People v. Fandinola

• Decision Date: 10 December 2013
• Docket Number: C071256
• Citation: 221 Cal.App.4th 1415,165 Cal.Rptr.3d 383
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymond Placer FANDINOLA, Defendant and Appellant.

221 Cal.App.4th 1415

165 Cal.Rptr.3d 383

The PEOPLE, Plaintiff and Respondent,

v.Raymond Placer FANDINOLA, Defendant and Appellant.

C071256

Court of Appeal, Third District, California.

Filed December 10, 2013

Certified for Partial Publication.^*

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 310.

APPEAL from a judgment of the Superior Court of Sacramento County, John P. Winn, Judge. Affirmed as modified. (Super. Ct. Nos. 12F02342, 12F02592)

William D. Farber, San Rafael, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant Attorneys General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

HOCH, J.

Defendant Raymond Placer Fandinola entered into a negotiated disposition of two superior court cases. In case No. 12F02342, defendant pled no contest to one count of second degree burglary, one count of possession of a check or money order with the intent to defraud, and two counts of possession and use of personal identity information. Six related counts were dismissed. In case No. 12F02592, four theft related counts were dismissed.

Defendant was sentenced to serve an aggregate term of five years imprisonment (three years (upper term) for the burglary, plus three consecutive terms of eight months (one-third the middle term) for the remaining counts). Pursuant to Penal Code section 1170, subdivision (h),¹ added to California's sentencing scheme by “the 2011 Realignment Legislation addressing public safety” (realignment legislation) (Stats.2011, ch. 15, §§ 1, 450), and thereafter amended to its current form (Stats.2011, ch. 361, § 6.7; Stats.2012, ch. 43, § 27), the trial court ordered defendant to serve the first three years of his sentence in the county jail and the remaining two years on mandatory supervision. ( § 1170, subd. (h)(5)(B).) Among other orders, the trial court imposed a probation supervision fee of $46 per month and a urine testing fee of $25 per test, ordering defendant to “report to the Department of Revenue Recovery” upon his release from the county jail “for a financial evaluation and recommendation of ability to pay.” As the trial court explained to defendant at sentencing: “[T]hat's going to be something you have to deal with when you get out. If you cannot pay the fines, you can work with probation, the Department of Revenue and Recovery to modify the fines.”

On appeal, defendant contends: (1) the trial court erred by failing to determine his ability to pay before imposing the probation supervision and urine testing fees; and (2) the trial court was not authorized to impose the urine testing fee because defendant was not convicted of any drug-related offense. We directed the parties to address in supplemental letter briefs whether section 1203.1b, or any other statutory provision, authorized imposition of the probation supervision fee in this case, where defendant was not granted probation nor given a conditional sentence, but was instead sentenced to serve a portion of his term on mandatory supervision pursuant to section 1170, subdivision (h). We conclude the answer is no. As we explain, the Legislature has given the trial court the authority to order a defendant to pay the reasonable cost of probation supervision “in any case in which a defendant is granted probation or given a conditional sentence.” (§ 1203.1, subd. (a).) And while section 1170, subdivision (h), authorizes the trial court to suspend execution of a concluding portion of a defendant's term, “during which time the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation” (§ 1170, subd. (h)(5)(B)(i)), we conclude this provision does not authorize the trial court to order a defendant to pay the cost of such supervision. Thus, regardless of whether the trial court failed to determine defendant's ability to pay, the order requiring defendant to pay the cost of probation supervision is unauthorized and must be stricken.

We also directed the parties to address in their supplemental briefs the question of whether the trial court possessed the authority to order defendant to pay the cost of urine testing, assuming such cost could not be imposed under section 1203.1ab (because defendant was not convicted of any offense involving the unlawful possession, use, sale, or other furnishing of any controlled substance) or section 1210.1 (because defendant was not convicted of a nonviolent drug possession offense). Defendant argues, as he did in his initial briefing on appeal, the trial court had no authority to order him to undergo urine testing, and therefore no authority to order him to pay the cost of such testing. The Attorney General argues the broad authority of a trial court to impose reasonable probation conditions under section 1203.1, subdivision (j), authorizes both an order to submit to urine testing and an order to pay for such testing. Read in conjunction with section 1170, subdivision (h)(5)(B), argues the Attorney General, such authority should also extend to defendant's case even though he was not granted probation, but Cal.Rptr.3d was instead sentenced to serve the concluding portion of his term on mandatory supervision. We need not decide whether the trial court had the authority to order defendant to submit to urine testing under section 1203.1, subdivision (j), because the only authority to impose the costs of such testing is found in section 1203.1b, which we hold to be inapplicable to defendant's placement on mandatory supervision.² We therefore modify the judgment to strike this order as well.

FACTS

We dispense with a detailed recitation of the facts as they are unnecessary to our resolution of this appeal. Suffice it to say that between February 21 and March 12, 2012, defendant entered a commercial building occupied by a major retailer with the intent to commit larceny or any felony therein. During the same time period, he willfully and unlawfully possessed a completed check, money order, traveler's check, warrant, or county order with the intent to utter, pass, or facilitate the utterance and passage of the same in order to defraud a person. He also willfully and unlawfully obtained the personal identifying information of two victims, without their authorization or consent, and used the information to obtain credit, goods, services, or information.

DISCUSSION

IProbation Supervision Fee

Does section 1203.1b, or any other statutory provision, authorize imposition of the probation supervision fee in this case, where defendant was not granted probation nor given a conditional sentence, but was instead sentenced to serve a portion of his term on mandatory supervision pursuant to section 1170, subdivision (h)? We conclude the answer is no.

A.Additional Background

After defendant entered his plea, defense counsel waived referral to the probation department. Noting the probation department had conducted “no actual interview of the client,” defense counsel objected to several “post conviction release conditions.” Counsel objected that defendant “will be in custody for the next year and a half. His ability to pay determination is one year from today's date. And, therefore, he has no ability to pay within that one year window because he will be in custody. [¶] I'm objecting to page five, probation supervision costs of $46 monthly.... I'm going to object based on no ability to pay from one year from today's date.” Counsel further objected to the order to report to the Sacramento County Department of Revenue Recovery (Revenue Recovery).

After ruling on defense counsel's objections to various release conditions, the trial court stated: “Then regarding all of the other fines that there was an objection to, we are basically premature.... You're entitled to half time. [¶] So when you get out—I don't know what your financial situation will be when you get out. So I'm deleting a couple of fines. But the objections that your attorney has made are noted. But that's going to be something you have to deal with when you get out. If you cannot pay the fines, you can work with probation, [Revenue Recovery], to modify the fines. But at this point I'm going to impose all of the other ones.” The trial court's minutes order defendant to “report to probation within 48 hours of release from custody.” In addition, defendant is ordered to “report to [Revenue Recovery] for a financial evaluation and recommendation of ability to pay costs for and in the amount of $46.00 per month for probation supervision.”

B.Analysis

Section 1203.1b, subdivision (a), provides in relevant part: “In any case in which a defendant is ... granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision.... The reasonable cost of these services and of probation supervision ... shall not exceed the amount determined to be the actual average cost thereof.... The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the...