P. v. Shovey
Filed 10/18/13 P. v. Shovey CA4/2
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
KEITH ALLEN
SHOVEY,
Defendant and Appellant.
E056139
(Super.Ct.No. FMB1200069)
OPINION
APPEAL from the Superior Court of San Bernardino
County. Rodney A.
Cortez, Judge. Affirmed with directions.
Melanie K. Dorian, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Melissa Mandel, and Scott C. Taylor, Deputy
Attorneys General, for Plaintiff and Respondent.
Introduction
Defendant Keith Allen Shovey
claims that because he did not receive notice or a hearing prior to the trial
court’s imposition of a $500 appointed attorney compensation fee, it must be
stricken. In the alternative, relying
upon People v. Pacheco (2010) 187
Cal.App.4th 1392 (Pacheco), he
asserts that there was insufficient evidence to support the order and that the matter
must be remanded for a hearing on whether he has the ability to pay the
fee. The People answer that defendant
forfeited his right to notice and a hearing by failing to object below, but
concede that the matter must be remanded for an ability to pay hearing on
sufficiency of the evidence grounds. In
a one-page letter reply brief filed March 21,
2013,
appellate counsel asks us to “accept respondent’s concession.”
Because the trial court
failed to provide defendant the notice and hearing required by Penal Code
section 987.8, and because we find defendant’s due process claim was not
forfeited, we will remand the matter for the trial court to determine his
ability to pay the disputed fee.
Facts
and procedural history[1]
This appeal involves two
cases. The first, FMB1000504, concerns a
drug-possession offense committed on December 22, 2010. The second, FMB1200069, concerns a weapons
possession offense committed on February 11, 2012. The issue presented does not turn on the
facts of defendant’s offenses, and we summarize them only briefly.
On December 22, 2010,
defendant was arrested while in possession of methamphetamine.
Five days later, on December
27, 2010, defendant signed an “Advisement of Legal Rights” form
(Advisement). Paragraph 1 of the
Advisement told defendant that he had a right to an attorney and that if he was
unable to hire one the court would appoint one to represent him “without
charge.” The Advisement also stated, “I
understand that at the end of this case the Court, after a hearing, will decide
if I have the ability to pay for all or a part of the cost of my appointed
attorney and will order me to pay what I can afford.” Paragraph 2 of the Advisement told him that,
while he had the right to represent himself, doing so was “almost always
unwise” and warned that he might be unable to properly defend himself.
On January 4, 2011,
defendant pled guilty to one count of possession of a controlled substance
(Health and Saf. Code § 11377, subd. (a)), and admitted two prison priors (§
667.5, subd. (b)).[2] In exchange for his plea, the court referred
him to probation and to drug court. The
minute order indicates that defendant was referred to probation for an
investigation and report, but no report was filed. On January 21, 2011, defendant signed an
Advisement identical to the one he had signed on December 27, 2010.
Eight months later, on
August 15, 2011, defendant was granted 36 months of probation with terms and
conditions. Term nine required that he
“[n]either possess nor have under [his] control any dangerous or deadly
weapons . . . .”
After reading the terms, defendant confirmed his understanding and
acceptance of each of them. Without any
discussion of his financial status or the reasonableness of the proposed fee,
the trial court ordered defendant to pay, among other fees and fines, a $500
“appointed counsel fee.” Defense counsel
did not object to any of the terms or fees.[3] There was no probation report and no
discussion about defendant’s financial status, but the minute order stated that
the appointed counsel fee was “Based on the defendant’s ability to
pay . . . .”[4]
FMB1200069
On February 11, 2012,
defendant was arrested while in possession of a fixed-blade knife concealed in
his pocket.
On February 14, 2012, the court
re-appointed the public defender for case number 1000504 and the next day,
February 15, 2012, appointed the public defender to represent defendant in case
number 1200069. On both days, defendant
signed additional copies of the same Advisement he had signed in FMB1000504 in
December 2010 and August 2011.
This time defendant was
(apparently) also given an “Advisement of Court Appointed Counsel Fees Notice”
(the Notice).[5] The Notice told defendant he would be
referred to a county financial officer for evaluation and, if he disagreed with
the financial officer’s finding that he could pay all or a part of the costs of
his defense, he would be given the opportunity to request a hearing before the
court. Like the Advisements, the Notice
indicated that an order for attorney fees would be based on the
pay them.
