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The People v. Cynthia Ann Pendergist

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 23, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CYNTHIA ANN PENDERGIST, DEFENDANT AND APPELLANT.

APPEAL from the Superior Court of Riverside County. Gordon R. Burkhart, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions. Super.Ct.Nos. RIF121204 & RIF113043

The opinion of the court was delivered by: Richli J.

P. v. Pendergist CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Defendant and appellant Cynthia Ann Pendergist appeals from the trial court's order denying her motion to vacate certain fines and fees. Defendant's sole contention on appeal is that the trial court abused its discretion in denying her motion to vacate the challenged fines and fees imposed in case Nos. RIF113043 and RIF121204 based on her inability to pay. Because we find the trial court failed to properly determine defendant's ability to pay the challenged fines and fees, we will remand the matter for that purpose.

I

PROCEDURAL BACKGROUND*fn1

On October 27, 2003, defendant entered into a plea bargain pursuant to which she pleaded guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. RIF 113043. In exchange, the remaining allegation of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) was dismissed, and the trial court granted defendant probation for a period of three years pursuant to Proposition 36 on various terms and conditions, including paying various fees and fines. Specifically, Defendant was ordered to pay a drug laboratory fee of $158 (Health & Saf. Code, § 11372.5); a drug program fee of $158 (Health & Saf. Code, § 11372.7); a restitution fee of $200 (Pen. Code, § 1202.4, subd. (b)); a court security fee of $20; a booking fee of $110 (Gov. Code, § 29550); a cost of probation fee of $252 (Pen. Code, § 1203.1); and an outpatient substance abuse program fee of $1,440. Defendant accepted the terms and conditions of her probation.

Defendant subsequently violated probation several times in case No. RIF113043. Each time, her probation was reinstated on modified terms and conditions. On August 17, 2004, after defendant admitted to violating probation again, her Proposition 36 probation was terminated, and she was ordered to serve 120 days in a weekend program.

On January 6, 2005, defendant pleaded guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. RIF121204. Defendant also admitted to violating probation in case No. RIF113043. In return, the remaining allegations were dismissed, and defendant was placed on probation for a period of three years in the new matter on various terms and conditions, including serving 180 days in county jail on a work release program. In the new matter, defendant was also ordered to pay a drug laboratory fee of $158; a drug program fee of $158; a restitution fee of $200; a court security fee of $20; a booking fee of $110; a cost of probation fee of $252; and court-appointed attorney fees in the amount of $96.

In August 2006, a petition alleging violation of probation based on defendant's failure to pay fines in the amount of $933 was filed in case No. RIF113043. On March 28, 2007, defendant's probation was extended to September 28, 2007, and a hearing regarding a payment plan was set for May 11, 2007. Defendant's probation was extended numerous times thereafter.

On December 29, 2008, defendant admitting violating her probation by failing to pay her required fees and fines in both cases. At that time, her counsel informed the court that defendant had submitted paperwork from her oncologist and that "[t]he reason she stopped paying her fines is because she has been diagnosed with cancer and she has been going through radiation treatment." Defendant's probation was once again reinstated and extended to December 29, 2009.

On December 29, 2009, petitions alleging violation of probation based on defendant's failure to pay her fines and fees in both cases were filed.

On January 15, 2010, defendant filed motions to vacate certain fines and fees in both cases, claiming she did not have the ability to pay the fines and fees. Specifically, defendant requested that the court vacate costs of probation; attorneys fees; booking fees; and drug program fees. It appears that the People did not file an opposition.

The hearing on defendant's motion was held on January 28, 2010. At the hearing, the following colloquy occurred:

"[DEFENSE COUNSEL]: [¶] . . . [¶] . . . [U]nder Penal Code section 1203(1)(b), the Court at any time can vacate previous judgments on change of circumstances as well. As we've indicated in the moving papers, [defendant] has been diagnosed with cancer -- actually two different cancer diagnoses in the last several years. She is currently on food stamps and does not have any financial means to pay these fines and fees.

"THE COURT: So you are saying that everybody else in the courtroom should pay them for her? That's basically what you are saying; right?

"[DEFENSE COUNSEL]: No, Your Honor, but -

"THE COURT: I suppose if we put that to a vote, how would they vote? They're going to pay her fees.

"[DEFENSE COUNSEL]: Yes, Your Honor, but these are based on one's ability to pay. That is the law for each and every individual. Some individuals do have the ability to pay, others do not.

"THE COURT: Well, right now the taxpayers don't have the ability to pay either, do they? As we're laying people off? How are the taxpayers going to be able to [pay] this either? We're letting people out of custody early because we don't have the ability to pay. We're laying people off because we don't have the ability to pay. We're giving furlough days because we don't have the ability. Motion is denied."

The People did not make any argument or statement at that hearing.

