Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County Nos. NA 054273 and NA 067926, Tomson T. Ong, Judge.
ORIGINAL PROCEEDING for writ of habeas corpus. Writ denied as moot.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
The trial court sent Raymond Bentley to prison for seven years because it found he violated his probation by failing to attend a domestic violence counseling program. We conclude there is insufficient evidence that Bentley had the ability to pay the $32.00 weekly program fee. We reverse the judgment and the order revoking probation and remand the cause to the trial court for further proceedings. We deny the habeas petition as moot.
For convenience we will round off all the dollar amounts in this opinion to the nearest dollar.
FACTS AND PROCEEDINGS BELOW
In 2002, Bentley pled nolo contendere to one count of spousal abuse. The court suspended imposition of the sentence and placed Bentley on five years of formal probation. A condition of that probation required Bentley to attend a 52-week domestic violence counseling program. There is no indication in the record that Bentley failed to attend these counseling sessions.
In 2005, Bentley pled nolo contendere to another charge of spousal abuse and two counts of assault with a deadly weapon. The court again suspended the sentence and placed Bentley on five years of formal probation. As a condition of probation, the court ordered Bentley to cooperate with his probation officer in a plan for domestic violence counseling. The court found Bentley’s new offenses violated his probation in the 2002 spousal abuse case. It revoked and reinstated probation in that case on the same terms and conditions as previously imposed.
In August 2006, the trial court revoked Bentley’s probation in both cases and remanded him to custody based on a report from his probation officer that he was in violation of the requirement that he attend a domestic violence counseling program.
At the probation revocation hearing the parties produced the following evidence.
The probation officer’s report stated that Bentley enrolled in the counseling program in March 2006 and attended six out of eight sessions. In May 2006, the program dismissed him for failing to make timely payments of the $32 weekly program fee. Bentley was given a re-enrollment letter in June but as of August he had not returned to the program. The probation officer recommended that Bentley’s probation be revoked and sentence be imposed in both cases.
A billing statement from the counseling program showed that Bentley had attended six classes from March 2, 2006 through May 4, 2006 and paid $130 including a $40 intake fee. According to the statement, he was “dropped from program” on May 7, 2006, because he owed $100 in class fees.
Bentley testified that from May to mid-July 2006 he worked part-time as a forklift operator for Shafer Brothers earning $8 an hour. He had been unemployed since then. He further stated that even when he had this part-time job he could not afford to pay the weekly $32 class fee and also pay for his family’s necessities of life such as rent, food and utilities. At the time of the hearing he owed $500 on his electric bill and $445 on his gas and water bill.
Amy Silvie, Bentley’s wife, testified that they live together with their three children ages 9, 4 and 11 months. Bentley began working for Shafer Brothers in March 2006 and last worked there in July of that year. He is not receiving unemployment insurance or welfare. When Bentley worked at Shafer Brothers the money he earned went toward rent, paying bills and “trying to put food on our table” Silvie further testified that the family currently was having financial problems and could not pay for the lights and gas or for the counseling program. She also stated that when they got enough money together to pay the $100 in fees Bentley owed for the counseling class he attempted to re-enroll “but they already dropped him from the class [and] that’s why we’re here today.” Silvie testified that she is not employed but receives disability payments under the Supplemental Security Income program (SSI) and that the family receives food assistance for the children under the Women, Infants and Children Program (WIC). There was no evidence as to the amount of Silvie’s SSI grant or the amount of assistance that the family receives through WIC.
Bentley introduced three weekly pay stubs from his employment at Shafer Brothers in 2006. The earliest pay stub shows that he was hired on March 29, 2006, not in May as he testified. Between March 29, 2006 and June 24, 2006, he earned $2800 gross. The second pay stub, for the week June 25 through July 1, 2006, shows Bentley grossed $154. The final pay stub, covering July 9 through July 15, 2006, shows gross earnings of $268 and that his total gross earnings from April through July 15, 2006 were $3285.
Based on this evidence the trial court found that Bentley had the ability to pay for the domestic violence counseling classes but that he willfully failed to do so. Therefore, the court concluded, Bentley violated a term of his probation. The court revoked Bentley’s probation in both cases and sentenced him to a total of seven years in prison. The court also imposed $1400 in fines and penalties.
Bentley filed a timely appeal from the judgment and a petition for a writ of habeas corpus alleging ineffective assistance of counsel. We ordered the appeal and the writ petition considered together.
DISCUSSION
The People concede, and we agree, that Bentley’s failure to attend the counseling program could serve as a basis for probation revocation only if the evidence shows that Bentley had the financial ability to pay the program fees but willfully failed to do so. (Cf. Bearden v. Georgia (1983) 461 U.S. 660, 672 [probationer could not be imprisoned for failure to pay a fine imposed as a condition of probation if he lacked the ability to pay]; In re Antazo (1970) 3 Cal.3d 100, 116 [absent a compelling interest, imprisoning an indigent defendant for failing to pay a fine violates the equal protection clause of the Fourteenth Amendment].)
See also Penal Code section 1203.2, subdivision (a), which states that probation “shall not be revoked for failure of a person to make restitution . . . as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay.”
The trial court found that Bentley had the ability to pay the counseling fees but willfully failed to do so. We review this finding for substantial evidence. (In re Siegel (1975) 45 Cal.App.3d 843, 847 [finding of indigency]; People v. Buford (1974) 42 Cal.App.3d 975, 987 [failure to comply with probation condition].)
To establish that failure to comply with a probation condition is “willful,” the evidence need only show that the probationer acted intentionally. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.) Here, it is undisputed Bentley knew he had to pay for the counseling sessions and that he intentionally failed to do so. The evidence is insufficient, however, to show that Bentley had the ability to pay the $32 weekly counseling fee between March 2 and May 7, 2006—the period in which his underpayments resulted in his termination from the program.
The Shafer Brothers paycheck stubs show Bentley’s gross earnings for the 12-week period from March 29 to June 24, 2006 were $2794 and his net earnings were $2415. This averages $233 a week gross and $200 a week net. To put these amounts in perspective, the federal poverty level for a family of five in 2006 was $562 a week. Thus, during the period in question—March 2 through May 7, 2006—Bentley was earning less than half the poverty level for his size family. Paying the $32 weekly counseling fee would have left Bentley with an average of $168 a week to pay for shelter, food, utilities, clothing, and the other necessities for himself, his wife and their three young children. The paycheck stubs for the three-week period between June 25 and July 15 (Bentley’s last day of work) show even less earnings.
Department of Health and Human Services, Poverty Guidelines, 71 Fed. Reg. 3848-3849 (Jan. 24, 2006).
Finally, although Silvie testified that she receives an SSI grant and the children receive food assistance under the WIC program, there is no evidence as to the amount of that financial assistance.
Bentley’s inability to pay for domestic counseling in the past does not mean that he should be excused from attending counseling in the future. His history of violent behavior supports the trial court’s view that there is a need for such counseling. On remand the trial court may reinstate probation with a requirement that Bentley attend domestic violence counseling. If it does so, however, it must evaluate the Bentley family’s financial situation and order Bentley to pay counseling fees only commensurate with his financial ability.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court with directions to vacate its order revoking probation and to enter a new probation order for both cases consistent with the views expressed in this opinion.
The petition for a writ of habeas corpus is denied as moot.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)