On February 21, 2012,
defendant admitted to carrying a concealed dirk or dagger in violation of
section 21310. In exchange for his plea,
the court sentenced him to an un-split total of five years eight months in
“county jail prison” pursuant to subdivision (h)(5)(B) of section 1170. The court calculated the sentence as follows:
five years for his convictions in case FMB1000504 (the aggravated term of three
years for the principal [drug possession] count, plus one consecutive year for
each prison prior); plus eight consecutive months (1/3 the midterm) for his
section 21310 offense in case number FMB1200069.
As it had done in FMB1000504
on August 15, 2011, and again with no objection from defense counsel and no
discussion of defendant’s financial status, the court imposed a $500 appointed
counsel fee.
Throughout the proceedings
in both cases, defendant was represented by attorneys from the Public
Defender’s office.
Discussion
“‘[P]roceedings to assess
attorney’s fees against a criminal defendant involve the taking of property,
and therefore require due process of law,
including notice and a hearing.’
[Citations.]” (
62, 72.) “The fundamental requisite of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner. [Citations.]” (Cordova
v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 1531 (Cordova).)
In California, the procedure
for determining a criminal defendant’s ability to reimburse the county for the
services of court-appointed counsel is outlined in section 987.8. Subdivision (f) of the statute provides in
relevant 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,
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.” (Italics
added.)
Subdivision (g)(2) defines
“ability to pay” as the “overall capability of the defendant to reimburse the
costs, or a portion of the costs, of the legal assistance provided to him”
based on, among other factors: the defendant’s present financial position
(§ 987.8, subd. (g)(2)(A)); his reasonably discernable financial position
for the next six months (§ 987.8, subd. (g)(2)(B)); and the likelihood that he
will obtain employment within six months from the date of the hearing. (§ 987.8, subd. (g)(2)(C).)
Notice
Here, at the beginning of
his case, via the Advisements and the Notice, defendant was told that he might
later be required to pay for the costs of his defense. But while the Advisements encouraged him to
accept appointed counsel by warning him of the pitfalls of self-representation,
they also promised that he would be required to pay for his attorney only if
the court determined that he had the financial ability to do so. Similarly, while the Notice told him he would
be given the opportunity for a court hearing if he wished to dispute a finding
by a county financial officer that he could pay part or all of defense costs,
he was never sent for the predicate evaluation.
None of these documents suggested that he should be prepared to present
evidence regarding his financial status at any particular time or place; they
simply embodied written promises of the procedures he could expect the court to
follow at some point before requiring him to pay for his attorney. And he was never told that the court intended
to impose a $500 attorney fee at the sentencing hearing, where he should be
prepared to discuss his finances.
Hearing
There is no evidence in the
record that defendant was given even a rudimentary hearing about his ability to
pay attorney fees, much less a meaningful opportunity to be heard on the
issue. There was no probation report,
and defendant was never referred to a county financial officer for an
evaluation. The court did not ask
defendant about his present financial situation, his foreseeable financial
situation for the next six months, or his prospects for employment, and his
attorney did not raise these questions.
The court simply imposed the $500 fee without making or soliciting
comment about its reasonableness or defendant’s ability to pay it.
We conclude that defendant
did not receive the notice and hearing regarding his ability to pay attorney
fees required by section 987.8.
The People do not disagree
that defendant was denied the notice and hearing protections of section 987.8,
but argue that his rights under the statute were forfeited by his attorney’s
failure to object to the fee at the time it was imposed. We disagree.
The People are correct that,
generally, in the interests of fairness and judicial economy, only claims of
error properly raised below and preserved by the parties are reviewable on
appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 (
be forfeited in criminal as well as civil cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to determine
it.’”” (People v. McCullough (2013) 56 Cal.4th 589, 593 (
parties to bring errors to the attention of the trial court, so that they may
be corrected. [Citation.]’ [Citations.]”
(Sheena K. at p. 881.)
“However, neither
forfeiture nor application of the forfeiture rule is automatic. [Citation.]
Competing concerns may cause an appellate court to conclude that an
objection has not been forfeited.
