Filed 1/23/14 P. v. Lobato CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

JOE NESTOR LOBATO, 

Defendant and Appellant. 

 H039453 

 (Santa Clara County 

 Super. Ct. No. C1242003) 

I. INTRODUCTION 

 After his motion to suppress evidence (Pen. Code, § 1538.5)1

 was denied, 

defendant Joe Nestor Lobato pleaded no contest to possession of methamphetamine 

(Health & Saf. Code, § 11377, subd. (a)) and being under the influence of 

methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The trial court suspended 

imposition of sentence and placed defendant on probation for two years. The court also 

ordered defendant to pay a probation supervision fee of up to $110 per month. 

 On appeal, defendant contends that the trial court erred in denying his motion to 

suppress evidence. He argues that he was detained without reasonable suspicion, in 

violation of the Fourth Amendment of the United States Constitution. Defendant also 

contests the probation supervision fee, claiming there was insufficient evidence of his 

 

1 Further unspecified statutory references are to the Penal Code. 
2

ability to pay the fee. He argues that trial counsel rendered ineffective assistance for 

failing to object to the probation supervision fee. As we will explain, we will reverse and 

remand the judgment so that the trial court may determine the defendant’s ability to pay 

the probation supervision fee. 

II. FACTUAL AND PROCEDURAL BACKGROUND2

 At 11:41 p.m. on August 11, 2012, Santa Clara Police Officers Erickson, Van 

Diemen, and Henry received a dispatch call reporting an incident at a residence on the 

700 block of Asbury in Santa Clara. The caller reported seeing someone with a flashlight 

in a neighbor’s backyard. The caller mentioned that the neighbors were away on 

vacation. The officers arrived near the reported location approximately 20 minutes after 

the dispatch call. Officer Erickson was in one patrol vehicle, and Officers Van Diemen 

and Henry followed in a second vehicle. 

 The officers traveled eastbound on a two-way residential street, one block from 

the 700 block of Asbury. As they approached a T-intersection, Officer Erickson saw a 

light coming towards him. Defendant was riding his bike northbound towards the Tintersection. The light was defendant’s bicycle light. Defendant was the only person 

Officer Erickson saw in the area that evening. 

 Officers Erickson and Van Diemen shined their vehicles’ spotlights on defendant. 

Defendant slowed down his bicycle and came to a stop 20 to 30 yards from the patrol 

vehicles. Officer Erickson parked his car in the T-intersection in the middle of street, and 

Officer Van Diemen parked directly behind him. Officer Erickson did not block 

defendant’s “direction of travel,” so defendant could have turned left or right at the Tintersection. 

 All three officers got out of their cars, and they walked quickly towards defendant. 

As the officers approached defendant, they observed that he was very nervous and 

 2 The factual background is based on the transcript from the preliminary 

hearing/motion to suppress. 
3

sweating profusely. Officer Van Diemen, who was qualified as an expert in identifying 

persons under the influence of methamphetamine, noticed “almost immediately” that 

defendant displayed objective symptoms of being under the influence. 

 Officer Erickson, who stood about 10 feet away, asked defendant if he lived in that 

area. Defendant replied that he did not live in that immediate area, but he was heading 

home. Defendant indicated that he lived a few blocks away. Officer Erickson then 

explained that the officers were investigating a call about a prowler, and he asked 

defendant for his identification. Defendant provided his identification, and Officer 

Erickson checked to see if defendant had any warrants. 

 Officer Erickson asked defendant if he had anything illegal on him. Defendant 

replied “ ‘no.’ ” Officer Erickson then asked if he could search defendant. Defendant 

asked “ ‘why?’ ” Officer Erickson explained that he was looking for contraband or 

weapons. Defendant asked what would happen if he did not consent to a search. Officer 

Erickson responded that he was asking for permission to search, but if defendant did not 

consent and Officer Erickson was able to determine another lawful reason to search, then 

the officer would do so. Defendant replied, “ ‘Okay, then. But I have stuff on me.’ ” 

Officer Van Diemen asked what defendant meant by “ ‘stuff,’ ” and defendant said he 

had methamphetamine on him. 

 Officer Van Diemen placed defendant in handcuffs and searched him. During the 

search, Officer Van Diemen found a small baggie containing a clear crystal-like 

substance in defendant’s pants pocket. The substance was later tested and identified as 

methamphetamine. 

