IN RE: NATHAN C.

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Court of Appeal, Fifth District, California.

IN RE: NATHAN C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. NATHAN C., Defendant and Appellant.

F062004

Decided: August 29, 2011

Carol L. Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

The court found that appellant, Nathan C., was a person described in Welfare and Institutions Code section 602 1 after it sustained allegations in a petition charging Nathan with first degree burglary (Pen.Code, § 459).   On appeal, Nathan contends the court erred when it ordered him to pay a probation supervision fee of $100 as a condition of probation.   We will find merit to this contention.   In all other respects we will affirm.

On December 7, 2010, Nathan and another male entered a home in Modesto and took a television.

On December 9, 2010, the district attorney filed a petition charging Nathan with first degree burglary.

On February 1, 2011, the court sustained the burglary charge.

On February 16, 2011, the court committed Nathan to juvenile hall for 90 days with credit for 66 days served, and ordered that he serve the remaining days on the electronic monitor program in the custody of his grandparents.   The court also placed Nathan on probation and ordered him to obey the terms of probation recommended by the probation department which included a condition requiring him to pay a probation supervision fee of $100.

DISCUSSION

Nathan contends the court did not have the authority to order him to pay $100 toward the costs of probation supervision as a condition of probation.   He concedes the court can order him to pay these costs, albeit not as a condition of probation, if it first determines that his parents or grandparents have the ability to pay this amount.   Therefore, according to Nathan, the matter should be remanded to the trial court for it to strike the condition of probation requiring him to pay $100 towards the costs of probation supervision and for a determination of the ability to pay if the court decides to order him to pay this amount.   We agree and will remand the matter for further proceedings.

Unlike orders for restitution and restitution fines which are statutorily required to be included as conditions of probation (Pen.Code, § 1202.4, subd. (m)), attorney fees and costs are not.   Courts that have considered the question have held that probation may not be conditioned upon the payment of either sum.

“People v. Bennett (1987) 196 Cal.App.3d 1054, 1056–1057, ․ held the costs of probation imposed pursuant to [Penal Code] section 1203.1b may not be a condition of probation as the costs are collateral and the statute itself provides for enforcement of the order by civil collection.   Several cases, [including] People v. Faatiliga (1992) 10 Cal.App.4th 1276, 1280, hold that payment of attorney fees may not be made a condition of probation as it exacts a penalty for the exercise of a constitutional right.   Thus, the trial court may order defendant to pay for costs of probation and attorney fees, but may not condition defendant's grant of probation upon payment thereof.”  (People v. Hart (1998) 65 Cal.App.4th 902, 907.)   In accord with Hart and the cases cited therein, we agree with Nathan that the court erred when it ordered him to pay $100 for the costs of probation supervision as a condition of probation.

However, section 903.2 2 allows the juvenile court to order any person liable for the support of the minor to pay the costs of probation supervision for the minor if that person has the ability to pay.   Accordingly, we will remand the matter to the juvenile court so that the court can comply with this section if the court elects to order Nathan's parents or grandparents to pay $100 towards the costs of probation supervision.

DISPOSITION

The condition of probation requiring Nathan to pay $100 toward the costs of probation supervision is stricken and the court is directed to correct its paperwork accordingly.   The matter is remanded to the juvenile court for the court to comply with section 903.2 if the court elects to order Nathan, albeit not as a condition of probation, to pay $100 towards the costs of probation supervision.   As modified, the probation order (judgment) is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code..  FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

FN2. Section 903.2 provides:“(a) The juvenile court may require that the father, mother, spouse, or other person liable for the support of a minor, the estate of that person, and the estate of the minor shall be liable for the cost to the county of the probation supervision, home supervision, or electronic surveillance of the minor, pursuant to the order of the juvenile court, by the probation officer.   The liability of these persons (in this article called relatives) and estates shall be a joint and several liability. [¶] (b) Liability shall be imposed on a person pursuant to this section only if he or she has the financial ability to pay.   In evaluating a family's financial ability to pay under this section, the county shall take into consideration the family income, the necessary obligations of the family, and the number of persons dependent upon this income.”.  FN2. Section 903.2 provides:“(a) The juvenile court may require that the father, mother, spouse, or other person liable for the support of a minor, the estate of that person, and the estate of the minor shall be liable for the cost to the county of the probation supervision, home supervision, or electronic surveillance of the minor, pursuant to the order of the juvenile court, by the probation officer.   The liability of these persons (in this article called relatives) and estates shall be a joint and several liability. [¶] (b) Liability shall be imposed on a person pursuant to this section only if he or she has the financial ability to pay.   In evaluating a family's financial ability to pay under this section, the county shall take into consideration the family income, the necessary obligations of the family, and the number of persons dependent upon this income.”

THE COURT * FN*.  Before Gomes, Acting P.J., Kane, J., and Detjen, J.