P. v.
Filed 1/10/13 P. v. Hudson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM
EDWIN HUDSON,
Defendant and Appellant.
E055213
(Super.Ct.No. FMB900551)
OPINION
APPEAL from the Superior Court of
County. Rodney A.
Cortez, Judge. Affirmed with directions.
Rex
Williams, 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, and Kevin Vienna, Deputy
Attorney General, for Plaintiff and Respondent.
Defendant William
Hudson seeks reversal of the trial court’s orders that he pay an attorney fee
of $150 plus $505 for the cost of a presentence investigative report. He argues that the trial court erred by
failing to make a finding regarding his ability to pay the assessments as
required by Penal Code section 987.8.
to conduct a hearing on whether defendant has the financial ability to pay the
challenged fees.
On November 2, 2010, defendant pled guilty to
being a felon in possession of a firearm
(§ 12021, subd. (a)(1)), and to possession of methamphetamine (Health &
Saf. Code § 11377, subd. (a)). In
addition to signing the plea form, defendant answered “Yes, your Honor†when
the court asked if he had reviewed the case with his attorney and if he
understood all its terms. He gave the
same answer when the court asked if he understood that at sentencing, if
probation was granted, “there will be additional terms which we will not go
over today?†Near the end of the
hearing, defendant asked the court if he could be released until sentencing day
because “I am in the process of moving my wife and my horses.†The court denied defendant’s request, ordered
a probation report, and set sentencing for December
15, 2010.
The probation
report was received by the court on December
8, 2010. It showed that
defendant was 62 years old, had graduated from high school and served one year
in the Army Corps of Engineers, had special training as a heavy equipment
operator, and had been employed by a construction company for 10 years. He had left his job because there was “no
work.†Defendant told the interviewing
probation officer that on the day of his arrest he and his wife had been
arguing about paying the bills and other financial stresses. The rifles and shotgun police found in his house,
he said, belonged to his wife. He had
been buying used jeans and thought maybe the methamphetamine police found in
his pocket was there when he bought them.
The report
concluded with a list of recommended fees, fines, and other assessments, including
an attorney’s fee of $150 and a cost of investigation and report preparation
assessment of $505. Inexplicably, the
report contained conflicting recommendations about his ability to pay the cost
of the section 1203.1b presentence investigation and report. The first recommendation was for a finding
that defendant had the ability to pay
the cost; but it was followed immediately by a recommendation for a finding
that he did not have the ability to
pay the cost.
Defendant was
sentenced on December 15, 2010. After reading and considering the probation
report, the court granted defendant three years of supervised probation with
terms and conditions. Mirroring the
recommendations in the report, the court found that he had the ability to pay
the recommended defense counsel fee and both had and did not have the cost of
conducting the pre-sentence investigation and preparing the report. The court also found that defendant had the
ability to pay a variety of other statutory fees, costs, and fines. Pursuant to subdivision (d) of section
1203.1, the total monthly payment for all ordered amounts was set at $50 per
month. Defense counsel did not object to
any of the fees or costs.
name="_ftnref3" title="">[3]
On
appeal, defendant argues separately that the court erred by (1) not granting
him a hearing on his ability to pay attorney’s fees, and (2) not granting him a
hearing on his ability to pay the costs of the presentence investigation and
report. He wants both assessments
reversed. The People answer that
defendant has forfeited his right to contest the fees by failing to object to
them in the trial court. In the event we
find that the issue has not been forfeited, the People ask us to remand the
case to the trial court for an ability-to-pay hearing.
Generally, in the
only “claims of error properly raised below and preserved by the parties are
reviewable on appeal.†(
351 (Scott).) In People
v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 (Pacheco) the sixth appellate district found that booking fees,
probation supervision fees, and court security fees are not are not forfeited
by a failure to object below because they are all, in essence, a challenge to
the sufficiency of the evidence to support the trial court’s order. (Ibid.) A defendant’s ability to pay may be express
or implied, but in either case, the finding must be supported by substantial
evidence.
title="">[4] (Pacheco,
at p. 1398.)
Section
987.8 allows a court to determine whether a defendant has any assets subject to
attachment for the payment of attorney’s fees, whether private counsel or the
public defender. However, where a
defendant’s attorney asks the court to impose fees on the client for the
attorney’s own benefit or the benefit of his or her employer (including the
public defender’s office), the waiver rule does not apply. (People
v. Viray (2005) 134 Cal.App.4th 1186 (Viray).) Under such circumstances, the attorney’s conflict
of interest essentially renders the client unrepresented and a client “cannot
be vicariously charged with her erstwhile counsel’s failure to object to an
order reimbursing his own fees.†(
p. 1216, fn 15.)
Defendant’s
attorney, a deputy public defender, did not object to the $150 attorney’s fee
imposed on his client and the matter must be remanded to the trial court for a
determination of defendant’s ability to pay this fee.
Probation Investigation and Report Fee
Similarly,
section 1203.1b provides that, depending on his or her ability to pay, a
defendant may be required to pay the reasonable cost of a presentence
investigation and probation report.
(§1203.1b, subd. (a).) The amount
of the cost and the payment schedule is to be determined by the probation
officer, but the defendant must be informed that he or she has the right to
counsel and to a trial court hearing to contest the amount. (Ibid.) Any waiver of the right of such a hearing
must be knowing and intelligent. (
If there is substantial evidence in the record to support an inference
that the defendant had the ability to pay a section 1203.1b probation-related
assessment which could otherwise have been lawfully imposed, the waiver rule of
Scott may apply. (People
v. Valtakis (2003) 105 Cal.App.4th 1066, 1072, 1076 (Valtakis).)
Parties may not “stand silent as the court imposes a [modest]
fee . . . and then complain for the first time on appeal
that some aspect of the statutory procedure was not followed[.]†(Valtakis,
at p. 1075.) The waiver rule applies to
the People as well as to defendants. (
302-303.)
In this case,
even though there was a timely probation report giving defendant notice of all
the recommended assessments, the evidence about his ability to pay them was
contradictory and incomplete. Defendant
appeared to have had significant assets—horses, and perhaps guns—but also
appeared to have had financial difficulties.
He had education and work experience, but was unemployed at the time of
sentencing and there was no information about his future employment
prospects. Moreover, the probation
report contained contradictory recommendations regarding his ability to pay the
cost of the presentence investigation and report. The report also did not say whether defendant
had been advised of his right to request a court hearing to determine his
ability to pay.
The
matter is remanded to the trial court with instructions to hold a hearing
regarding defendant’s ability to pay attorney’s fees and the cost of the
presentence investigation and probation report.
In all other
respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting
P. J.
KING
J.
name="_ftn1" title=""> [1]
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Defendant has not numbered the pages of his
opening brief as required by California Rules of Court, rule 8.928 (c)(7). We have hand-numbered them for him, beginning
with the face page as page 1.