 On September 28, 2012, the People filed a complaint charging defendant with 

possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and being 

under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). On 

December 21, 2012, defendant filed a motion to suppress the evidence relating to the 

search conducted on August 11, 2012, contending that the search was the result of an 
4

unlawful detention and arrest. The People filed opposition, arguing that the search was a 

result of a consensual encounter, and alternatively, that the officers had reasonable 

suspicion to detain defendant. 

 On January 9, 2013, the trial court held a hearing on the motion to suppress and 

denied the motion. On February 21, 2013, defendant filed a renewed motion to suppress 

pursuant to section 1538.5, subdivision (i). The court denied the motion on March 5, 

2013. After his renewed motion to suppress was denied, defendant pleaded no contest to 

possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and being 

under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The 

court found him eligible for Proposition 36 probation and referred him to the Department 

of Alcohol and Drug Services (DADS) for an assessment. 

 At the sentencing hearing on March 14, 2013, the trial court suspended imposition 

of sentence and placed defendant on probation for two years. The court ordered various 

fines and fees. One of the fees was a probation supervision fee that was not to exceed 

$110 per month. 

III. DISCUSSION 

A. Denial of the Motion to Suppress 

 Defendant contends the trial court erred by denying his motion to suppress. He 

argues that he was detained when the three officers, who were driving two separate cars, 

shined their spotlights on him, parked their cars in the middle of the street, “briskly” 

approached him, and then asked for his identification. Defendant contends that the 

officers did not have reasonable suspicion to detain him because they did not have a 

“ ‘particularized and objective basis’ for suspecting him of involvement in criminal 

activity.” 

 The Attorney General replies that the initial encounter between the officers and 

defendant was consensual. The officers “merely shined their spotlights on [defendant]”; 

“[t]he officers did not block [defendant]’s direction of travel”; defendant “voluntarily 
5

stopped riding his bicycle”; and the officers told defendant they were investigating a call 

and asked him questions, which defendant voluntarily answered. The Attorney General 

asserts that “[u]nder the totality of these circumstances, it is evident that until the search 

began, a reasonable person in [defendant’s] shoes would have felt free to decline to 

answer the officers’ questions and to end the encounter. Thus, there was no detention 

triggering Fourth Amendment scrutiny.” In the alternative, the Attorney General argues 

that the officers had reasonable suspicion to detain defendant. “[Defendant] was riding 

his bicycle with a light at midnight in an area where there had been a report of a prowler 

using a flashlight less than 20 minutes before the police spotted him”; Officer Van 

Diemen knew that bicycle lights are often detachable; defendant was the only person the 

officers saw in the area; defendant indicated he did not live in the area; and defendant 

was wearing dark clothing. “Based on the totality of the foregoing circumstances . . . the 

officers had reasonable suspicion to detain [defendant].” 

1. Proceedings Below 

a. Motion to Suppress

 In defendant’s written motion to suppress, he provided a summary of the facts, an 

allegation that he was searched without a warrant, and an assertion that it was the 

prosecution’s burden to justify the warrantless search. (See People v. Williams (1999) 

20 Cal.4th 119, 130 [“when the basis of a motion to suppress is a warrantless search or 

seizure, the requisite specificity is generally satisfied, in the first instance, if defendants 

simply assert the absence of a warrant and make a prima facie showing to support that 

assertion”].) Defendant argued that the officers’ identification of him and any evidence 

that resulted from the detention and arrest must be suppressed. 

 In opposition, the prosecutor argued that the officers’ initial contact with 

defendant was consensual. The prosecutor argued that after the officers shined their 

spotlight, “there was no additional overt action . . . that would transform this encounter 

into a detention.” Additionally, the prosecutor asserted that “[m]erely approaching 
6

Defendant and asking to speak with him does not constitute a seizure under the Fourth 

Amendment.” Alternatively, the prosecutor argued that the officers had reasonable 

suspicion to detain defendant based on the dispatch call they received about a prowler in 

the area carrying a flashlight, defendant’s dark clothing, and defendant’s bike light, 

which could have been detachable. 

