People v. Ashworth CA1/4

Filed 6/17/14 P. v. Ashworth CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A137907 v. MATTHEW ASHWORTH, (Napa County Super. Ct. No. 162531) Defendant and Appellant.

Defendant Matthew Ashworth appeals from a judgment entered on his plea of no contest to a charge of receiving stolen property. He contends the trial court imposed presentence report and probation supervision fees without following the proper procedures and without substantial evidence of his ability to pay them. We shall affirm the judgment. I. BACKGROUND On August 1, 2012, defendant was charged with receiving stolen property (Pen. Code, § 496, subd. (a)), with a special allegation that he committed the offense while on bail (Pen. Code, § 12022.1).1 He pled no contest to the offense on January 2, 2013. On January 30, 2013, the trial court suspended the imposition of sentence and placed defendant on formal probation for three years with 180 days in jail, and the enhancement was dismissed pursuant to his plea agreement.

1 The details of defendant’s offense are not pertinent to this appeal.

1

The probation department had prepared a presentence report recommending defendant pay a restitution fine of $280, a $40 court security fee, a $30 criminal conviction assessment fee, a $75 jail booking fee, a $560 presentence investigation report fee, and a $240 probation supervision fee. The probation report indicated that defendant had over 17 years’ work experience in the plastering business and worked for a plastering company from approximately 2008 until 2011. The report also noted that defendant supported only himself and his wife and that he had been receiving $125.00 per week on unemployment until September 2012. At the sentencing hearing, the court indicated it also intended to impose $600 in attorney fees. Defendant requested that the court “strike the attorney fees, as well as the other fees imposed” on the basis that he was indigent. The court examined a form provided by defendant that stated he was unemployed and had no assets. The court asked defendant why he was not working, and defendant replied that his right arm was disabled. He said he had applied for disability benefits. The court waived only the attorney fees and imposed the $560 presentence investigation report fee and the $240 probation supervision fee challenged by defendant on this appeal. II. DISCUSSION A. Notice of Right to Hearing Defendant contends the trial court’s order requiring him to pay the $560 presentence report fee and the $240 probation supervision fee must be reversed because the probation officer and the sentencing court failed to follow procedures set forth by Penal Code2 section 1203.1b in order to determine his ability to pay these costs. Section 1203.1b, subdivision (a), requires the probation officer to determine the defendant’s ability to pay all or a portion of the reasonable cost of preparing any presentence report and any probation supervision. It further provides that 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