People v. Bennett

Opinion

FEINERMAN, P. J.

Defendant was convicted of possession of marijuana for sale (Health & Saf. Code, § 11359), following submission of the case for trial on the preliminary hearing transcript.

1

He was placed on three years’ probation on various terms and conditions, including serving ninety days in county jail and paying for probation services, the costs of which were to be determined by the probation department. Sentence was stayed pending appeal.

Defendant’s sole contention on appeal is that the trial court erred in making reimbursement of probation costs a condition of probation and delegating to the probation department the task of determining such costs.

People

v.

Baker

(1974) 39 Cal.App.3d 550 [113 Cal.Rptr. 248] held that a trial court lacked authority under Penal Code section 1203.1 to condition

[1056]

probation upon reimbursement of the costs of prosecution or of probation supervision. Thereafter, the Legislature enacted Penal Code section 1203.1b which permits the trial court to require a defendant to reimburse probation costs if the court determines,

after hearing,

that the defendant has the ability to pay all or a portion of such costs.

In People

v.

Wilson

(1982) 130 Cal.App.3d 264 [181 Cal.Rptr. 658], as in the instant case, the trial court directed that the defendant, as a condition of probation, pay the cost of probation services in an amount and manner to be determined by the probation officer. The court on appeal held that Penal Code section 1203.1b did not permit delegation of these determinations to the probation officer, and further, that the procedure which the statute established for recovery of probation costs was collateral to, and could not be made a condition of, granting probation. (130 Cal.App.3d at pp. 268-269.) The court reached this conclusion even though the statute permits the trial court to order the defendant “to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the costs.” The interpretation adopted by