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Filed 8/28/15 P. v. Monteer CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. RICKY MONTEER, Defendant and Appellant. A140297
(Contra Costa County Super. Ct. No. 41768571)

After d efendant Ricky Monteer pleaded guilty to felony possession of methamphetamine (Health & Saf. Code
, § 11377, subd. (a) ), t he trial court placed him on three years ’ formal probation and imp osed various fines and fees. On appeal, d efendant
contends the court improperly delegated to the probation department the responsibility for determining the amount of the probation supervision fee (Pen. Code
, § 1203.1b) and erred in imposing a criminal justice administration (booking) fee (Gov. Code
, § 29550, subd. (d)(2)) and attorney fees (Pen. Code
, § 987.8) without determining his ability to

pay

. The California Supreme Court has recently addressed these fees in a trilogy of

cases: Peopl e v. Aguilar (2015) 60 Cal.4th 862 ( Aguilar ), People v. Trujillo (2015)
60 Cal.4th 850 ( Tru

j ill o ) and People v. McCullough (2013) 56 Cal.4th 589 ( McCullough ). In light of these cases
, we conclude defendant forfeited any complaint
about the referral of the probation supervision fee because he failed to raise it in the trial court. He did, however, object to the impositi on of the booking and attorney fees on ability to pay grounds. He therefore preserved the issue s for appeal, and we now reverse2

in light o f the Supreme Court’s clear directive that a trial court must make an ability to pay determination before imposing an unconditional payment obligation.
B ACKGROUND We recite only the facts relevant to the fee issues defendant raises on appeal.
At t he outset of what became the sentencing hearing
, counsel advis ed the trial court that the parties had reached a negotiated disposition of a probation revocation
matter and the i n stant criminal case. Defense counsel recite d the principal terms of the

a greemen t and then objected to the imposition of any fines and fees the court could waive on the ground defendant lacked ability to pay. The court responded, “Well, what I’ll do is I’ll go through them in the sentencing, and then tell me which actual ones you obj ect to, and then my understanding is the probation department is doing the task of gathering the information, making a recommendation just like they do for attorney’s fees , we’ll

— whoever does it for attorney’s fees, same process, and then it goes back to a judge and he can ask for a hearing if he doesn’t agree with what they are.” The court then took defendant’s plea, suspended imposition of sentence, and placed defendant on three years of formal probation subject to numerous terms and
condition s, includ ing that he serve 180 day s in the county jail term with credit for time
served

. The court additionally imposed numerous fines and fees . As to the booking fee,
the court stated: “There is a criminal justice administrati on fee of $564. Contact Court
C ol lections and Alliance One in order to set up a payment plan for any of these fees and fines, and do that as s oon as you’re able to.” As to probation costs, the court stated:

“ T he cost of probation services to be determined by the probation of ficer.” As to attorney fees, the court stated: “As far as attorney’s fees for the Public Defender, this is

pre

- preliminary hearing, so $200 is assessed. That paperwork will tell you the process to go through if, in fact, you want to have a hearing on a bility to pay on that.” The court then returned to defense counsel’s objection to the fees, asking “as to those terms and fees and fines, which specific ones are you objecting to?” Counsel replied: “Well, I’m objecting to the 280 [restitution and probation revocat ion fine3

amounts ], the 564 [booking fee], and the $200 of attorney’s fees based on Mr. Monteer not having a present ability to pay.” Counsel made no objection to the referral of the probation supervision fee

. Turning to defendant, the court engaged in the following colloquy:

“ The Court: As far as the 564, Mr. Monteer, do you have a job waiting for you when you get out?

“ The Defendant: No, I don’t. N ot currently.

“ The Court: When was the last time you worked?

“ The Defendant: Uh, long time ago.

“ The Court: Okay.

“ The Defendant: I’ve been doing time since I was 18 years old, ma’am

. “ The Court: Not a lot of expenses then.

“ The Defendant: Well.

. . “ The Court: Okay. Because you do have, it sounds like, a complicated history, I’m going to leave that up to Probation then. I’ll refer you for all fees and fines over to Probation to determine ability to pay, and

—
“ The Defendant: Thank you.

