P. v. Cheatham
Filed 12/23/09 P. v. Cheatham 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. WAYMON CHEATHAM, Defendant and Appellant. | E048322 (Super.Ct.No. FVA028089) OPINION |
APPEAL from the Superior Court of San Bernardino County. Stephen G. Saleson, Judge. Affirmed as modified.
John F. F. Bovee, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I
INTRODUCTION
On November 21, 2006, a complaint charged defendant and appellant Waymon Cheatham with one count of possessing cocaine base for sale under Health and Safety Code section 11351.5. The complaint also alleged that (1) under Penal Code section 186.22, subdivision (b)(1)(A), the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members; (2) under Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), defendant had a prior serious felony (involuntary manslaughter) with a gang allegation; (3) under Health and Safety Code section 11370.2, subdivision (a), defendant had previously been convicted of violating Health and Safety Code section 11351.5; and (4) under Penal Code section 667.5, subdivision (b), defendant had served two prior prison terms.
On March 29, 2007, an information, with contents identical to those of the complaint, was filed against defendant.
On May 22, 2008, the trial court denied defendants motion to suppress evidence under Penal Code section 1538.5.
On March 6, 2009, pursuant to a plea agreement, defendant pled guilty to the single count of possessing cocaine base for sale under Health and Safety Code section 11351.5. Defendant admitted the prior conviction for possession of cocaine base for sale. He also admitted that he had two additional prior prison terms. All of the remaining allegations were dismissed.
Pursuant to the terms of the plea agreement, defendant was sentenced to five years for violating Health and Safety Code section 11351.5, plus three years under Health and Safety Code section 11370.2, subdivision (d), plus an additional one year each for the two prior prison term enhancements under Penal Code section 667.5, subdivision (b), for a total term of 10 years in state prison.
In addition to sentencing defendant, the trial court imposed an order that defendant pay $150 in appointed counsel costs under Penal Code section 987.8. These fees were not part of the plea agreement. The court did not hold a separate hearing prior to assessing the fees, the court offered no explanation when imposing the fees, and there was no probation report assessing defendants ability to pay.
Defendant appeals.
II
ANALYSIS
Defendants sole contention on appeal is that the trial court erred in imposing an order that defendant pay $150 in appointed counsel costs under Penal Code section 987.8, without conducting a hearing. The People agree with defendant.
An assessment of attorneys fees against a criminal defendant involves the taking of property, triggering constitutional concerns. Due process, therefore, requires that the defendant be afforded notice and a hearing before such a taking occurs. (People v. Amor (1974) 12 Cal.3d 20, 29-30; People v. Phillips (1994) 25 Cal.App.4th 62, 72.)
Penal Code section 987.8 sets forth the statutory procedure for ascertaining a criminal defendants ability to repay the county for the cost of services rendered by court-appointed counsel. It includes provisions for notice and a hearing to determine the defendants present ability to pay such fees. (Id., subd. (b).)
The failure to conduct a hearing to determine whether a defendant can pay for appointed counsel fees under Penal Code section 987.8 requires a remand for such a hearing. (See People v. Flores (2003) 30 Cal.4th 1059, 1068-1069 [where trial court fails to conduct hearing on defendants ability to pay under Penal Code section 987.8, appellate court properly remands to allow the trial court to make an informed decision].)
Here, there is no evidence in the record to suggest that the trial court complied with the provisions of Penal Code section 987.8, subdivision (f), by advising defendant at his arraignment that a determination of his ability to pay for the cost of counsel would be made at the conclusion of criminal proceedings, or with the provisions of Penal Code section 987.8 that come into play once criminal proceedings have concluded. At no time prior to sentencing was defendant given notice that a hearing would be held to determine his ability to reimburse the county for the cost of his defense, and no portion of the sentencing hearing was dedicated to an ascertainment or discussion of defendants ability to pay for the cost of his defense. The court simply announced that defendant would be responsible for paying $150 in court-appointed counsel fees. In addition, there is no probation report in this case which assessed defendants ability to pay. In sum, the record in this case is completely devoid of any showing of compliance with Penal Code section 987.8, subdivisions (b), (d), (e) and (f).
The question remaining is whether this is an appropriate case for remand. In this case, both parties agree that it would be a waste of judicial resources to remand for further proceedings given the negligible amount awarded, $150, and because there is no evidence to suggest defendant has the ability to pay for appointed counsel fees. We agree. Judicial economy compels us to strike the order imposing attorneys fees. Therefore, we shall affirm the judgment and direct the trial court to strike the order for payment of appointed counsel fees.
III
DISPOSITION
The judgment is modified to strike the attorneys fees award of $150. The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (Pen. Code, 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Ramirez
P.J.
/s/ King
J.
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