P. v. Smith
Filed 12/31/09 P. v. Smith CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. MARSHALL DAVID SMITH, Defendant and Appellant. | E048131 (Super.Ct.No. FSB057246) OPINION |
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed as modified.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
I
INTRODUCTION
Around December of 2005, defendant and appellant Marshall Smith began having a sexual relationship with his biological daughter, Jane Doe, a minor under the age of 16. The relationship included sexual intercourse and oral copulation. The relationship continued through March or April of 2006.
On December 17, 2007, an information was filed against defendant. The information charged defendant with four counts of unlawful sexual intercourse with a minor under the age of 16 years under Penal Code[1]section 261.5, subdivision (d) (counts 14); and four counts of unlawful oral copulation of a person under 16 under section 288a, subdivision (b)(2) (counts 58). The information also alleged that defendant had one prison prior under section 667.5, subdivision (b); and one strike prior under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).
On February 6, 2009, the trial court denied defendants motion under People v. Marsden (1970) 2 Cal.3d 118. Defendant also made a request to proceed in propria persona, but later withdrew his request at the same hearing.
On February 19, 2009, defendant pleaded guilty to counts 1 through 8 and admitted the strike and prison priors.
On February 27, 2009, in accordance with the plea agreement, the trial court sentenced defendant to 16 years four months in state prison: four years (low term) on count 1 (deemed principal count); consecutive two years (one-third midterm) on counts 2 through 4; consecutive terms of one year four months (one-third midterm) on counts 5 through 8; and an additional one-year term for the prison prior.
On April 8, 2009, defendant filed a notice of appeal and requested a certificate of probable cause. The trial court denied defendants request for a certificate of probable cause.
On April 22, 2009, defendant filed an amended notice of appeal and requested a certificate of probable cause. The court again denied the request for a certificate of probable cause.
II
ANALYSIS
Defendants sole contention on appeal is that the trial court erred in imposing an order that defendant pay $150 in appointed counsel costs under section 987.8, without conducting a hearing. The People agree with defendant.
An assessment of attorneys fees against a criminal defendant involves the taking of property, triggering constitutional concerns. Due process, therefore, requires that the defendant be afforded notice and a hearing before such a taking occurs. (People v. Amor (1974) 12 Cal.3d 20, 29-30; People v. Phillips (1994) 25 Cal.App.4th 62, 72.)
Section 987.8 sets forth the statutory procedure for ascertaining a criminal defendants ability to repay the county for the cost of services rendered by court-appointed counsel. It includes provisions for notice and a hearing to determine the defendants present ability to pay such fees. (Id., subd. (b).)
The failure to conduct a hearing to determine whether a defendant can pay for appointed counsel fees under section 987.8 requires a remand for such a hearing. (See People v. Flores (2003) 30 Cal.4th 1059, 1068-1069 [ where trial court fails to conduct hearing on defendants ability to pay under section 987.8, appellate court properly remands to allow the trial court to make an informed decision].)
Here, there is no evidence in the record to suggest that the trial court complied with the provisions of section 987.8, subdivision (f), by advising defendant at his arraignment that a determination of his ability to pay for the cost of counsel would be made at the conclusion of criminal proceedings, or with the provisions of section 987.8 that come into play once criminal proceedings have concluded. At no time prior to sentencing was defendant given notice that a hearing would be held to determine his ability to reimburse the county for the cost of his defense, and no portion of the sentencing hearing was dedicated to an ascertainment or discussion of defendants ability to pay for the cost of his defense. The court simply announced that defendant would be responsible for paying $150 in court-appointed counsel fees. In addition, there is no probation report in this case which assessed defendants ability to pay. In sum, the record in this case is completely devoid of any showing of compliance with section 987.8, subdivisions (b), (d), (e) and (f).
The question remaining is whether this is an appropriate case for remand. In this case, both parties agree that it would be a waste of judicial resources to remand for further proceedings given the negligible amount awarded, $150, and because there is no evidence to suggest defendant has the ability to pay for appointed counsel fees. We agree. Judicial economy compels us to strike the order imposing attorneys fees. Therefore, we shall affirm the judgment and direct the trial court to strike the order for payment of appointed counsel fees.
III
DISPOSITION
The judgment is modified to strike the attorneys fees award of $150. The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. ( 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Ramirez
P.J.
/s/ King
J.
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[1]All statutory references are to the Penal Code unless otherwise specified.