 At the hearing on the motion to suppress, defendant highlighted that Officer Van 

Diemen used the words “ ‘stopped’ ” and “ ‘detained’ ” in the police report and in his 

testimony to describe the initial contact. Defendant asserted that this description of the 

incident showed that the officer subjectively believed that the initial contact was a 

detention, and he argued that the officer’s belief affected the way the officer interacted 

with defendant. Defendant also asserted that when the officers parked their cars in the 

middle of the street, they blocked his path. Additionally, defendant stated that 

“[s]potlights are indicators of detention. Officers approaching quickly, more than one 

officer, more than one police car and the physical taking of someone’s driver’s license or 

identification during that . . . warrants check are all indications of a detention.” 

 The prosecutor responded that “the fact that Officer Van Diem[e]n characterized it 

as a detention in his report is not dispositive.” The prosecutor also noted, “Officer 

Erickson specifically stated in his testimony that he was not blocking the defendant and 

that the defendant could have gone around him if he had kept traveling.” In addition, the 

prosecutor argued that the officers’ acts of shining their vehicle spotlights on defendant, 

walking towards him, and “simply ask[ing] questions of him” did not constitute a 

detention. 

 The trial court stated that “when the neighbor calls the police at midnight to 

report . . . a flashlight in his neighbor’s backyard, . . . he knows that flashlights at that 

hour must be something unusual. Otherwise, why call 9-1-1? . . . [¶] So I am going to 

deny the motion for this reason, although it’s fairly close. The detention or so-called 

detention, I don’t really think was a detention. The officers are investigating and they 
7

stop very far away from the defendant and he stops on his own.” The court noted the 

“white spotlights alone are not going to be enough. . . . [¶] On the other hand, even if he 

wasn’t detained, they do -- the only person in the area at midnight that can be used as a 

flashlight, which is [defendant].” [Sic.] “So I think they have an obligation to stop him, 

at least, and question him as to why he is in the area.” The court noted, “if [the officers] 

didn’t investigate, they would be derelict in their duties.” 

b. Renewed Motion to Suppress

 In defendant’s renewed motion to suppress, he argued, as he did in the original 

motion, that the initial contact was a detention and that the officers did not have 

reasonable suspicion. Defendant argued that the report of a prowler with a flashlight, 

alone, was “insufficient to establish that criminal activity was afoot.” Furthermore, 

defendant argued that even if the dispatch call was sufficient to establish reasonable 

suspicion of criminal activity, the detention was not justified because (1) there was no 

description about the possible suspect, (2) the initial contact occurred 20 minutes after the 

dispatch call was received, (3) the caller never mentioned a bike, and (4) defendant did 

not have a flashlight. 

 In opposition, the prosecutor first argued that the initial contact was consensual. 

Alternatively, the prosecutor argued that the officers had reasonable suspicion based on 

the totality of circumstances. The prosecutor asserted that even if there was an innocent 

explanation for the person with a flashlight, “the possibility of innocent explanations does 

not remove reasonable suspicion.” The prosecutor also noted that when the officers saw 

the light on defendant’s bicycle moving towards them, they could not tell whether it was 

a flashlight. Furthermore, defendant was the only person the officers saw near the area. 

 At the hearing on the renewed motion to suppress, the prosecutor called Officer 

Van Diemen to provide additional testimony about his experience with bicycle lights, his 

observations of defendant’s dark clothing, and his conversation with defendant in which 

defendant admitted using drugs earlier that day. Officer Van Diemen testified that 
8

bicycle lights are easily detachable and can be used as a flashlight. The officer also 

testified that defendant was wearing dark clothing that evening. Officer Van Diemen 

commented that dark clothing makes it easier for a criminal to remain undetected at 

night. 

 After hearing argument, the trial court denied the renewed motion to suppress. 

The court stated that it was “more than satisfied that the officers’ contact was consonant 

with the Fourth Amendment.” 

2. Standard of Review 

 “In ruling on a motion to suppress, the trial court must find the historical facts, 

select the rule of law, and apply it to the facts in order to determine whether the law as 

applied has been violated. [Citation.] . . . We review the court’s resolution of the factual 

inquiry under the deferential substantial evidence standard. The ruling on whether the 

applicable law applies to the facts is a mixed question of law and fact that is subject to 

independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.) 

