People v. Ochoa CA6

Filed 2/6/14 P. v. Ochoa CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039369 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS092343)

v.

ADOLFO BELLO OCHOA,

Defendant and Appellant.

INTRODUCTION Defendant Adolfo Bello Ochoa pleaded guilty to possessing cocaine (Health & Saf. Code, § 11350, subd. (a)). The trial court placed defendant on probation for three years. On appeal, defendant argues that the trial court erred in imposing a $864 probation report preparation fee and a $81 monthly probation supervision fee without first determining his ability to pay the fees. Defendant also contends, and the Attorney General concedes, that the restitution fine and the probation revocation restitution fine must be reduced to $200 because (1) it was the minimum restitution fine amount at the time he committed the crime (Pen. Code, § 1202.4)1 and (2) it was the amount consistent with the trial court’s oral pronouncement of judgment. For the reasons stated below, we will reverse the judgment and remand with directions to determine, in accordance with section 1203.1b, defendant’s ability to pay probation services fees and to modify the judgment by reducing the restitution fine. 1 All further statutory references are to the Penal Code unless otherwise indicated.

BACKGROUND On or about October 8, 2009, defendant was contacted by the California Highway Patrol and had a small amount of cocaine on his person. Defendant was charged with sale or transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)), possession of cocaine (id., § 11350, subd. (a)), and driving without a license (Veh. Code, § 12500, subd. (a)). Defendant pleaded guilty to possessing cocaine (Health & Saf. Code, § 11350, subd. (a)) and was granted deferred entry of judgment (DEJ). On January 17, 2013, the trial court terminated DEJ and reinstated criminal proceedings. On February 19, 2013, the trial court suspended imposition of sentence and placed defendant on probation for three years. The court orally imposed, but suspended, a probation revocation restitution fine in the amount of $200. (§ 1202.44.) The minute order, however, reflects a restitution fine and an additional probation revocation restitution fine of $280. In addition to the probation revocation restitution fine, the court also adopted the recommendation in the probation report concerning probation services fees. The court ordered defendant: “to pay $864.00 for the cost of preparation of the probation report, plus $81.00 per month as the cost of supervised probation in accordance with his/her ability to pay. The defendant is ordered to provide the Probation Officer with financial information for evaluation of his/her ability to pay, and is ordered to pay the amount Probation determines he/she can afford. [¶] Unless otherwise stated, all financial obligations are to be paid through the Monterey County Revenue Division.” DISCUSSION A. The Probation Services Fees Defendant contends that the trial court’s order imposing probation services fees should be vacated, and the matter should be remanded because defendant was never advised of his right to a hearing to determine his ability to pay and he never waived this 2