Tuesday, December 4, 2018
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Gauging Ability to Pay Probation Fee Can’t Be Delegated to Probation Officer—C.A.
By a MetNews Staff Writer
The First District Court of Appeal has reversed an order that a man pay a monthly “probation supervision fee” of up to $75 because the trial court judge delegated to the probation officer the court’s own duty of determining how much the defendant had an ability to pay.
Presiding Justice J. Anthony Kline of Div. Two wrote the opinion, filed Friday. In a published portion, he pointed to Penal Code §1203.1b, which provides, in part:
“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 the determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.”
Disclaims Responsibility
Contra Costa Superior Court Judge Bruce C. Mills expressed the view at the sentencing hearing for John David Neal—whose conviction for being an ex-felon is possession of firearms was affirmed in an unpublished portion of Kline’s opinion—that it was not his job to set the exact amount that would be paid to the Probation Department. He said:
“It’s that it’s not the court’s determination. It’s probation’s. I’m going to defer to probation to make the right decision.”
Kline wrote:
“Where, as in this case, a statute posits ability to pay as a precondition of a requirement to pay a fee comparable to the one at issue here—such as the booking fee…—the defendant has the right to a determination of his ability to pay the fee before the court may order payment….In this situation, unless waived by the defendant, it is for the court, not the probation officer, to make the final determination. Here, neither the court’s order nor anything else that took place at the sentencing hearing informed appellant of his right to an adjudication after an evidentiary hearing as to the propriety of the probation officer’s determinations, or indicated that those determinations would be subject to any further judicial review. Matters required by the statute to be decided by the court, in the absence of a knowing and intelligent waiver by appellant, were instead left entirely in the hands of the probation officer.”
Public Policy
The jurist commented:
“Strict compliance with the statutorily prescribed process is warranted by the problems that may result from unjustified imposition of probation services fees. As legislative and other policymakers are becoming increasingly aware, the growing use of such fees and similar forms of criminal justice debt creates a significant barrier for individuals seeking to rebuild their lives after a criminal conviction. Criminal justice debt and associated collection practices can damage credit, interfere with a defendant’s commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation.”
Kline also pointed to a potential conflict of interest: that moneys paid by probationers go to the Probation Department, providing an incentive for an underbudgeted department to find an ability to pay the maximum amount authorized by the court.
“[T]here is reason to believe administrative fees of the sort authorized by section 1203.1b do not serve their ostensible purpose, to defray the cost of county government,” Kline remarked, pointing to a study by the Office of the Treasurer and Tax Collector of the City and County of San Francisco. He said it shows that probation fees “are among the most expensive for individuals, second only to victim restitution, and result in the most long-term debt of the administrative fees...examined” and that out of $15.8 million in such assessed over the past six years, $12 million is uncollected.
The matter was remanded for a new hearing on Neal’s ability to pay.
In the unpublished portion of the opinion, Kline said that Mills was correct in denying a suppression motion because the warrantless search that resulted in an uncovering of the weapons in question was consented to by the defendant’s wife.
The case is People v. Neal, 2018 S.O.S. 5710.
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