3. Analysis 

 “Police contacts with individuals may be placed into three broad categories 

ranging from the least to the most intrusive: consensual encounters that result in no 

restraint of liberty whatsoever; detentions, which are seizures of an individual that are 

strictly limited in duration, scope, and purpose; and formal arrests or comparable 

restraints on an individual’s liberty. [Citations.] Our present inquiry concerns the 

distinction between consensual encounters and detentions. Consensual encounters do not 

trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no 

articulable suspicion that the person has committed or is about to commit a crime. 

[Citation.] 

 “. . . The United States Supreme Court has made it clear that a detention does not 

occur when a police officer merely approaches an individual on the street and asks a few 

questions. [Citation.] As long as a reasonable person would feel free to disregard the 
9

police and go about his or her business, the encounter is consensual and no reasonable 

suspicion is required on the part of the officer. Only when the officer, by means of 

physical force or show of authority, in some manner restrains the individual’s liberty, 

does a seizure occur. [Citations.] ‘[I]n order to determine whether a particular encounter 

constitutes a seizure, a court must consider all the circumstances surrounding the 

encounter to determine whether the police conduct would have communicated to a 

reasonable person that the person was not free to decline the officers’ requests or 

otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of 

police conduct as a whole, rather than emphasizing particular details of that conduct in 

isolation. [Citation.] Circumstances establishing a seizure might include any of the 

following: the presence of several officers, an officer’s display of a weapon, some 

physical touching of the person, or the use of language or of a tone of voice indicating 

that compliance with the officer’s request might be compelled. [Citations.] The officer’s 

uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant 

in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. 

[Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).) 

 Mere police questioning does not amount to an involuntary detention. (United 

States v. Drayton (2002) 536 U.S. 194, 200-201 (Drayton).) “Where a consensual 

encounter has been found, police may inquire into the contents of pockets [citation]; ask 

for identification [citation]; or request the citizen to submit to a search [citation]. It is not 

the nature of the question or request made by the authorities, but rather the manner or 

mode in which it is put to the citizen that guides us in deciding whether compliance was 

voluntary or not.” (People v. Franklin (1987) 192 Cal.App.3d 935, 941 (Franklin).) 

 Defendant contends his case is analogous to People v. Garry (2007) 

156 Cal.App.4th 1100 (Garry). In Garry, the police officer was in his patrol car in a 

“high-crime, high-drug area.” (Id. at p. 1103.) For a few seconds, the officer watched 

the defendant standing next to a parked car. (Id. at pp. 1103-1104.) After illuminating 
10

the defendant with the spotlight on the patrol car, the officer exited his vehicle and 

walked so “ ‘briskly’ ” that he traveled 35 feet in “ ‘two and a half, three seconds.’ ” (Id. 

at p. 1111.) The officer disregarded the defendant’s statement that he was standing 

outside his own home, and the officer immediately asked the defendant whether he was 

on probation or parole. (Id. at pp. 1111-1112.) The Court of Appeal determined that the 

police officer’s conduct “taken as a whole, would be very intimidating to any reasonable 

person.” (Id. at p. 1111.) “[The officer’s] actions set an unmistakable ‘tone,’ albeit 

largely through nonverbal means, ‘indicating that compliance with the officer’s request 

might be compelled.’ [Citation.]” (Id. at p. 1112.) 

 The record here reflects that the tone set by the officers during the encounter with 

defendant was much different than that set by the “aggressive” and “intimidating” actions 

of the officer, as described by the court in Garry. (Garry, supra, 156 Cal.App.4th at 

p. 1112.) In this case, Officers Erickson, Van Diemen, and Henry were at an intersection 

when they saw defendant riding his bicycle towards the intersection. The officers, who 

were in two patrol vehicles, shined their vehicles’ spotlights on him and parked their cars 

one behind the other. Defendant voluntarily slowed down and stopped his bicycle 20 to 

30 yards away from the officers. All three officers then got out of their cars and walked 

quickly towards defendant. During this initial contact, the officers did not use their 

emergency lights or give any commands. Furthermore, though the officers parked their 

cars in a traffic lane, they did not obstruct defendant’s path. The officers also did not 

have their weapons drawn, and they stood about 10 feet away from defendant to talk to 

him. 