On February 16, 2010, defendant filed notices of appeal in both cases "based on the sentence of other matters occurring after the plea."

II

DISCUSSION

Defendant contends that the trial court erred when it denied her motions to vacate the fines and fees based on her inability to pay. Defendant therefore requests that this court strike the costs of probation, attorney fees, booking fees, and drug program fees.

The People respond that defendant's claim is barred by her failure to obtain a certificate of probable cause. The People further allege that defendant forfeited this issue when she failed to object and agreed to the challenged costs and fees at sentencing. Finally, in the alternative, the People argue that the trial court properly denied defendant's motion to vacate the challenged costs and fees.

Penal Code section 1203.3 provides, in pertinent part, "(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held. [¶] (b) The exercise of the court's authority in subdivision (a) to revoke, modify, change, or terminate probation is subject to the following: [¶] (1) Before any sentence or term or condition of probation is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter. . . . [¶] (A) If the sentence or term or condition of probation is modified pursuant to this section, the judge shall state the reasons for that modification on the record. [¶] (B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor."

Penal Code section 1203.1b, subdivision (c) states that the court "may hold additional hearings during the probationary or conditional sentence period to review the defendant's financial ability to pay the amount, and in the manner, as set by the probation officer, or his or her authorized representative, or as set by the court pursuant to this section."

Penal Code Section 1203.1b, subdivision (f) provides that "[a]t any time during the pendency of the judgment rendered according to the terms of this section, a defendant against whom a judgment has been rendered may petition the probation officer for a review of the defendant's financial ability to pay or the rendering court to modify or vacate its previous judgment on the grounds of a change of circumstances with regard to the defendant's ability to pay the judgment."

Penal Code section 1203.1b, subdivision (e) provides that "[t]he term 'ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs . . . and shall include, but shall not be limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs."

Based on the plain meaning of Penal Code Section 1203.1b, subdivision (f), we reject the People's appealability and waiver arguments. That subdivision allows a defendant to petition the court to modify or vacate its previous judgment "on the grounds of a change of circumstances with regard to the defendant's ability to pay the judgment." Hence, pursuant to Penal Code section 1237, subdivision (b), a defendant can appeal "[f]rom any order made after judgment, affecting the substantial rights of the party." (See also People v. Feyrer (2010) 48 Cal.4th 426, 434, fn. 5.) We do not believe defendant's claim here is an attack on the plea agreements or on the imposition of the challenged fines and fees.*fn2 (See People v. Panizzon (1996) 13 Cal.4th 68, 80.) Rather, the issue here is whether the trial court erred in failing to determine whether defendant currently had the financial ability to pay the challenged costs and fees based on changed circumstances. Moreover, because it is illegal to impose the challenged fees and fines as conditions of probation, they could not have been negotiated. (See, e.g., People v. Bradus (2007) 149 Cal.App.4th 636, 641.)

Turning to the merits of defendant's claim, we find that the trial court erred in failing to properly conduct a hearing to determine defendant's ability to pay the challenged fines and fees based on changed circumstances. Section 1203.1b contemplates that if a defendant invokes his or her right to a court determination of his or her ability to pay certain costs and fees, the court shall make this determination after a hearing and in doing so, may take into account the defendant's earning capacity for a period of no more than one year from the hearing. If the court perceives that a defendant may have a greater ability to pay by earning capacity or otherwise later than one year out, the court is free to set additional hearings during the probationary period to revisit the question of a defendant's ability to pay and to modify what is required to be paid.

Although the statute does not expressly preclude a deferral of a defendant's ability to pay, its mandatory directive that the court must determine ability to pay if a defendant exercises his or her right to a court hearing impliedly does so. In order to harmonize the above-mentioned statutory provisions, particularly those limiting the period of future earning capacity that may be considered by the court, we must interpret the statute such that a defendant exercising his or her right to a court determination of ability to pay will receive that determination in response to the motion, which determination may project earning capacity for a one-year period and no more. We do not interpret section 1203.1b, subdivision (c), which permits a court to later revisit a previous determination of a defendant's ability to pay, to mean that the court can decline to make the determination, or indefinitely or perpetually defer it, pending a defendant's future realization of earning capacity beyond one year.

While we understand the trial court's frustration over the current economic situation of the State and the taxpayers, declining to make an ability-to-pay determination on that ground was error. The trial court did not address the issue on the merits.

Accordingly, we will remand the matter to the trial court to conduct a hearing on whether defendant has the financial ability to pay the challenged fines and fees based on changed circumstances.*fn3

III

DISPOSITION

The matter is remanded to the trial court for the sole purpose of conducting a hearing on whether defendant has the financial ability to pay the challenged fines and fees based on changed circumstances. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur:

RAMIREZ

P.J.

CODRINGTON

J.*fn4


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