“ The Court:

— you are ordered to appear before the probation officer within 20 days of your release from custody s o that the probation officer can inquire into your ability to pay these fees. [¶]

. . . [¶]

“ The Court: Okay. If you disagree with the probation officer’s determination of your ability to pay, you have the right to a hearing before this Court. [¶] So do you understand the terms?

“ The Defendant: Yes, ma’am.

“ The Court: Do you accept them?

“ The Defendant: Yes, ma’am.

“ The Court: They will be the order of this Court. ”

The felony order of probation and clerk’s minutes reflect what transpired at the hearing

— that defendant must pay a fee for “Probation services as determined by Probation” and must also pay a $ 564 booking fee and $200 in attorney fee s , the latter not being a condition of probation but separately ordered

. The felony order of probation
further notes under “Additional Terms” of probation, that defendant is to “report to C.P.O. within 5 days of release from custody. ” The clerk’s minutes state in the “waiver/plea ” section (not the “fines/fees” section) that de fendant is to “ report to C.P.O.4

W/I 5 days of release from jail. As to fines and fees must report to CPO W/I 20 days from release from jail.”
D ISCUSSION Probation Supervision Fee
Penal Code section 12 03.1b g overn s probation supervision fees and authorizes the
trial court to order a defendant to appear before the probation officer for a determination
of both the amount and manner of payments based on the defendant ’s ability to pay. ( Pen. Code, § 1203.1b, subd. (a).) Although the issue of forfe iture for failing to object in the trial court to the imposition of probation fees under Penal Code section 1203.1b was unsettled at the time the parties submitted their briefs, the Supreme Court recently held in Trujillo and Aguilar
that the forfeiture ru le applies. ( Trujillo
, supra , 60 Cal.4th at p. 858 [“ N otwithstanding the statute’s procedural requirements, we believe to place the burden on the defendant to assert noncompliance with [Penal Code] section 1203.1b in the trial court as a prerequisite to c hallenging the imposition of probation costs on appeal is appropriate

. ” ]; Aguilar, supra, 60 Cal. 4 th at pp. 867

– 868 [apply ing forfeiture rule “is especially appropriate” under Penal Code section 1203.1b, given the multiple chances to object during the statutory procedure for determining the appropriate amount of fees].) Since defendant failed to voice any objection to the referral of probation fees to the probation department, he has, under Trujillo and Aguilar
, forfeited any complaint
about the refer ral on appeal. Booking Fee Government Code sections 29550, 29550.1, and 29550.2 authorize the imposition of a criminal justice administration fee

— a “ booking fee ”

— on an arrestee who is ultimately convicted

. “Which section applies to a given defendant depe nds on which governmental entity has arrested a defendant before transporting him or her to a county jail.” ( McCullough , supra, 56 Cal.4th at p. 592.) T he record reflects defendant was arrested by the Contra Costa County Sheriff’s Department

. Accordingl y, although the trial court did not recite the statutory authority for the booking fee it imposed , the parties5

agree Government Code section 29550, applicable when the arresting agency is a county officer, applies in this case.
Government Code s ection 2 9550, subdivision (d)(2)
, provides : “ T he court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administration fee, including applicable
overhead costs.” (Gov. Code
, § 29550, subd. (d)(2).)
In McCullough , the Supreme Court not only stated the statutory language clearly afforded the defendant “the right to a determination of his ability to pay the booking fee before the court order[s] payment” ( McCullough, supra , 56 Cal.4th at pp. 592

– 593,
italics added), it further stated its forfeiture ruling was supported by other statutes “where the Legislature has similarly required a court to determine if a defendant is able to pay a
fee before the court ma y impose it.” ( Id. at p. 598.)
The Supreme Court also explained in McCullough that when a defendant challenges a booking fee on appeal on the ground of inability to pay, he or she is advancing a sufficiency of the evidence argument. ( See McCullough, s upra , 56 Cal.4th at p p

. 59 1 [“Defendant contends that he is entitled to challenge this fee order for sufficiency of the evidence for the first time on appeal.”], 597 [“because a court’s imposition of a booking fee is confined to factual determinations, a d efendant who fails to challenge the sufficiency of the evidence at the proceeding when the fee is imposed may not raise the challenge on appeal”].) When a trial court orders a defendant to pay a specific booking fee and only thereafter refers him or her t o probation for an ability to
pay determination, there is, of course, no evidentiary record undergirding the court’s fee
order. Thus, the clear import of McCullough is that when a defendant does object to the imposition of a booking fee, there must be s ome evidentiary basis before the trial court supporting an ability to pay determination (either express or implied)