 Officer Erickson engaged in conversation with defendant, asking defendant 

whether he lived in the area and explaining that the officers were investigating a call 

about a prowler in the neighborhood. Officer Erickson then asked to see identification 

and ran a warrant check. Unlike Garry, Officer Erickson did not immediately ask 

whether defendant was on probation or parole. Nor did he immediately ask to run a 
11

warrant check. Additionally, nothing in the record indicates that Officer Erickson used 

an authoritative tone or engaged in any nonverbal, coercive conduct in questioning 

defendant. Where cooperation was not induced by coercive means, merely approaching a 

person and asking questions does not amount to an involuntary detention. (Drayton, 

supra, 536 U.S. at pp. 200-201; Manuel G., supra, 16 Cal.4th at p. 821.) Further, asking 

defendant for identification and running a warrant check did not turn the encounter into a 

detention. (Drayton, supra, 536 U.S. at p. 201; Franklin, supra, 192 Cal.App.3d at 

p. 941.) 

 Although three officers approached defendant, the presence of several officers 

does not, by itself, transform an encounter into a detention. (See Drayton, supra, 

536 U.S. at p. 205 [a second officer’s presence during an encounter on a bus did not turn 

an encounter into a seizure]; INS v. Delgado (1984) 466 U.S. 210, 219 [presence of 

several agents by exits posed “no reasonable threat of detention”].) In this case, the 

officers did not have their weapons drawn, nor did they engage in any coercive conduct 

that would make a reasonable person feel that he or she was not free to leave. (Manuel 

G., supra, 16 Cal.4th at p. 821.) Rather, the record reflects that Officer Erickson asked 

defendant most of the questions while the other two officers stood next to Officer 

Erickson. 

 In short, the circumstances here do not show that the officers demonstrated a show 

of authority such that a reasonable person in defendant’s situation would not have felt 

free to leave. Thus, the initial encounter was not a detention. 

 Even assuming that the initial contact was a detention, the officers had reasonable 

suspicion to detain defendant. A detention is reasonable under the Fourth Amendment 

when the detaining officer can point to specific articulable facts which, considered in 

light of the totality of the circumstances, provide some objective manifestation that the 

person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 

224, 231; see also In re Tony C. (1978) 21 Cal.3d 888, 893.) The reasonable suspicion 
12

that justifies a detention is simply a particularized and objective basis for suspecting the 

person stopped of criminal activity. (Ornelas v. United States (1996) 517 U.S. 690, 696.) 

 “Reasonable suspicion is a lesser standard than probable cause . . . . But to be 

reasonable, the officer’s suspicion must be supported by some specific, articulable facts 

that are ‘reasonably “consistent with criminal activity.” ’ [Citation.] The officer’s 

subjective suspicion must be objectively reasonable, and ‘an investigative stop or 

detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the 

officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a 

reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police 

officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” 

[Citation.]’ [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083 (Wells); see also 

People v. Glaser (1995) 11 Cal.4th 354, 363.) 

 In this case, the officers, who were one block from the location where someone 

had seen a prowler with a flashlight, saw defendant riding a bicycle with a bicycle light. 

Officer Van Diemen knew from experience that bicycle lights are often detachable and 

can be used as flashlights. Defendant was also the only person that the officers saw in the 

area, and the encounter occurred at midnight, which was only 20 minutes after the 

dispatch call. (Cf. People v. Conway (1994) 25 Cal.App.4th 385, 390 [officer had 

reasonable suspicion to detain a car’s occupants where, shortly after receiving a report of 

a burglary, the officer saw the car leaving the area of the reported burglary].) Defendant 

was also wearing dark clothing, which Officer Van Diemen knew to be something a 

criminal would wear to escape detection. Under the totality of the circumstances, we find 

that the officers’ decision to walk up to defendant was based on “articulable facts that are 

‘reasonably “consistent with criminal activity,” ’ ” and was not “predicated on mere 

curiosity, rumor, or hunch.” (Wells, supra, 38 Cal.4th at p. 1083). Once the officers 

walked up to defendant, they noticed “almost immediately” that he was nervous and 

sweating profusely, which were objective symptoms of being under the influence of 
13

methamphetamine. The officers were thus justified in questioning defendant and 

requesting identification. 

