P. v. Mack

Filed 5/23/08 P. v. Mack CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Alex Ricciardulli, Judge. Affirmed as modified.

Valerie G. Wass, 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, Assistant Attorney General, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________

Juan Taliphora Mack appeals from the judgment entered upon his negotiated plea of no contest to the sale, transportation or offer to sell cocaine (Health & Saf. Code,  11352, subd. (a)). He was sentenced to three years in prison. He contends that the trial court erred by ordering him to pay $95 in attorney fees pursuant to Penal Code section 987.8^[1]without giving him notice and holding a hearing to determine his ability to pay. On this record, we will strike the order imposing attorney fees.

FACTS AND PROCEDURAL BACKGROUND

The record discloses that on November 9, 2006, appellant and codefendants Remle Howard and Patrick Dean participated in the sale of rock cocaine to an undercover Los Angeles police officer.^[2] Appellant was charged with the sale, transportation or offer to sell a controlled substance. It was further alleged that he had four prior convictions within the meaning of section 667.5, subdivision (b) and one prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a).

Appellant, who was represented by a bar panel attorney, entered into a plea agreement under which he pled no contest to the charged offense in return for the low term of three years in prison. Prior to sentencing, appellant, who was then represented by a different bar panel attorney, moved to withdraw his no contest plea on the grounds that his first attorney provided ineffective assistance of counsel and that his plea was not free and voluntary. The motion was denied. At sentencing, the trial court imposed various fines and fees and ordered appellant to pay attorney fees in the amount of $95. There was no objection to the imposition of any of the fines or fees.

DISCUSSION

Appellant contends that the order that he pay attorney fees must be stricken because the trial court failed to afford him notice, a hearing and a determination of his ability to pay as required by section 987.8, and because the record contains no facts on which a determination of his ability to pay could be made. Under the circumstances presented here, we agree.

Section 987.8, subdivision (b) provides, in pertinent part, as follows: In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, 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. . . . Under subdivision (e) of that section, [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 defendants financial ability. . . .

At the hearing required by subdivision (b) of section 987.8, the defendant has the right to be heard in person, to present witnesses and documentary evidence, to confront and cross-examine witnesses, to obtain disclosure of the evidence against him, and to obtain a written statement of the findings of the court. ( 987.8, subd. (e).)

Preliminarily, we address, and reject, respondents claim that the issue has been forfeited. The court in People v.Lopez (2005) 129 Cal.App.4th 1508, 1537, addressing a challenge to the sufficiency of evidence supporting an implied finding of ability to pay attorney fees where no objection had been raised in the trial court, stated that the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal. (People v. Rodriguez (1998) 17 Cal.4th 253, 262 . . . .)^[3]

As respondent acknowledges, there is no substantial evidence to support the implied determination that appellant had the ability to pay.

Section 987.8, subdivision (g)(2) defines ability to pay as follows: 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 discernible 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 discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the 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. (Italics added.)

Appellant was sentenced to three years in prison. The trial court did not make an express finding of unusual circumstances, and thus, under section 987.8, subdivision (g)(2)(B), it could not order appellant to pay attorney fees. (People v.Lopez, supra, 129 Cal.App.4th at p. 1537.) As to the other factors to be considered under subdivision (g)(2), the probation report stated that although appellant had been employed as a truck driver and had secondary income from freelance writing, he had no assets and $1,350 in liabilities, his monthly rent. There was no indication that appellants wife had income or assets. (See People v.Whisenand (1995) 37 Cal.App.4th 1383, 1392-1393.) An incarcerated defendant who may be found to have the ability to pay a restitution fine, based on prison wages, may still lack the ability to pay attorney fees. (See People v.Douglas (1995) 39 Cal.App.4th 1385, 1397.) While the amount appellant was ordered to pay, $95, was minimal by any standard (see, e.g., People v.Smith (2000) 81 Cal.App.4th 630, 635 [over $20,000 in attorney fees]; People v.Flores (2003) 30 Cal.4th 1059, 1062 [$5,000 in attorney fees]; People v.Lopez, supra, at p. 1536 [$1,000 in attorney fees]; People v.Whisenand, supra, at p. 1392 [$800 in attorney fees]), we find in accordance with the governing statute that there was no substantial evidence to support the order.

This is not an appropriate case for remand. This case is unlike People v. Flores, supra, 30 Cal.4th 1059, in which a showing [on remand] of unusual circumstances was conceivable because the probation report indicated that the defendant possessed $1,500 worth of jewelry at the time of sentencing. (Id. at p. 1068.) Under the circumstances presented here, including appellants incarceration, and in light of the amount of the reimbursement order, further judicial proceedings would generate costs out of proportion to the fee imposed. In the interests of judicial economy, we will strike the order imposing attorney fees.

DISPOSITION

The order imposing $95 in attorney fees is stricken. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Neither Howard nor Dean is a party to this appeal.

^[3] The Lopez court prefaced its statement of the rule that sufficiency may be raised for the first time on appeal with the words In the absence of a guilty plea. We do not construe this language as precluding review of the sufficiency of evidence underlying an order of attorney fees merely because a defendant entered a guilty or no contest plea to the underlying charge.