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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056895

v.                                                                       (Super.Ct.No. BAF1200069)

BRYCE ALLEN AUSTIN,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside 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.




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       Pursuant to a plea agreement, defendant and appellant Bryce Allen Austin pled

guilty to second degree burglary. (Pen. Code, § 459.)1 In return, the remaining

allegations were 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 $3,750.2

       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.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.




       1   All future statutory references are to the Penal Code unless otherwise stated.

       2   Defendant also admitted to violating probation in case No. BAM1101827.

       3 Defendant pled guilty in that subsequent case and was sentenced to 90 days in
county jail. He also admitted to violating probation in case No. BAM1101827, and was
sentenced to a consecutive 10-day term.


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                                              I

                                      DISCUSSION4

       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,

       4  The details of defendant‟s criminal conduct are not relevant to the limited legal
issue raised in this appeal, and we will not recount them here.


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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.”

       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. 5 In the

alternative, the People agree that the 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

       5  Because the trial court was required to hold a hearing to assess the amount of
the cost of probation supervision based on a defendant‟s ability to pay if requested by a
defendant, we decline to dismiss the appeal on ripeness grounds. (See § 1203.1b,
subds. (a) & (b); People v O’Connell (2003) 107 Cal.App.4th 1062, 1064, 1067-1068.)


                                              4
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.” (§ 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.”

       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.

(People v. O’Connell, supra, 107 Cal.App.4th at pp. 1067-1068; see also People v.


                                              5
Pacheco, supra, 187 Cal.App.4th at pp. 1401, 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.




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                                             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.




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