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Name: People v. Neal
Case #: A153101
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 11/30/2018
Summary

Where defendant objected to probation officer assessing his ability to pay the cost of probation services, trial court erred in imposing probation supervision fee without first determining defendant’s ability to pay. Neal was convicted of possession of a firearm by an ex-felon and placed on probation. At his sentencing hearing, he objected to the recommendation in the probation officer’s sentencing report that he pay for the cost of probation services as determined by the probation officer, not to exceed $75 per month. The trial court declined to consider Neal’s ability to pay or the amount to be paid, stating that the probation department would do an ability to pay analysis and that it was not for the court to decide. Neal appealed, arguing that the probation supervision fee he was ordered to pay was improperly imposed by the trial court. Held: Portion of order of probation requiring Neal to pay for the cost of probation services as determined by the probation was set aside and matter remanded for the trial court to determine Neal’s ability to pay and the amount, if any, to be paid. Penal Code section 1203.1b provides that, where a defendant is convicted and is the subject of any preplea or presentence report, the probation officer shall determine the reasonable cost of probation supervision and the defendant’s ability to pay. The probation officer must inform the defendant that the defendant is entitled to a hearing (including the right to counsel) in which the court shall make these determinations. Any waiver of that right must be knowing and intelligent. Where there is no waiver, the probation officer must refer the matter to the court for a hearing. It appears that none of those steps were followed in this case. The matter must be remanded for the trial court to hold such a hearing. [Editor’s Note: In a footnote, the court concluded Neal waived his challenge to imposition of a probation report fee of $176 pursuant to section 1203.1b by failing to also object to this fee in the trial court. (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 1073–1075.)]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A153101.PDF