People v. Monteer CA1/1

Filed 8/28/15 P. v. Monteer CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A140297 v. RICKY MONTEER, (Contra Costa County Super. Ct. No. 41768571) Defendant and Appellant.

After defendant Ricky Monteer pleaded guilty to felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), the trial court placed him on three years’ formal probation and imposed various fines and fees. On appeal, defendant contends the court improperly delegated to the probation department the responsibility for determining the amount of the probation supervision fee (Pen. Code, § 1203.1b) and erred in imposing a criminal justice administration (booking) fee (Gov. Code, § 29550, subd. (d)(2)) and attorney fees (Pen. Code, § 987.8) without determining his ability to pay. The California Supreme Court has recently addressed these fees in a trilogy of cases: People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar), People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo) and People v. McCullough (2013) 56 Cal.4th 589 (McCullough). In light of these cases, we conclude defendant forfeited any complaint about the referral of the probation supervision fee because he failed to raise it in the trial court. He did, however, object to the imposition of the booking and attorney fees on ability to pay grounds. He therefore preserved the issues for appeal, and we now reverse

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in light of the Supreme Court’s clear directive that a trial court must make an ability to pay determination before imposing an unconditional payment obligation. BACKGROUND We recite only the facts relevant to the fee issues defendant raises on appeal. At the outset of what became the sentencing hearing, counsel advised the trial court that the parties had reached a negotiated disposition of a probation revocation matter and the instant criminal case. Defense counsel recited the principal terms of the agreement and then objected to the imposition of any fines and fees the court could waive on the ground defendant lacked ability to pay. The court responded, “Well, what I’ll do is I’ll go through them in the sentencing, and then tell me which actual ones you object to, and then my understanding is the probation department is doing the task of gathering the information, making a recommendation just like they do for attorney’s fees, we’ll— whoever does it for attorney’s fees, same process, and then it goes back to a judge and he can ask for a hearing if he doesn’t agree with what they are.” The court then took defendant’s plea, suspended imposition of sentence, and placed defendant on three years of formal probation subject to numerous terms and conditions, including that he serve 180 days in the county jail term with credit for time served. The court additionally imposed numerous fines and fees. As to the booking fee, the court stated: “There is a criminal justice administration fee of $564. Contact Court Collections and Alliance One in order to set up a payment plan for any of these fees and fines, and do that as soon as you’re able to.” As to probation costs, the court stated: “The cost of probation services to be determined by the probation officer.” As to attorney fees, the court stated: “As far as attorney’s fees for the Public Defender, this is pre-preliminary hearing, so $200 is assessed. That paperwork will tell you the process to go through if, in fact, you want to have a hearing on ability to pay on that.” The court then returned to defense counsel’s objection to the fees, asking “as to those terms and fees and fines, which specific ones are you objecting to?” Counsel replied: “Well, I’m objecting to the 280 [restitution and probation revocation fine