 Because the officers acted in an objectively reasonable manner in contacting 

defendant, we conclude that the trial court did not err in denying the motion to suppress. 

(Wells, supra, 38 Cal.4th at p. 1083.) 

B. The Probation Supervision Fee 

 When defendant pleaded guilty, he signed a written plea form, which stated that he 

could be ordered to pay various fines and fees. One provision of the plea form stated, 

“Depending upon my ability to pay, I will also be required to pay for the costs of 

probation supervision ($110 a month) . . . .” During the change of plea hearing, 

defendant expressed concern about a possible $10 drug testing fee. He stated that he 

“might have trouble with the global fee for testing.” Thereafter, the trial court released 

defendant on his own recognizance and referred him to DADS for a Proposition 36 

assessment. 

 Nothing in the record indicates that a probation report was filed prior to the 

sentencing hearing. At sentencing, the trial court suspended imposition of sentence and 

placed defendant on formal probation for two years. The court ordered him to pay 

various fines and fees, including a probation supervision fee “not to exceed 110 per 

month.” Defendant agreed to all the terms and conditions of probation without objection. 

 Defendant contends that the probation supervision fee should be stricken because 

there was insufficient evidence of his ability to pay the fee. Although defendant 

acknowledges that he did not object in the trial court, he relies on People v. Pacheco 

(2010) 187 Cal.App.4th 1392, disapproved by People v. McCullough (2013) 56 Cal.4th 

589 (McCullough), to argue that his claim has not been forfeited. Defendant alternatively 

argues that trial counsel was ineffective for failing to object to the fee. 

 Relying on McCullough, supra, 56 Cal.4th 589, the Attorney General contends 

that defendant has forfeited his claim of insufficiency of the evidence of his ability to pay 
14

the probation supervision fee3

. (See also People v. Snow (2013) 219 Cal.App.4th 1148, 

1151; People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis).) The Attorney General 

further argues that the trial court made an implied finding that defendant had the ability to 

pay. Additionally, the Attorney General contends that trial counsel was not ineffective 

for failing to object to the fee. 

 We observe that this case presents a unique circumstance as nothing in the record 

indicates a probation report was filed, and the record contains no information about 

defendant’s financial circumstances other than defendant’s concern about a $10 drug 

testing fee. (Cf. Valtakis, supra, 105 Cal.App.4th at p. 1069.) 

 Section 1203.1b sets forth a process that must be followed before the trial court 

may impose a probation supervision fee. First, the court must order the defendant to 

report to the probation officer, who will then make a determination of the defendant’s 

ability to pay. (§ 1203.1b, subd. (a).) After the probation officer determines the amount 

the defendant may be able to pay, the probation officer must inform the defendant that he 

or she is entitled to a hearing, during which the court will make a determination of the 

defendant’s ability to pay and the payment amount. (§ 1203.1b, subd. (a).) A defendant 

may waive his or her right to a hearing, but this waiver must be made knowingly and 

intelligently. (§ 1203.1b, subd. (a).) If no waiver is given, the probation officer must 

refer the matter back to the trial court, and the trial court will make a determination of 

defendant’s ability to pay. (§ 1203.1b, subd. (b).) 

 Since the record on appeal does not include a probation report or any information 

about defendant’s financial circumstances, we conclude that this matter must be 

 3 The California Supreme Court is currently considering the issue of whether a 

defendant who fails to object to an order for payment of probation supervision fees 

forfeits a claim that the trial court erred in failing to make a finding of an ability to pay. 

(People v. Aguilar (2013) 219 Cal.App.4th 1094, review granted Nov. 26, 2013, S213571 

and People v. Trujillo, review granted Nov. 26, 2013, S213687 [nonpub. opn.].) 
15

remanded to the trial court for compliance with the statute. Thus, we need not reach the 

issues of waiver, ineffective assistance of counsel, and defendant’s ability to pay. 

IV.DISPOSITION 

 The judgment is reversed and the matter is remanded to the trial court for the 

limited purpose of allowing the trial court to follow the statutory procedure in section 

1203.1b before imposing a probation supervision fee. 

 ___________________________________________ 

 BAMATTRE-MANOUKIAN, ACTING P.J. 

WE CONCUR: 

__________________________ 

MÁRQUEZ, J. 

__________________________ 

GROVER, J.