People v. HallPeople v. Hall
Opinion
Introduction
Appellant Mark Hall challenges the trial court’s order requiring him to perform community service in lieu of paying the costs of probation. We conclude the trial court erred by failing to conduct a hearing regarding appellant’s ability to pay and by ordering him to perform community service in lieu of monetary payment.
Background and Procedural History
Appellant, who had a prior felony conviction, pled guilty to possеssing a firearm. (Pen. Code, § 12021, subd. (a)(1).) On March 9, 1998, the trial court suspended imposition of sentence and placed appellant on probation on conditions including service of 181 days in jail and payment of $200 as a restitution fine (Pen. Code, § 1202.4, subd. (b)).
On May 22, 2000, appellant appeared at a hearing on a possible probation violation. The court announced that appellant owed $840 and the Probation Department sought to convert that amount to 160 hours of community service. A report by appellant’s probation officer revealed that the $840 comprised a $200 restitution fine, a $20 “rеstitution fine service charge,” a $570 cost of probation services, and a $50 “collection installment fee.” Appellant told the court he could pay “the fine”
On December 22, 2000, the court revoked appellant’s probаtion after he failed to appear at a hearing. On March 21, 2001, appellant admitted he violated probation by failing to report to his probation officer. The court reinstated aрpellant’s probation but, after learning he was unemployed, modified the terms of probation by ordering him to perform 139 hours of community service “in lieu of the cost of probation services.”
Appellant then filed the instant appeal of the court’s orders modifying the conditions of his probation.
Discussion
1. The trial court could not condition appellant’s probation on performance of community service in lieu оf paying the costs of probation.
Appellant contends the court erred by conditioning his probation on performance of community service to pay the costs of probation.
A dеfendant who is granted probation may be ordered to pay the costs of probation supervision and the preparation of probation reports, if he is financially able to do so. (Pen. Code, § 1203.1b, subds. (a), (b).) However, payment of such costs cannot be made a condition of probation. (People v. Hart (1998)
The trial court never referred to payment of the probation costs or performance of community service as a condition of probation. On the other hand, the court never stated payment or community service was just an order, not a condition of probation. The Probation Department, however, clearly viewed appellant’s failure to pay the costs or perform community service as a probation violation.
There is no need, however, to determine whether the court intended performance of community service as a condition of probation or just an order. We simply deem the requirement an order, not a condition, and proceed to consider other aspects of the сourt’s order.
2. The trial court erred by failing to conduct an evidentiary hearing regarding appellant’s ability to pay probation costs and further erred by “converting’ the costs to community service.
Aрpellant contends the trial court lacked authority to order him to pay probation
Penal Code section 1203.1b, subdivision (a) requires the probation officer to determine a defendant’s ability to pay all, or a portion of the reasonable cost of probation supervision and probation report preparation. The statute also requires the probation officеr to inform the defendant he has a right to have the court determine his ability to pay and the payment amount. The defendant may waive the right to such a determination only by a knowing and intelligent waiver. (Pen. Code, § 1203.1b, subd. (a).) Absent such a waiver, a court must conduct an evidentiary hearing. If the court determines the defendant is able to pay all or part of the costs, the court is required to set the amount of the payment and order the defendant to pay that amount to the county in a maimer that is reasonable and compatible with the defendant’s financial ability. (Pen. Code, § 1203.1b, subd. (b).) The statute also providеs for additional hearings during the period of probation to review the defendant’s ability to pay the probation costs. (Pen. Code, § 1203.1b, subd. (c).)
The record on appeal fails to reflect any evidence that appellant was informed of his statutory right under Penal Code section 1203.1b to a court hearing and judicial determination regarding his ability to pay probation costs. Moreover, therе is no indication appellant waived his rights to a court hearing and judicial determination. The court did not conduct a hearing or receive evidence, apart from sketchy information contained in the probation report, regarding appellant’s financial ability to pay probation costs. The court made no finding regarding appellant’s ability to pay all or part of the probation costs. Its “conversion” of the probation costs to community service, however, may evidence an implicit determination that appellant was unable to pay any part of the costs of probation.
Limited information in the record relative to appellant’s financial circumstances support his claim of indigency. The January 7, 1998 pre-plea probation report stated appellant lived in a motel and earned about $1,000 per month from recycling. The report rated his income stability as “marginal.” The probation officer’s May 8, 2000 “Notice to Court of Technical Violation” noted appellant’s “report in person slips” showed appellant’s monthly income as either zero or $221 in general relief benefits. This information suggested appеllant was indigent and cast substantial doubt on his ability to pay probation costs. Although appellant told the court on May 22, 2000, that he could pay “the fine” because he had just started working, the court did not ask appellant about his earnings, the number of hours worked each week, or the amount of his living expenses. At a minimum, appellant’s statements that he had worked at the job for only two weeks, and that it might be work of a temporary nature, should have caused the court to question appellant’s proclamation of his ability to pay. Moreover, appellant’s reference to paying “the fine” may have been addressed to the restitution fine, rather than the costs of probation and service charges.
Penal Code section 1203.1b does not specify the procedure a triаl court should follow if it determines a defendant is unable to pay any part of his probation costs. The obvious implication from the language of Penal Code section 1203.1b, subdivision (b)(2), however, is that the court should not order the defendant to pay any portion of the costs. This conclusion follows from the following language: “if the court determines that the defendant has the ability to pay all or part of the costs, the court shall set the
Given our disposition, we need not address appellant’s remaining contentions.
Disposition
The trial court’s order requiring appellant to pеrform community service in lieu of paying probation costs is stricken. The case is remanded to the trial court with direction to institute proceedings in accordance with Penal Code section 1203.1b, subdivision (b) to determine appellant’s ability to pay all or part of the costs of his probation and the amount of such payment. In all other respects, the judgment is affirmed.
Cooper, P. J., and Rubin, J., concurred.
Notes
The court arrived at the 139-hour figure by dividing $804 by $5.75 per hour. On appeal, the parties agree the court inadvertently changed the amount of probation costs from $840 to $804.
Appellant admits his probation was properly conditioned upon payment of the $200 restitution fine, which was part of the $840 total sought by the Probation Department. (Pen. Code, § 1202.4, subd. (m).)