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Failure to Object--Ability to Pay Claim

Does the failure to object to an order for payment of a presentence investigation fee and/or an order for payment of probation supervision fees forfeit a claim that the trial court erred in failing to make a finding of the defendant's ability to pay the amount in question?

Held: Appellate forfeiture rule applies where defendant fails to object to trial court's order to pay costs of probation supervision and presentence investigation fees. Trujillo was found guilty of receiving stolen property. She was referred to the probation department for a presentence report, but refused to talk with the probation officer. Incident to a grant of probation, the court imposed, without objection, a fee for the presentence investigation report and a probation supervision fee (Pen. Code, 1203.1b). On appeal, Trujillo challenged the fees. The Court of Appeal reversed. The Supreme Court granted review. Held: Reversed. When a defendant is granted probation or a conditional sentence, the probation officer must determine whether the defendant has the ability to pay all or part of the costs of the presentence investigation and probation supervision (Pen. Code, 1203.1b). Absent a waiver of a hearing, the matter is referred to the trial court for hearing. However, defendant bears the burden of asserting noncompliance with the statutory requirements as a prerequisite to challenging the court's order for payment on appeal. As the statute contemplates a waiver will take place off the record, it follows that defense counsel, and not the trial court, is in the best position to ascertain whether the defendant has knowingly and intelligently waived her right to a hearing. The defendant is not without recourse, as there is continuing jurisdiction for the sentencing court and the probation officer to entertain requests to modify a payment order during the probationary/conditional sentence period (Pen. Code, 1203.1b, subds. (c), (f)). (People v. Trujillo (2015) 60 Cal.4th 850 (S213687).) This case was decided on 1/12/2015.

Updated: 1/12/2015

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