these fines and fees within 90 days, he or she
must contact Alliance One, at which time “[a] collections officer will review
with you whether you are able to pay all or part of your fines and fees. If it is determined that you are able to pay
a certain amount, and you do not agree, you have the right to a hearing in this
Court to decide what amount, if any, you must pay.” The form goes on to describe the
probationer’s rights at this hearing, and concludes: “If you do not contact Alliance One, you
waive (give up) your right to a hearing and the full amount of your court
ordered fines and fees which are not
a condition of your probation will be due within 90 days from the date of your sentence.” (Original bold.)

As to fines and fees which >are a condition of probation, the form
states: “You are ordered to pay your
fines and fees . . . in full by the end of your probation.
You have the same right to a hearing as described above regarding these
fines and fees if you do not agree with Alliance One’s assessment of your
ability to pay. [¶] If you desire
such a hearing, you must contact your attorney or probation officer to request
a hearing.” Defendant signed the form,
indicating that he had received a copy of it and understood and agreed to its
terms.

DISCUSSION

Probation Report Fee

> Defendant
contends that the probation report fee should not have been assessed because
neither the superior court nor the probation department determined that he had
the ability to pay it. The Attorney
General argues that defendant has forfeited the claim because his signature on
the “Payment of Fines and Fees” bound him to the remedy provided in the form
and constituted a waiver of his right to contest, on appeal, his ability to pay
the fines and fees ordered by the trial court.
She also argues this case is governed by People v. Valtakis (2003) 105 Cal.App.4th 1066 (>Valtakis). We reject both arguments and find no
forfeiture.

First, >Valtakis is inapposite because here
defendant objected to the imposition
of the fines and fees in his case.
Second, defendant specifically negotiated and preserved his href="http://www.mcmillanlaw.com/">right to appeal as a condition of his
acceptance of the plea bargain. Finally,
a
condition precedent to imposition of a probation report fee is the
determination that defendant has the ability to pay it. As provided in pertinent part by Penal Code
section 1203.1b, subdivision (b): “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, or his or her authorized representative.” The statute also sets forth elaborate
procedures for determining a particular defendant’s ability to pay. It also specifies that defendant has a right
to a hearing before the court if it disagrees with the probation officer’s
initial assessment of his ability to pay.
The defendant may give up his or her right to a hearing at which the
court determines his or her ability to pay and the payment amount, but the
waiver must be “knowing and
intelligent.” (Pen. Code,
§ 1203.1b, subd. (a).) Here, none of the
statutorily mandated procedures were followed.
The probation report made no mention of probation fees and made no
determination of defendant’s ability to pay.
It did not advise defendant of his right to a separate hearing on that
issue. By signing the “Payment of Fines and Fees” form, defendant could not have
forfeited statutory rights of which he was never told and which were not even
mentioned in the form.

The Attorney
General concedes that if the claim is not waived, it is meritorious, because
Alliance One is not an entity authorized by law to conduct ability to pay
assessments. As respondent notes,
“Alliance One serves as the collection agency for all debts owed to the Contra
Costa County Superior Court.” Respondent
informs us that she “has not found any authority authorizing the county to
utilize its private collection agency to perform the assessments required under
Penal Code section 1203.1b, subdivisions (a) and (f).” Nor have we.
However, Penal Code section 1203.1b,
subdivision (a) expressly gives the probation department the option of
designating an “authorized representative,” and the record provides no basis
for finding that Alliance One has, or has not, been so designated by the
probation department. Nevertheless,
despite the statutory mandate and defendant’s timely objection, neither the
probation department nor the court made an ability to pay determination, or
followed the procedures set forth by statute.
Therefore, we must remand the matter for a determination of defendant’s
ability to pay the probation report fee.

Criminal Justice Administration Fee

The trial court also imposed a CJA
fee of $340. Neither the court, nor the
minute order, specified the statutory basis for the fee. “Government Code sections 29550, 29550.1, and
29550.2 govern fees for booking or otherwise processing arrested persons into a
county jail. To some degree, they vary
based on the identity of the arresting agency.
Arrests made by a ‘city, special district, school district, community
college district, college, university or other local arresting agency’ are
governed by Government Code sections 29550, subdivision (a)(1) and
29550.1. Arrests made by a county are
governed by Government Code section 29550, subdivision (c) and those made by
‘any governmental entity not specified in Section 29550 or 29550.1’ are
governed by Government Code section 29550.2, subdivision
(a). . . .” (>People v. Pacheco (2010) 187 Cal.App.4th
1392, 1399, fn. 6 (Pacheco).)href="#_ftn1" name="_ftnref1" title="">[1]

Here, the record shows that
defendant was arrested by a police officer employed by the City of
Brentwood. The record does not show
where he was booked. Nor does the record
reveal to which agency―city or county―the CJA fee was made payable.

