P. v. Napolitan

Filed 10/22/07 P. v. Napolitan CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Pursuant to a negotiated disposition, defendant Thomas Anthony Napolitan pleaded no contest to three misdemeanors[1]: unauthorized use of a vehicle, driving on a suspended license, and using or being under the influence of a controlled substance. (Veh. Code, 10851, subd. (a), 14601.2, subd. (a); Health & Saf. Code, 11550, subd. (a).) That same day, defendant was placed on formal probation for two years, given credit for time served of 252 days, and was released from custody. Supervision fees were waived, due to defendants homelessness, but he was assessed a $110 restitution fund fine, a $207.55 criminal justice fee, a $100 lab analysis fee, and a $200 in attorney fees. Defendant challenges the imposition of attorney fees and the lab analysis fee. The People partially concede error. We find merit in defendants arguments. Therefore we will modify the judgment to strike the attorney fees order and reduce the laboratory fee order and, as modified, affirm the judgment.

STATEMENT OF FACTS

Inasmuch as defendants claims of error do not depend on the facts underlying his convictions, we summarize them very briefly. According to the testimony taken at the preliminary hearing, Officer Zuniga saw defendant driving a car. He detained defendant and ascertained that the car defendant was driving had been reported stolen. Also, defendants license had been suspended. From defendants appearance and demeanor, the officer determined that defendant was under the influence of a controlled substance.

DISCUSSION

1. Attorney Fees

Defendant argues that the trial court did not have sufficient evidence to find that he had the ability to pay attorney fees of $200. He notes that during the sentencing hearing, his attorney stated that defendant is homeless and he doesnt have any money. He asserts that no other evidence contradicts his counsels statement, and the court did not consider other factors that might bear on his ability to pay attorney fees, such as his future financial situation or his employment prospects. He does not specify the remedy he seeks.

The People, on the other hand, concede that the court failed to conduct the requisite statutory inquiry under Penal Code section 987.8, subdivision (b) and ask us to remand the case to the trial court for a hearing on defendants ability to pay. They do not address defendants substantial evidence claim.

Penal Code section 987.8 provides, in relevant part: 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).)

Ability to pay means the overall capability of the defendant to reimburse the costs or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [] (A) The defendants present financial position. [] (B) The defendants reasonably discernable future financial position. In 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 discernable future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernable future financial ability to reimburse costs of his or her defense. [] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [] (D) Any other factor or factors which may bear upon the defendants financial capability to reimburse the county for the costs of the legal assistance provided to the defendant. ( 987.8, subd. (g)(2).)

An order for attorney fees is not mandatory under Penal Code section 987.8, and a determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fees order. A finding of a present ability to pay need not be expressed, but may be implied through the content and conduct of the hearings. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.) While the finding of a present ability to pay may be implied, the attorney fees order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920.)

Here, we agree with defendant that the record contains no evidence to support an implied finding that defendant had the ability to pay $200 in attorney fees. At the time of the sentencing hearing, defendant had been in custody for the previous 168 days, apparently unable to post the $25,000 bail. The car he was driving when he was arrested did not belong to him. Nothing in the appellate record sheds any light on defendants financial situation or future prospects, except counsels statement that defendant did have an objection to formal probation because he is homeless and he doesnt have any money. He would be having trouble paying the fines and fees. The court evidently accepted counsels statement at face value, for it waived the supervision fees and informed defendant that [i]f you are a transient, you have to register as a transient in the police department and then notify them when you get an address. No probation report was ordered.

In sum, we find no evidence to support the courts attorney fee order. Given defendants homelessness and impecuniousness, we also find that in the interests of judicial economy and efficiency the appropriate action is to strike the order, rather than to remand for further proceedings.

2.      Laboratory Analysis Fee

Defendant asserts, and the People concede, that defendant should have been assessed $50 and not $100 as a lab analysis fee because he was convicted of only one of the enumerated code violations listed under Health and Safety Code section 11372.5. We accept the concession. Section 11372.5 provides, in relevant part, that any person convicted of a violation of Health and Safety Code section 11550 shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. Defendant was convicted of only one violation of section 11550. Therefore, the fee should be reduced to $50.

DISPOSITION

The trial courts attorney fees order is stricken and the laboratory analysis fee is reduced to $50. The trial court is directed to prepare an amended abstract of judgment. As modified, the judgment is affirmed.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Mihara, J.

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People v. Napolitan

H030963

[1] Defendant was originally charged with one felony and two misdemeanors.