— provided, for example, by a sentencing report

— before the court orders a defendant to pay a specified booking fee.6

Here, while th e trial court began to make an ability to pay inquiry, it stopped when it sounded like defendant had “a complicated history” and referred him to the probation department. Accordingly, when the court ordered defendant to pay the $564 booking fee,
it had ma de no ability to pay determination, and instead, it had referred defendant for an
after

- the

- fact examination of his circumstances and a possible adjustment of the imposed
fee. 1 The booking fee must therefore be stricken. ( See Pacheco , supra, 187 Cal.App. 4 th at pp. 1399

– 1400 [because trial court imposed specific booking fee without making ability to pay determination, no substantial evidence supported fee order; referral of
defendant to the “ ‘ Department of Revenue for a determination of his ability to pay
certain fines and fees ’ ” not sufficient to comply with statute].)
A ttorney Fee s Penal Code section 987.8 authorizes the trial court to order a defendant to appear before a county officer to make an inquiry into the defendant’s ability to pay all or a portion of legal assistance provided. ( Pen. Code, § 987.8, subd. (b).) Here, however, the trial court ordered defendant to pay a specific amount of fees

— $200

— before it re ferred
him to the probation officer for a n ability to pay de termination. For essentially the same reasons discussed above in connection with the booking fee, the trial court erred in ordering defendant to pay the specified fee before any ability to pay determination was
made. The Supreme Court s pecifically discus sed attorney fees in Aguilar

. In fact, what
occurred in the trial court in Aguilar is similar to what occurred here. In Aguilar , the trial

1 The order in this case is an unequivocal directive that defendant pay a $564 booking fee and cannot reasonably be interpreted as a mere “conditional” order imposing no payment obligation on defendant. (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1 396 ( Pacheco ), disapproved on other grounds in McCullough, supra, 56 Cal.4th at p. 599 [observing specific fee amounts were not “made conditional” on a subsequent ability to pay determination by the Department of Revenue]; and Trujillo, supra, 60 Cal.4th a t p. 856, fn. 3 [whether trial court “actually imposed specific presentence investigation and probation supervision fees” might be “debatable” because defendant was ordered to pay fees “not to exceed” specified amounts; court nevertheless “assume[d] the co urt’s order fixed the challenged fees”].)7

court imposed numerous fines and fees of specific amounts, including $500 in appointed trial counsel fees. (

Aguila r, supra, 60 Cal.4 th at p. 865 .) The court then stated: “ ‘Many of these fees are going to be based on his ability to pay. When he contacts the probation office, he’ll fill out fiscal financial assessment form [ sic ] and he can talk with the probation de puty about his ability to pay these various fees.’ ” ( Id. at p. 865.) Had this
after

- the

- fact ability to pay determination been an appropriate way to proceed, the Supreme Court would not, of course, have needed to address the issue of forfeiture of

error

. The c ourt went on to hold “that defendant’s failure to challenge the fees in the trial court precludes him from doing so on appeal.” ( Id. at p. 864.) Indeed, it conclude d applying the forfeiture rule was “especially appropriate” in the case before it because the defendant had had two opportunities to object to the fees

— at the sentencing hearing
when the trial court “announced the fees it was imposing ” and thereafter at the anticipated meeting with the probation officer. ( Id. at pp. 867

– 868
, italics ad ded .)
Since the trial court here ordered def endant to pay $200 in attorney fees before any ability to pay determination was made and defendant did object , the fee order is not supported by substantial evidence and, like the booking fee, must be stricken. 2

D ISPOSITION The judgment is reversed as to the $564 criminal justice administration (booking)
fee and the $200 in attorney fees , and those fees are ordered stricken. In all other respects, the judgment is affirmed.

2 As discussed in footnote 1, supra , the trial court’s order that defendant pay $200 in defense attorney fees cannot reasonably be read as a mere “conditional” order. Rather, it is a specific directive that the c ourt indicated might be revisited after

- the

- fact, once defendant met with the probation department and if he disagreed with its assessment as to his ability to pay.8 _________________________ Banke, J.

We concur:

_________________________ Margulies, Acting P. J.

_________________________ Dondero, J.