P. v. Loudd
Filed 2/4/13 P. v. Loudd 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DARNELL RAYNARD LOUDD,
Defendant and Appellant.
C070661
(Super. Ct. No. 11F04071)
a pursuing police officer and misdemeanor driving on a suspended
license. The trial court suspended
imposition of sentence and placed defendant on five years’ formal probation on
various terms and conditions, including that he serve 270 days in jail. Because defendant had been represented by the
public defender, the trial court also made the following statement regarding
attorney fees at the sentencing hearing:
“I’m required to order the defendant to pay an attorney fee, if he has
the ability to pay. He must cooperate
with the Department of Revenue Recovery in the determination of his ability to
pay. Felony case through trial, the fee
is set at $3,175.â€
On appeal, defendant contends that
the court erred in ordering him to pay $3,175 in attorney fees because: (1) the court did not give him an opportunity
to challenge the amount of the fee reimbursement the court ordered; (2) there
was insufficient evidence in the record supporting that amount; and (3) the
court erroneously believed it was required
to order fee reimbursement.
Defendant also contends there was substantial evidence in the record
that he did not have the present or future ability to pay the attorney fees the
court ordered, and he further contends that the trial court improperly
delegated its authority to make a determination of his ability to pay to the
Department of Revenue Recovery (the department).
We conclude that all of defendant’s
arguments are without merit primarily because, contrary to defendant’s
foundational premise, the trial court did not actually order him to pay
statute, the court simply referred the matter to the department to inquire into
defendant’s ability to pay, prefatory to a further determination by the court
of whether defendant had the ability to pay for any or all of the cost of his
representation.
There was no error.
As applicable here, subdivision (b)
of Penal Code section 987.8 provides as follows: “In any case in which a defendant is
provided legal assistance . . . through the public defender . . . , upon
conclusion of the criminal proceedings
in the trial 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. . . . The court
may, in its discretion, order the defendant to appear before a county officer
designated by the court to make an inquiry into the ability of the defendant to
pay all or a portion of the legal assistance provided.†Subdivision (e) of the statute further
provides that “[i]f 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 in the manner
in which the court believes reasonable and compatible with the defendant’s
financial ability.â€
As the trial court here properly
recognized, under the foregoing statute the court must order a defendant to pay attorney fees for being represented
by the public defender if the court
determines that the defendant has the ability to pay. The statute also allows the court to order
the defendant to appear before a county officer to make an inquiry into the
defendant’s ability to pay. That is all
the trial court did here by ordering that defendant “must cooperate with the
Department of Revenue Recovery in the determination of his ability to pay.†There is nothing in the record that supports
reading this order as a delegation to the department of the power to
to pay, nor is there anything in the record that supports reading the court’s
statement as an actual order that
defendant pay. Instead, the court’s statement
is properly understood as simply a referral of the matter to the department to
make an inquiry into defendant’s ability to pay.
Defendant complains that “[n]o
provision was made for the Department of Revenue [Recovery] to report back to
the court prior to a final determination of the issue, and the court did not
set a further hearing on [defendant]’s ability to pay.†Even so, that does not mean further
proceedings were not contemplated in the event the department’s inquiry found
an ability to pay on the part of defendant.
Presumably the matter could have been calendared for a further hearing
following the department’s inquiry into the matter. Simply put, the fact that no further hearing
was set when the court referred the matter to the department does not support
defendant’s argument that the court improperly delegated its power to determine
defendant’s ability to pay to the department.
Because the trial court has not yet
ordered defendant to pay any amount
in attorney fees, there is nothing here for defendant to challenge. If the trial court ultimately does determine
that defendant has the ability to pay fees and orders defendant to do so, we
presume the trial court will make that determination and that order
consistently with the requirements of the law, and defendant will be able to
challenge the order at that time if he thinks the court has not done so. For now, there has been no fee order and
therefore there is no error to correct.
DISPOSITION
The judgment (order granting
probation) is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