[Citations.]” (
In our view, one of these “competing concerns” arises when appointed
counsel fails to object to a fee that inures to counsel’s own benefit or to the
benefit of his or her employer. (
1186, 1214 (Viray).) Under such circumstances, the attorney’s
conflict of interest essentially renders the client unrepresented and a client
“cannot be vicariously charged with [his or her] erstwhile counsel’s failure to
object to an order reimbursing [his or her] own fees.” (Ibid.)
Nor does the conflict
disappear just because the attorney is a salaried employee of the state. “[T]he spectacle of an attorney representing
a client in connection with an order requiring that client to pay for the
attorney’s services, however attenuated
the connection may be in fact, carries the patent appearance of at least a
vicarious adversity of interests.” (
not directly depend upon his client’s paying a fee should at least remind the
court to conduct the financial-status hearing to which he knows the client is
entitled.
The People attempt to
distinguish Viray by noting that in
that case the public defender asked the court to impose a hefty fee ($9,200),
while here, on its own motion, the court imposed only a “generic” amount of
$500. (Viray, supra, 134 Cal.App.4th at pp. 1213-1214.) But section 987.8 does not distinguish among
fees based on the amounts imposed and does not exempt a “generic” fee from its
mandates. The trial court is required to
determine an individual defendant’s “overall capability to reimburse the costs
of the legal assistance provided to him” before any attorney fee is
imposed. (§ 987.8, subd.
(g)(2).) Some defendants might easily be
able to pay a $500 fee, but the overall financial capability of a destitute
person might not support even that relatively modest amount.[6]
Throughout the proceedings
in this case, not one of defendant’s appointed attorneys raised the issue of
notice or the ability to pay attorney’s fees.
There was no objection to the fee, no request for the court to inquire
about defendant’s finances or refer him to the county financial officer, and no
reminder to the court that the client was entitled to an ability-to-pay hearing
under the provisions of section 987.8.
In such a situation, “it is
absurd to rely on the conduct of the attorney to impose a procedural forfeiture
upon the client,” and we decline to do so.
(Viray, supra, 134 Cal.App.4th
at p. 1216.)
Relying, as does defendant,
on Pacheco, the People
be remanded on sufficiency of the evidence grounds. We address this argument briefly to emphasize
that, although it is true that the record contains no evidence regarding
defendant’s financial status, it is not on that basis that we remand the
case.
In its recent decision concerning
booking fees, the California Supreme Court unanimously disapproved the
“substantial evidence” reasoning of Pacheco
as a basis for failing to follow the waiver rule in most ability-to-pay
determinations. (McCullough, supra, 56 Cal.4th at pp. 599-600.) Ability to pay, the Court pointed out, is
largely a factual determination, and a defendant “may not
‘transform . . . a factual claim into a legal one by
asserting the record’s deficiency as a legal error.’ [Citation.]
By ‘failing to object on the basis of his [ability] to pay,’ defendant
forfeits both his claim of factual error and the dependent claim challenging
‘the adequacy of the record on that point.’
[Citations.]” (
We remand this case not on
the sufficiency of the evidence grounds disapproved in McCullough. We remand
because we find that a “competing concern”—the appearance of a possible
conflict of interest on the part of appointed counsel—means that defendant was
denied due process rights to notice
and a meaningful opportunity to be heard regarding his ability to pay attorney
fees. Accordingly, his right to appeal
the fee has not been forfeited. (
Cal.App.3d at p. 1531.) Defense counsel
may not remain silent while the court, without any inquiry about his client’s
ability to pay, orders the payment of the attorney’s own fees. (See People
v. Flores (2003) 30 Cal.4th 1059, 1068 [remand is the proper remedy when
the trial court fails to give a defendant the notice and hearing required by
section 987.8]; accord, McCullough at
p. 593.)
Disposition
The matter is remanded to
the trial court with instructions to conduct a noticed hearing pursuant to the
provisions of section 987.8 subdivisions (b) and (g), to determine defendant’s
ability to pay appointed counsel fees.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting
P. J.
RICHLI
J.
[1]
Because there was no probation report, we take the underlying facts, in
part, from the police reports.
[2] All further statutory references are to the
Penal Code unless otherwise indicated.
