29 Cal. App. 5th 820
Cal. Ct. App.2018Background
- Defendant John David Neal was convicted by jury of being an ex-felon in possession of firearms after police removed guns from his home following his report of weapons at the marina and a welfare check; wife's consent and a walk-in closet led officers to seize six firearms.
- Officer Gragg later learned Neal had a 2006 felony and the seized guns were converted from safekeeping to evidentiary status; Neal left a voicemail admitting ownership which was played at trial.
- Neal testified about inheriting the guns as part of an estate and denied intent to conceal; he acknowledged the prior felony conviction.
- Trial court suspended imposition of sentence and placed Neal on three years’ probation, adopting the probation officer’s recommendation that Neal pay probation supervision costs up to $75/month and ordered a $176 probation report fee.
- The probation report contained no documented determination of Neal’s ability to pay and Neal was not advised of statutory rights under Penal Code §1203.1b to a court hearing or to counsel concerning ability-to-pay.
- Appellant appealed, challenging (1) the admissibility of firearms (warrantless search) and (2) imposition of the probation supervision fee without an ability-to-pay determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether firearms seized from home were the product of an unconstitutional warrantless search | People: officers acted lawfully after welfare check and consent by Neal’s wife; seizure for safekeeping/evidence was permissible | Neal: seizure was warrantless and unlawful, so evidence should be suppressed | Court rejected suppression claim; conviction affirmed on substantive charge |
| Whether court may impose probation supervision fee without statutorily required ability-to-pay process | People: court may defer fee determination to probation officer | Neal: statutory scheme requires probation officer determine ability and notify defendant of right to a court hearing; court must make final determination unless defendant knowingly waives it | Court found statutory procedure not followed and vacated the order as to the probation supervision fee; remanded for compliance with §1203.1b |
| Whether defendant was informed of right to judicial hearing and waiver before probation imposed fee | People: not argued successfully; court treated probation as making decision | Neal: lacked notice and waiver, so entitlement to judicial determination existed | Court held defendant was not informed and did not waive rights; reversal as to fee required |
| Whether remand is required and scope of remedy | People: fee imposition acceptable as recommended | Neal: remand required for ability-to-pay hearing or valid waiver | Court remanded for determination of ability to pay, amount, and payment terms under §1203.1b |
Key Cases Cited
- People v. McCullough, 56 Cal.4th 589 (Cal. 2013) (statute requires ability-to-pay determination before ordering certain fees)
- People v. Pacheco, 187 Cal.App.4th 1392 (Cal. Ct. App. 2010) (failure to follow §1203.1b procedure requires remand)
- People v. O'Connell, 107 Cal.App.4th 1062 (Cal. Ct. App. 2003) (probation/court must advise defendant of right to hearing on ability to pay)
- People v. Trujillo, 60 Cal.4th 850 (Cal. 2015) (procedural waiver principles and appellate review of fee claims)
- People v. Valtakis, 105 Cal.App.4th 1066 (Cal. Ct. App. 2003) (probation officer’s duty to assess ability to pay and issues of waiver)
- People v. Phillips, 25 Cal.App.4th 62 (Cal. Ct. App. 1994) (discussing policy of shifting costs to defendants)