P. v. Rivera

Filed 4/28/08 P. v. Rivera CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Oswaldo Rivera appeals from a judgment following his conviction, after jury trial, of carjacking and attempted second degree robbery. (Pen. Code,  215, subd. (a); 664, 211.)[1] The trial court selected a five-year midterm sentence for each crime and stayed the attempted robbery sentence pursuant to section 654. The court ordered appellant to pay attorney fees in the amount of $268 ( 987.8); a $20 court security assessment ( 1465.8, subd. (a)(1)); a $200 restitution fine ( 1202.4, subd. (b)); and a parole restitution fine which the court stayed, with the stay to become permanent upon the successful completion of parole ( 1202.45). Appellant contends that the court violated his constitutional rights by excluding evidence and ordering him to pay attorney fees. We strike the attorney fees order because there is not evidence to rebut the statutory presumption that appellant lacks the financial ability to pay. ( 987.8, subd. (g)(2)(B).) As modified, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Teuntje Jouvenaar drove her 2005 silver Ford Focus to her workplace in Bellflower, California, on July 18, 2006, just before 8:00 a.m. She parked the car and gathered her belongings. Before she stepped from the car, appellant approached and asked her for money. When Jouvenaar asked why he needed money, he responded, "I'm hungry." She told him to wait 10 minutes for her to get some food when a nearby hamburger place would be open. Seeing something black between appellant and her car that might be a gun, she stepped from the car. Appellant pulled the keys from her hands, dropped the car's remote device, picked it up, entered the car, and drove away.

On July 20, 2006, while on patrol duty, Long Beach Police Officers Tim Van Coutren and Jason Kirk encountered a 2005 silver Ford Focus in a laundromat parking lot on Fourth Street in Long Beach. Appellant sat in the driver's seat of the Focus and three other men, including Jose Santiago, stood outside. The officers recovered car keys from appellant and Santiago. The Focus contained Santiago's personal property but none of appellant's personal property.

After recovering the Focus, law enforcement officers learned that it belonged to Jouvenaar. On July 25, 2006, Jouvenaar viewed a six-pack photographic display. Without hesitating, she identified a photograph of appellant and stated that he was the person who took her car at gun point.

The keys recovered from appellant neither unlocked the door nor started the ignition of Jouvenaar's car. The keys recovered from Santiago unlocked her car door and started its engine.

Appellant testified at trial. He claimed that he never saw Jouvenaar before she testified at the preliminary hearing. He denied that he carjacked her or tried to rob her on July 18, 2006, and further denied that he was in Bellflower on that date. He was homeless in July 2006. From July 18 through July 20, he stayed inside the laundromat on Fourth Street during the day. At night, he slept outside. On July 20, Santiago allowed appellant to sleep inside the Focus. The keys recovered from appellant's pocket on July 20 belonged to his girlfriend.

DISCUSSION

Before trial, appellant's counsel sought to introduce a statement that Santiago made after learning that the Focus was stolen and that he would be charged with receiving stolen property. Santiago then claimed that "'a black man told [him] that the repo man was looking for the car but [he] could have the car if he paid [$]300 a month for it.'" Counsel argued that the statement was admissible as a declaration against Santiago's penal interest. The court excluded the statement. Appellant contends that the court erred by excluding Santiago's statement, which was admissible as a statement against penal interest, and thereby denied him his federal constitutional rights to present a defense and to due process of law. We disagree.

The constitutional right to present a defense does not encompass the right to present inadmissible evidence. (People v. Cudjo (1993) 6 Cal.4th 585, 611; see also People v. Ayala (2000) 23 Cal.4th 225, 266 [defendant has no right to present unreliable hearsay evidence that is inadmissible under any statutory exception to hearsay rule].) Here, the trial court concluded that Santiago's statement was not admissible under Evidence Code section 1230. That section provides in pertinent part as follows: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of civil or criminal liability, . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."

In arguing that Santiago's statement was against appellant's penal interest, trial counsel asserted that Santiago claimed to have paid $300 for the Focus. Appellant now argues that $300 is such a "disproportionately low price" for a 2005 car that it would "justify the inference that [it] was received with the knowledge that it [was] stolen." The record does not support appellant's argument. As quoted to the court below, Santiago gave the police a statement indicating that a man told him that he "'could have the car if he paid [$]300 a month for it.'" (Italics added.) He did not claim that he purchased it for a total price of $300. The trial court correctly concluded that Santiago's statement was not admissible under Evidence Code section 1230.

Appellant also argues that the trial court denied him due process by failing to conduct a hearing and receive evidence concerning his ability to pay before ordering him to pay attorney fees. He was sentenced to five years in state prison and ordered to pay $268 in attorney fees. The trial court stated: "Defendant to pay a small amount of attorney's fees . . . ." The probation report had made no recommendation regarding attorney fees, although it had recommended the payment of a restitution fine.

Section 987.8 provides that a defendant who has the ability to pay may be ordered to reimburse the county for the cost of his court-appointed attorney. (People v. Smith (2000) 81 Cal.App.4th 630, 637.) Section 987.8, subdivision (b) states in pertinent part: "[T]he 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" of the legal assistance provided by the public defender or court-appointed counsel. Unless the court finds "unusual circumstances," it is presumed that a defendant sentenced to state prison does not have the financial ability to pay for the cost of his defense. (Id., subd. (g)(2)(B).)

In this case there are no unusual circumstances to rebut the presumption that appellant lacks the financial ability to pay attorney fees. The Attorney General argues that appellant should be required to pay the modest fee imposed because "[a]ccording to his own statements in the probation report, appellant contributed $300 toward his mother's rent and paid child support of $350 per month when he could" and notes that while unemployed at the time of trial, appellant "had worked for four years for a national moving company at $1,600 per month and, for 10 years before that, as an $11-per-hour laborer." The same report also indicates that appellant had no assets and total estimated liabilities of $8,000, consisting of "back child support payments." This evidence is not equivalent to the "showing of unusual circumstances" in People v. Flores (2003) 30 Cal.4th 1059, 1068, where the court upheld an attorney fee assessment. In Flores, "according to the probation report, defendant possessed $1,500 worth of jewelry at the time of sentencing." (Ibid.)

The Attorney General contends that we should remand this matter for a hearing unless we uphold the assessment of attorney fees. Based on appellant's unemployed status at the time of trial, the five-year prison sentence, and the modest amount of fees assessed, a remand to determine whether there are "unusual circumstances" of financial ability to pay would be counter-productive. ( 987.8, subd. (g)(2)(B).)

We strike the order assessing $268 in attorney fees. The judgment, as modified, is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Roger Ito, Judge

Superior Court County of Los Angeles

______________________________

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.