P. v.
Filed 6/24/13 P. v. Austin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
BRYCE ALLEN AUSTIN,
Defendant
and Appellant.
E056895
(Super.Ct.No.
BAF1200069)
OPINION
APPEAL
from the Superior Court
of
County. Jorge C.
Hernandez, Judge. Affirmed in part;
reversed and remanded in part.
Leonard
J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant
to a plea agreement, defendant and appellant Bryce Allen Austin pled guilty to
dismissed and defendant was placed on probation for a period of three years on
various terms and conditions, including serving 270 days in county jail and
paying the cost of probation supervision to be set by the probation department
in an amount between $591.12 and $3,750.
Defendant
subsequently violated probation when he was arrested for being under the
influence of a controlled substance (Health & Saf. Code, § 11550) and a new
case was filed.
title="">[3] Defendant admitted to violating probation,
and was reinstated on probation on various terms and conditions, including
serving his remaining 168 days in county jail, consecutive to the other terms of
90 and 10 days in custody. On appeal,
defendant contends that the matter must be remanded to allow the trial court to
set the amount of the cost of probation supervision and to determine his
ability to pay the cost of probation supervision. We agree and will remand the matter to the
trial court for a hearing on these two issues pursuant to Penal Code section
1203.1.
I
DISCUSSION
On
July 25, 2012, defendant
admitted to violating probation in this case as well as in case No.
BAM1101827. In regards to fees, the
court found that defendant had no ability to pay the booking fee; and that it
could do nothing about the probation department reimbursement fee. Defense counsel interjected, noting that the
probation supervision fee is based on an ability pay and that “it is supposed
to be assessed as the actual cost of probation,†which can range from $591.12
to $3,750. The court agreed that a
specific amount had to be assessed, but that amount had not yet been calculated. Defense counsel thereafter requested the
matter be set for an “ability to pay hearing,†or that the fee be reduced to
$591.12. The following colloquy
thereafter occurred between the court and defense counsel:
“THE
COURT: I don’t want to reduce it to the
lowest because he’s somebody they have to watch because he’s not behaving.
“[DEFENSE
COUNSEL]: I understand, your Honor.
“THE
COURT: The Department of Probation
charges according to how many man hours they have to expend in order to watch a
person. Somebody who is on bank status,
I agree with you. . . . And somebody
like that, which . . . just doesn’t follow any of the rules and regulations,
I’m not going to reduce it to the bare minimum possible. If you want [the] Department of Probation to
figure out how much they expended on him, that is fine. But I’m not going to do any reduction on that
until he kind of proves himself. And he
hasn’t proven himself yet.
“[DEFENSE
COUNSEL]: Your Honor, may we schedule
the—
“THE
COURT: When he gets out of custody, have
him put himself on calendar and we’ll deal with that.
“[DEFENSE
COUNSEL]: Okay. Thank you.â€
Defendant
argues that the matter must be remanded to allow the trial court to set the
amount of the cost of probation supervision, and for a hearing to determine his
ability to pay that fee. The People
claim the appeal should be dismissed because it is not ripe. In support, they assert the record does not
reflect (1) defendant has been released from custody, or (2) that he has moved
for a hearing on the costs and his ability to pay.
matter should be remanded for a hearing on these two issues.
Section
1203.1b, subdivision (b), states in pertinent part: “The court shall order the defendant to pay
the reasonable costs [of probation supervision and any presentence
investigation and report] 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
describes the procedure the trial court must follow before making such an
order. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400-1401.) The
court shall first order the defendant to appear before “the probation officer,
or his or her authorized representative†so that the officer may ascertain the
defendant’s ability to pay any part of these costs, and to propose a payment
schedule. (§ 1203.1b, subd. (a).) Unless the defendant waives the right, before
the court orders payment of these costs the defendant is entitled to a court
hearing on his or her ability to pay them. (§ 1203.1b, subds. (a) &
(b).) “The court shall [then] 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.â€
(§ 1203.1b, subd. (b).)
The
term “‘ability to pay’†is defined in section 1203.1b, subdivision (e), as “the
overall capability of the defendant to reimburse the costs, or a portion of the
costs, of conducting the presentence investigation, preparing the preplea or
presentence report, . . . and probation supervision . . .
and shall include, but shall not be limited to, the defendant’s: [¶]
(1) Present financial position.
[¶] (2) 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.â€
Where,
as here, the record does not indicate that the probation officer or the trial
court made a determination of defendant’s ability to pay probation supervision
costs, or that defendant was informed of the right to a court hearing on the
ability to pay, it has been held that a remand for the purpose of compliance
with section 1203.1b is warranted. (
see also People v. Pacheco,
1404.) However, a finding of ability to
pay probation supervision costs may be made by the trial court as part of the
sentencing process, without the necessity of a separate, formal hearing. (People
v. Phillips (1994) 25 Cal.App.4th 62, 70.)
Thus, a finding of ability to pay need not be express, but may be
implied through the content and conduct of other trial court hearings. (Id.
at pp. 71-72.)
Here,
defense counsel requested a hearing on the amount of the cost of probation
supervision defendant was required to pay and defendant’s ability to pay the
amount ordered. The court ordered the
probation department to assess that cost between a certain range and ordered
defendant to move for a hearing on his ability to pay once he was released from
custody. In essence, defendant is not
properly subject to an order to pay any particular amount of probation-related
costs. At most, he is subject to an
order for a determination of ability to pay that could require him to pay up to
certain amounts depending on his financial ability. A defendant may not be ordered to pay the
costs of probation as found by the probation officer. As quoted above, section 1203.1b clearly
provides that a defendant may request a judicial hearing once the probation
officer has determined the costs. The
trial court must determine, at that hearing, whether defendant has the ability
to pay the costs assessed by the probation officer. (§ 1203.1b, subd. (b).)
Accordingly,
the matter of probation costs is remanded for proceedings consistent with
section 1203.1b.
II
DISPOSITION
The
matter is remanded for the trial court to conduct proceedings regarding the
costs of probation consistent with section 1203.1b. The order to pay costs of probation under
section 1203.1 is vacated and set aside.
In all other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All future statutory references are to the
Penal Code unless otherwise stated.
name="_ftn2" title=""> [2] Defendant also admitted to violating
probation in case No. BAM1101827.