Citing the rule that statutes must
be read in harmony (People v. Murphy
(2001) 25 Cal.4th 136, 142), the Attorney General argues that the CJA fee for
reimbursement of expenses related to booking is mandatory; that is, the fee
must be imposed regardless of defendant’s ability to pay. She arrives at this conclusion by reading the
relevant statutes to mean that the ability to pay provision contained in
Government Code section 29550, subdivision (d) applies only when “a county
entity is the arresting agency” and not when a city is the arresting
agency. She also argues that reference
to “ ‘actual administrative costs’ is clearly a requirement for the county
to determine a fixed amount representing an average cost for ‘booking or
otherwise processing arrested persons’ ” and need not be found in each
individual’s case.

Under the Attorney General’s
reasoning, persons arrested by county law enforcement officials (Gov. Code,
§ 29550, subd. (c)), and persons arrested by “any governmental entity not
specified in Section 29950 or 29550.1” (Gov. Code, § 29550.2), are
entitled to an ability to pay determination, but persons arrested by law
enforcement officials employed by “a city, special district, school district,
community college district, college, or university” (Gov. Code, § 29550.1)
are not.

“Our fundamental task . . . is to
ascertain the Legislature’s intent so as to effectuate the law’s purpose. [Citation.]
[W]e construe the words in question ‘ “in context, keeping in mind
the nature and obvious purpose of the statute . . . .” [Citation.]’
(Ibid.) We must harmonize
‘the various parts of a statutory enactment . . . by considering the
particular clause or section in the context of the statutory framework as a
whole.’ [Citations.] We must also avoid a construction that would
produce absurd
consequences, which we presume the Legislature did not intend. [Citations.]”
(People v. Mendoza (2000) 23
Cal.4th 896, 907–908.)

In general, “recoupment statutes
reflect a strong legislative policy in favor of shifting costs arising from
criminal acts back to convicted defendants and replenishing public coffers from
the pockets of those who have directly benefited from county expenditures.” (People
v. Bradus (2007) 149 Cal.App.4th 636, 643.)
Specifically, the Legislative Counsel’s Digest of a 1993 bill that amended
Government Code section 29550.1 noted that under then-existing law, a judgment
of conviction was authorized to include an order for the payment of the CJA
fee. The express purpose of the
amendment was to “require that the
judgment of conviction contain an order for payment of the fee.” (Legis. Counsel’s Dig., Assem. Bill No. 2286
(5 Stats. 1993–1994 Reg. Sess.) Summary Dig., p. 364, italics added.) However, when viewed in context with other
laws in the same statutory scheme enacted for the purpose of recouping booking
fees, we can find no clearly expressed legislative intent to condition the >amount of the fee on the agency which
effected the arrest. However, we need
not decide whether the Legislature intended such a problematic consequence on
the record before us. href="#_ftn2" name="_ftnref2" title="">[2]

Here, the record fails to show the statutory basis for
the fee, or if defendant was booked at the county jail. Moreover, the record does not show that the
fee imposed reflects the actual administrative costs incurred. (Gov. Code, §§ 29550, subds. (a)(1),
(c); 29550.2, subd. (a); Pacheco, supra,
187 Cal.App.4th at p. 1400.) In
addition, without fixing the amount of any CJA fee that may be due, the court
cannot make a reasoned determination of defendant’s ability to pay the
probation report fee, insofar as that determination must “tak[e] into account any amount that the defendant is ordered
to pay in fines, assessments, and restitution.”
(Pen. Code, § 1203.1b, subd. (a).)
For these reasons, remand for determination of defendant’s ability to
pay the CJA fee is also required.

DISPOSITION

The matter is remanded for
determination of defendant’s ability to pay the probation report fee and the
CJA fee. In all other respects, the
judgment is affirmed.







______________________

Marchiano, P.J.





We concur:





______________________

Dondero, J.



______________________

Banke, J.