Opinion
F071645
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. KIM WAYNE COLLINS, Defendant and Appellant.
Allan Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF011469A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Kenneth G. Pritchard, Judge. Allan Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Detjen, J.
-ooOoo-
Appellant, Kim Wayne Collins pled no contest to discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a)). On March 18, 2015, the court suspended imposition of sentence and placed Collins on three year's felony probation.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, Collins contends the evidence is insufficient to support the court's finding that he had the ability to pay $225 for attorney's fees. We agree.
FACTS
On October 25, 2014, Collins was arrested after he discharged a gun in the bedroom of an apartment towards the living room where two children were located.
On October 28, 2014, the Kern County District Attorney filed a complaint charging Collins with discharging a firearm in a grossly and negligent manner (count 1) and two counts of child endangerment likely to produce great bodily injury (count 2 & 3, § 273a, subd. (a)). Counts 2 and 3 each also charged Collins with firearm enhancements pursuant to sections 12022.5, subdivision (a)) and 12022, subdivision (a)(1)).
On December 16, 2014, the court found Collins was not competent to stand trial, suspended criminal proceedings, and committed him to Patton State Hospital.
On January 29, 2015, the court found Collins was competent to stand trial and reinstated criminal proceedings.
The court found Collins incompetent to stand trial based on the evaluations of two psychologists, Dr. Michael Musacco and Dr. J. Zhang. Dr. Musacco diagnosed Collins with an unspecified psychotic disorder with symptoms of grandiose beliefs and delusional thought processes that interfered with Collins's reality contact. Dr. Zhang diagnosed Collins with a delusional disorder and noted in his evaluation that Collins exhibited symptoms of a psychotic thought process.
The court found Collins competent to stand trial based on an evaluation by Dr. Nicholas Nguyen, a staff psychiatrist at Patton State Hospital. Dr. Nguyen found that Collins "showed no evidence of psychosis or active phase symptoms of a major mental disorder[.]" Nevertheless, he diagnosed Collins with schizotypal personality disorder and borderline intellectual functioning.
On February 18, 2015, Collins pled no contest to discharging a firearm in a grossly negligent manner in exchange for the dismissal of the remaining counts and enhancements and a grant of probation for five years with a maximum jail term of one year.
Collins's use of firearm in committing the underlying offense made him ineligible for probation absent a finding of unusual circumstances. (§ 1203, subd. (2).) On March 18, 2015, the court found unusual circumstances based on Collins's age and mental health history and it suspended imposition of sentence and placed Collins on felony probation for three years on condition that he serve 275 days in local custody with credit for 275 days served. The court also ordered Collins to pay $30 pursuant to Government Code section 70373, a restitution fine and probation revocation fine of $300 each (Pen. Code, §§ 1202.4, 1202.44) and $40 per month for the cost of probation supervision.
When the court asked defense counsel if there was anything else, counsel stated that the public defender's office was requesting $775 for attorney's fees. The court then advised Collins he could object and request a hearing to determine the fair value of the services if he thought the amount was too high. Collins objected and the court asked him to explain why the amount of $775 was too high or why he was unable to pay this amount. Collins responded that he did not have a job and probably would not be able to get one for a while and that he did not believed he should have to pay defense counsel because he did not receive proper representation. When the court asked Collins what was the source of his income and if he received disability benefits, Collins replied he did not have a source of income and did not receive benefits of any kind.
After defense counsel argued that Collins had the ability to earn money to pay for what counsel considered a modest amount of attorney's fees, the court asked Collins to comment on his employment opportunities. Collins replied that with his felony conviction it would be hard to for him to find any kind of employment like he had before. The court responded that $775 was a low amount for attorney's fee but because Collins future employment opportunities were going to be very limited and it anticipated it would be very difficult for him to make payments along with the mandatory fines and fees he was required to pay, the court ordered him to pay only $225 in attorney's fees.
