P. v. Kellner

Filed 9/14/07 P. v. Kellner CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

----

Defendant Ruth Anna Kellner pled guilty in three separate cases to three counts of possession of methamphetamine with intent to sell (Health & Saf. Code, 11378) and one count of being an accessory after the fact (Pen. Code, 32). Defendant also admitted the following enhancements: (1) the methamphetamine she possessed was in crystalline form (Pen. Code, 1170.74); (2) the methamphetamine she possessed was an excess amount (Pen. Code, 1203.073, subd. (b)(2)); and (3) she committed one of the offenses while she was out on bail (Pen. Code, 12022.1).^[1] In exchange for her plea, the prosecutor dismissed the remaining charges and agreed to a maximum sentence of seven years in state prison.

Sentenced to seven years in state prison, defendant now appeals her sentence, arguing the court abused its discretion when it sentenced her to consecutive terms on counts 1 and 6 in Siskiyou County case No. 052135. Defendant also appeals the trial courts order that she pay attorney fees totaling $5,934.50 pursuant to section 987.8. We will strike the order for attorney fees and otherwise affirm the judgment.

I. SENTENCING

Defendant contends that by imposing consecutive sentences on count 1 (possession of methamphetamine with intent to sell) and count 6 (possession of methamphetamine with intent to sell) of Siskiyou County case No. 052135, the trial court violated section 654s prohibition against multiple punishments for the same offense. Defendant comes to this court without a certificate of probable cause, which is required in order to challenge the validity of a plea agreement. ( 1237.5; People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).) Defendant thus makes every effort to persuade this court that her appeal does not attack the validity of her plea. She ignores Shelton, supra, 37 Cal.4th 759.

Shelton unambiguously holds that challenging a sentence imposed pursuant to a plea agreement on the ground it violates section 654 is a challenge to the validity of the plea. Ergo, we agree with the People that defendant was required to obtain a certificate of probable cause and her appeal fails because she did not do so.^[2]

Defendants appeal would fail in any event because she is estopped from complaining of a sentence to which she agreed. (People v. Hester (2000) 22 Cal.4th 290, 295.) By pleading guilty and acknowledging the trial courts authority to impose seven years of confinement, a sentence that could only be reached through imposition of the consecutive sentences she now challenges, defendant waived any right to challenge the courts implied finding that the offenses for which she was convicted in counts 1 and 6 were committed on separate occasions. (See ibid. [waiver applies to section 654 issue if defendant agreed to sentence as part of plea].) We affirm defendants sentence accordingly.

II. ATTORNEY FEES

Defendant also claims the trial court erred in ordering her to pay attorney fees when it did not make a finding that she had the ability to pay as required by section 987.8.^[3] Defendants attorney objected to the order for fees at the hearing, but his objection went unheeded by the trial court. The People concede there is insufficient evidence in the record to support a finding that defendant has the ability to pay the fees ordered. Hence, the People urge us to remand the matter for further proceedings. We agree there is insufficient evidence to affirm the order; however, for the reasons set forth below we will strike the order.

Section 987.8 authorizes the court to order a criminal defendant to pay all or part of the cost of his or her appointed counsel after the trial court determines the defendant has a present ability to pay. The ability to pay includes the defendants reasonably discernible future financial position, limited to the next six months. ( 987.8, subd. (g)(2)(B).)

Ordinarily, while this statute may not require an express finding of ability to pay (cf. People v. Phillips (1994) 25 Cal.App.4th 62, 76), it contains a presumption that those sentenced to prison are unable to pay (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 (Lopez)). Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. ( 987.8, subd. (g)(2)(B).) We construe this part of the statute to require an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney. (Lopez, supra, 129 Cal.App.4th at p. 1537.)

A determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fee order. ( 987.8, subd. (e).) While such a determination may be implied, the order cannot be upheld on review unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) When the issue on appeal is sufficiency of the evidence, [w]e must draw all reasonable inferences in favor of the judgment. (People v. Mercer (1999) 70 Cal.App.4th 463, 467.)

Drawing all inferences in favor of the judgment, we agree with the parties that the record here does not contain sufficient evidence of defendants ability to pay attorney fees. In fact, the only evidence of defendants present financial position is the notation in the probation report that defendant was unemployed when she was arrested. There was no evidence that she had any lawful source of income available to her at that time. It is also evident from the record that defendant has a minor child to support, and the court sentenced defendant to seven years in state prison.^[4]

The court made no express finding of an unusual circumstance to rebut the statutory presumption, and the record does not support an implied finding of one. We conclude that here, as in People v. Kozden (1974) 36 Cal.App.3d 918, 920, there is no substantial evidence to support the trial courts determination that [defendant] possessed the present ability to pay the sum assessed . . . . Nor is this an appropriate case to remand to the trial court. This is not a case such as People v. Flores (2003) 30 Cal.4th 1059, 1068, in which a showing of unusual circumstances was conceivable because, according to the probation report, defendant possessed $1,500 worth of jewelry at the time of sentencing.

In the absence of any unusual circumstances, the presumption of section 987.8, subdivision (g)(2)(B) controls. Defendants imprisonment also eliminates the likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing, except for the employment opportunities that prison offers. ( 987.8, subd. (g)(2)(C).) Accordingly, in light of defendants circumstances, the statutory presumption in section 987.8, subdivision (g)(2)(B), and the fact that a hearing on fees was already properly noticed and held, we conclude a further judicial proceeding would only generate more costs. In the interests of judicial economy and efficiency, therefore, we will strike the order assessing attorney fees.^[5]

DISPOSITION

The order for attorney fees is stricken. The judgment is affirmed in all other respects.

RAYE , Acting P.J.

We concur:

MORRISON , J.

BUTZ , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Defendant did request a certificate of probable cause from the trial court. That request was denied with the trial courts notation that a certificate was not needed. The trial court was wrong; a certificate of probable cause was needed to appeal her sentence. Nevertheless, the trial courts reason for denying her request is irrelevant. The court was correct in refusing to issue a certificate of probable cause. (Cf. In re Natasha A. (1996) 42 Cal.App.4th 28, 38, citing DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [[W]e review the lower courts ruling, not its reasoning; we may affirm that ruling if it was correct on any ground].)

^[3] Section 987.8, subdivision (f) provides, in part: Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. . . . ( 987.8, subd. (b).) If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county . . . . ( 987.8, subd. (e).) At an ability to pay hearing, the court shall consider a defendants present financial position. ( 987.8, subd. (g)(2)(A).)

^[4] Section 987.8, subdivision (g)(2)(B) mandates that [i]n no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendants reasonably discernible future financial position. Furthermore, the statute presumes that unless the court finds unusual circumstances, a defendant sentenced to state prison does not have a reasonably discernible future financial ability to reimburse the costs of his or her defense.

^[5] Because we strike the order for attorney fees on this ground, we need not address defendants further argument that there is insufficient evidence to support the amount of fees awarded.