People v. Zamora CA6

Filed 1/21/14 P. v. Zamora CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039247 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1232770)

v.

CARLOS ZAMORA,

Defendant and Appellant.

STATEMENT OF THE CASE Defendant Carlos Zamora pleaded no contest to vehicle theft (Veh. Code, § 10851, subd. (a)), and he admitted that he committed the crime for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)). The trial court suspended imposition of sentence and placed defendant on formal probation for three years. The grant of probation was conditioned on defendant’s service of a six-month term in county jail, which the court deemed served. The court ordered defendant to pay various fines and fees, including a $225 presentence investigation fee and a probation supervision fee of $35 per month. Defendant now appeals from the judgment of conviction. On appeal, he contends that the trial court erred in imposing the presentence investigation fee and the probation supervision fee without determining his ability to pay those fees, and he therefore

requests that we remand the matter to the trial court for a hearing regarding his ability to pay them. The People assert that defendant forfeited his claim by failing to object. We conclude that defendant’s claim is not forfeited, and that the trial court erred in imposing the fees without determining defendant’s ability to pay them.1 We therefore will reverse the order requiring defendant to pay the presentence investigation fee and the probation supervision fee, remand the matter for a hearing regarding defendant’s ability to pay such fees, and affirm the judgment in all other respects DISCUSSION2 Background The probation report, which was dated October 12, 2012, recommended that a “Presentence Investigation Fee not to exceed $450.00 be imposed pursuant to Section 1203.1b of the Penal Code.” It also recommended that a “Probation Supervision Fee not to exceed $110.00 per month be imposed pursuant to Section 1203.1b of the Penal Code.” The probation report stated that “defendant was provided with a Statement of Assets form and was instructed to return it to Court at sentencing.” The probation report did not describe defendant’s assets, nor did it discuss defendant’s ability to pay any fees. On January 4, 2013, the trial court learned that defendant had been charged with murder. Defendant was in custody due to the pending murder charge. At the sentencing hearing on January 11, 2013, the court imposed a $225 presentence investigation fee. It did not state any reasons for selecting the amount of