DISCUSSION
Collins contends the evidence does not support the court's finding that he had the ability to pay $225 in attorney's fees because he was unemployed, had no known assets, and any employment opportunities would be adversely affected by his felony conviction. Thus, according to Collins the order requiring him to pay $225 in attorney's fees must be stricken. We agree.
Section 987.8 "empowers the court to order a defendant who has received legal assistance at public expense to reimburse some or all of the county's costs." (People v. Viray (2005) 134 Cal.App.4th 1186, 1213.) Under the terms of the statute, the trial court may, but only after notice and hearing, order a defendant to pay all or a portion of the costs of his legal representation if the court determines the defendant has the "present ability" to pay such costs. (§ 987.8, subd. (b).) While the finding of a present ability to pay may be implied, a section 987.8 attorney fee order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
Section 987.8 defines " '[a]bility to pay' " as a defendant's "overall" financial capacity to pay, and lists factors relevant to this determination. (§ 987.8, subd. (g)(2).) Those factors include "[t]he defendant's present financial position" (§ 987.8, subd. (g)(2)(A)); "[t]he likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing" (§ 987.8, subd. (g)(2)(C)); and his or her "reasonably discernible future financial position" (§ 987.8, subd. (g)(2)(B)). In determining the last of these factors, "In no event shall the court consider a period of more than six months from the date of the hearing...." (Ibid.)
"If 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." (§ 987.8, subd. (e).)
Collins's probation report indicates he was 59 years old when he was sentenced, that his hips and shoulders were "bad," and that he suffered from high blood pressure, arthritis, bow legs, weakness in his leg muscles, poor hearing in his one ear, and impaired vision in one eye. The report also indicates that although Collins had been paying $200 to $300 a month for rent and unspecified, varying amounts for monthly utilities, he was homeless when he was interviewed for the probation report. The report does not indicate that Collins owned a car or any other assets, but did indicate that his license was suspended.
According to the report, Collins was a high school graduate and he received an "electronics degree" after completing a 10-month course at a trade school. From 2000-2014, he worked part time for the State of California providing in-home care, earning $900 a month at a rate of $9 an hour. However, on the day he was sentenced, Collins was no longer employed, undoubtedly due to his incarceration in this matter. Further, his prospects for employment within the six months following the hearing were bleak because of his felony conviction and his use of a firearm in committing the underlying offense. Moreover, his minimal employment prospects were further diminished by his age, physical ailments, and mental health issues, which limited the type of employment he could perform, and his lack of transportation. Therefore, the record does not support a finding that Collins had the present ability to pay for defense costs at the time of the court's order or that he would be able to obtain employment within six months.
During the discussion on Collins's ability to pay, defense counsel told the court that throughout the case Collins asserted that he had secured a position as the city manager for California City and that he remained "employable in those capacities." Respondent cites these alleged statements by Collins as proof of his continued employability. However, even if Collins made these statements it is clear they were patently false because Collins had neither the experience nor education to qualify for such a position or employment in other similar "capacities." Respondent also cites Collins's employment in various jobs in aviation and electronics fields between 1986 and 2011. However, Collins's probation report indicates that he received an "electronics degree" in an unspecified area after completing a course that lasted only 10 months. Although the report states that Collins held various jobs in the aviation/electronics fields during the period noted above, it does not disclose what type of physical or mental skills these jobs involved, whether the jobs were full or part time or any other information about them. Given the paucity of evidence in this regard, the substantial period of time since Collins last performed this type of work, and all the circumstances noted above that severely limited his job prospects, this prior work experience does not support a finding that Collins could still obtain similar employment. Thus, we conclude that the evidence does not support the court's finding Collins had the ability to obtain employment within six months of his sentencing hearing. Absent such employment, it follows that he did not have the ability to begin paying the $225 for attorney's fees during the same period of time, even if the court allowed him to make payments.
DISPOSITION
The judgment is modified to strike the $225 in attorney's fees that the court ordered Collins to pay. As modified, the judgment is affirmed.