P. v. Snow
Filed 12/13/13 P. v. Snow CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DENNIS
ROBERT SNOW,
Defendant and Appellant.
A137497
(Contra
Costa County
Super. Ct. No. 4-175130-4)
Dennis
Robert Snow pleaded no contest to two felony counts. The trial court suspended imposition of
sentence, placed defendant on three years of formal probation, and ordered him to
reimburse the county in the amount of $200 for public defender services. Defendant contends the attorney fee order was
improperly imposed without any substantial
evidence he has the ability to pay the $200. We find the order was properly imposed
subject to a later determination of defendant’s ability to pay. However, we modify the felony order of
probation to make it consistent with the trial court’s oral pronouncement and its
separate written order on attorney fees.
As so modified, we affirm the judgment.
On
November 20, 2012, at 2:20 a.m., defendant was stopped by the police
after committing several Vehicle Code violations. The vehicle defendant was driving was
discovered to have been stolen. A search
of the vehicle uncovered 2.47 grams of methamphetamine.
Defendant
was charged by felony complaint with vehicle
theft (Veh. Code, § 10851, subd. (a); count one) and possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a); count two). He pleaded no contest to both counts. That same day, the court suspended imposition
of sentence and placed defendant on three years of formal probation,
conditioned on serving a jail term of 270 days with credit for time served. The court conditionally ordered that defendant
reimburse the county in the amount of $200 for public defender services as
follows: “[The court:] As far as the attorney’s fees, I am assessing
$200 for the public defender. We do have
them place a means of having a hearing on that and actually appearing in front
of a court on it. Printed on the forms
we have, we complied with everything required by that case, so that will be
assessed. It’s up to [defendant] to take
any action if he wants to challenge that one. [¶] [Defense counsel]: Your Honor, just for the record, I would be
objecting to the attorney fees.”
Defendant
timely appealed from his sentence.
Defendant
contends the order assessing him $200 for his court-appointed counsel fees must
be reversed because there is no evidence showing he had the ability to pay
those fees either at the time of sentencing or after he was released from
custody. According to defendant, “there
must be substantial evidence and a finding of an ability to pay before the court may order payment.” He states he did not have to prove inability
to pay.
Defendant
notes nothing in the probation report suggests he had assets or income. In fact, it shows he was unable to work
because he was in jail at the time of sentencing. The court ordered him to serve 148 more days
(net of presentence credits). At sentencing,
defendant explained he had quit his job a few weeks before his arrest on
account of having a rod in his leg which caused him pain.[1] He stated he would be applying for disability
and food assistance and did not know if he would be able to work after his
release. Having pleaded no contest to
two felonies, defendant contends his ability to find employment would be
seriously impeded regardless of his disability status.
The
flaw in defendant’s argument is that the trial court did not in fact make an
unconditional order assessing $200 in attorney fees against him. It ordered him to appear before the probation
collection unit within 20 working days after his release from custody for a
determination of the amount, if any, of the attorney fees he could pay, which
he had the right to challenge by requesting a court hearing. That procedure is consistent with the statute
authorizing such assessments, Penal Code section 987.8.
Penal
Code section 987.8 applies to any proceeding in which the defendant is represented
by a public defender or appointed counsel. (Pen. Code, § 987.8, subd. (i).) Subdivision (b) of the statute provides in
relevant part that in “any case in which a defendant is provided legal
assistance, . . . 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. The court may, in its discretion,
hold one such additional hearing within six months of the conclusion of the
criminal proceedings.
defendant to appear before a county officer designated by the court to make an
inquiry into the ability of the defendant to pay all or a portion of the legal
assistance provided.” (Italics
added.) The statute further provides,
“[i]f the defendant, after having been ordered to appear before a county
officer, has been given proper notice and fails to appear before a county
officer within 20 working days, the county officer shall recommend to the court
that the full cost of the legal assistance shall be ordered to be paid by the
defendant.” (Pen. Code, § 987.8, subd.
(d).) Finally, “[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 defendant’s financial ability.” (Pen. Code, § 987.8, subd. (e)(5).)
Here,
the trial court signed a written order on a preprinted form stating defendant
was ordered to report to the county probation collection unit within 20 working
days after his release from jail. The
order stated a county officer would interview defendant at that time “to
determine if you are able to pay all or part of the services of the attorney
appointed by the Court to handle your case. If the Probation Collection Unit finds that you
are able to pay a certain amount, and you do not agree, you have the right to a
hearing in this Court to decide what amount, if any, you must pay.” The order informed defendant he had a right to
be heard in person at the hearing, to present witnesses and other documentary
evidence, to confront and cross-examine adverse witnesses, and to have the
evidence against him disclosed to him. Finally,
the order stated that if defendant did not appear at the probation collection
unit as ordered, he waived his right to a hearing, and the court would enter a
judgment against him ordering him to pay for his attorney’s services. Defendant’s name is handwritten on the order
acknowledging its receipt and stating that he understood if he did not report
as ordered the court would thereafter enter judgment against him for the “TOTAL
COSTS OF LEGAL SERVICES OF [HIS] ATTORNEY.”
The
procedure followed by the trial court complies with Penal Code section 987.8. The statute does not require the court to give
notice and hold a hearing regarding a defendant’s ability to pay before
assessing a dollar amount for the services of appointed counsel. It specifically allows the court to have a
designated county agency first determine whether the defendant is able to pay
the assessed amount, subject to the defendant’s right to challenge the county
agency’s determination before the court if he or she disagrees with it. (Pen. Code, § 987.8, subds. (b), (d).) The trial court’s attorney fee order in this
case, including the order referring defendant to the collection unit and his
acknowledgment of it, complies with these procedures. However, the felony order of probation fails
to reflect the conditional nature of the trial court’s order on attorney fees, as
expressed in the trial court’s oral pronouncement at sentencing and its written
order referring defendant to the probation collection unit for a determination
of his ability to pay. The felony order
of probation should therefore be modified to state that defendant was referred
to the probation collection unit to determine his ability to pay attorney fees. Accordingly, we will amend the order of
probation in this one respect, and otherwise affirm the judgment. (People
v. Mitchell (2001) 26 Cal.4th 181, 185–187 [appellate court has inherent
power to correct clerical error on its own motion].)
DISPOSITION
The
felony order of probation is modified to add the sentence: “Defendant is referred to the Probation
Collection Unit for a determination of his ability to pay attorney fees in the
amount of $200.” As so modified, the
judgment is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Sepulveda, J.*
[1] This information was elicited
on voir dire by the court after defense counsel asked for an immediate
determination of defendant’s ability to pay a mandatory restitution fee and a
criminal justice administration (CJA) fee.
The court declined to find defendant was unable to pay the restitution
fine, citing the possibility defendant could be employed again following his
release. The court waived the CJA fee
due to noncompliance with the paperwork requirements for that fee.
* Retired
Associate Justice of the Court of Appeal, First Appellate District assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
