Opinion
E045695
2-27-2009
THE PEOPLE, Plaintiff and Respondent, v. KANISHA TINEYA ROSHAWN GIBSON, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Pursuant to a plea agreement, defendant pled guilty to one count of child endangerment (Pen. Code, § 273a, subd. (a)). Defendant was thereafter immediately sentenced to four years of formal probation on various terms and conditions. On appeal, defendant contends (1) the magistrate judge improperly denied her suppression motion, and (2) the trial court erred in ordering her to reimburse the county $96 for services of the public defender. We reject defendants first claim of error but agree that the court erred in ordering defendant to pay court-appointed attorney fees without notice, opportunity to be heard, or determination of her ability to pay. We will remand the matter for further proceedings in accordance with this opinion.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
The factual background is taken from the suppression hearing.
In April 2007, the Riverside County Sheriffs Department Moreno Valley Special Enforcement Gang Unit Team received information from a confidential informant that drug sales were being conducted inside apartment 12 at an apartment complex located on Eucalyptus Street in Moreno Valley. The informant advised that he had seen a Black male inside that apartment selling rock cocaine and that the man possessed a gun and a blue Honda Accord with no license plates. Accordingly, officers conducted a surveillance of that apartment for several weeks.
On April 27, 2007, about 5:30 p.m., Deputy Lance Colmer and his partner Deputy Crawford saw defendant open either the hood or the trunk of the blue Honda, and they approached defendant to investigate why the vehicle had no license plates displayed. The deputies discovered that the car was not currently registered and that the license plates had been reported as stolen or missing. Defendant was thereafter handcuffed and detained pending further investigation.
Deputy Colmer radioed dispatch and gave defendants name and date of birth. Dispatch informed the deputy that defendant had no current warrants but that she was on active felony probation. Deputy Colmer then asked defendant if she was currently on probation and if her probation included search terms. Defendant responded that her probation had "expired" but that it had included search terms. Defendant provided the deputies with a court document indicating that she had been released from probation. The document was a letter from Probation Officer Wayne Wolcott dated April 4, 2007, indicating that defendants probation had expired on April 2, 2007. Deputy Colmer did not recall whether the document was certified or whether it had a stamp date.
Deputy Colmer radioed dispatch to determine whether defendants probation had in fact expired. Dispatch informed the deputy that defendants probation had not expired but was due to expire on August 3, 2007. Based on his training and experience and information received from dispatch, Deputy Colmer believed that defendant was still on active probation. He proceeded to apartment 12 to search it, pursuant to her probation terms.
Defendant testified that, in addition to producing the letter from her probation officer, she also told the deputies that inside her apartment was a copy of the court minute order reflecting the order terminating her probation. In regard to the license plate, she explained that she had just purchased the car and that she was displaying a temporary registration sticker in the window of the car. She further stated that the license plate for the car was bent and that it would not fit in its holder. She also claimed that the plate was in the trunk of the car and that Deputy Colmer had opened the trunk and had found the license plate.
The letter from Probation Officer Wolcott and a copy of the court minute order reflecting that defendants probation had in fact been ordered terminated in April 2, 2007, were admitted into evidence.
As the deputies walked up to the apartment, defendants child ran to the apartment, opened the front door of the apartment, and yelled, "The police are here. The police are here." When the deputies were about six inches from the apartment, an adult male, later identified as Kevin Stoot, slammed the apartment door and locked it. Deputy Colmer thereafter tried to kick the door open, believing Stoot was either going to destroy evidence or retrieve a weapon. Deputy Colmer was unsuccessful in kicking the door down; leaving Deputy Crawford to guard the front, he ran to the back of the apartment to ensure Stoot would not escape through a back window or obtain a weapon. Stoot attempted to escape through a back window but slammed the window shut and retreated into the apartment when he saw Deputy Colmer. Deputy Colmer called for backup, and once additional deputies arrived, all the occupants of the apartment exited, and a protective sweep of the apartment was conducted.
After the protective sweep, deputies remained outside of the apartment, established Stoots identity, and learned that Stoot was on parole. Prior to the protective sweep, neither Deputy Colmer nor Deputy Crawford conducted an actual search of the apartment. The deputies then entered and searched the entire apartment. Deputies found a loaded nine-millimeter handgun concealed under a dresser directly under the window through which Stoot had tried to escape in the master bedroom. They also found 16 nine-millimeter bullets concealed inside a sock and plastic baggies consistent with drug sales in a duffel bag underneath a bunk bed in the second bedroom identified as a childs room. The deputies found a digital scale in the kitchen, numerous counterfeit $20 bills in the living room, and mail addressed to defendant in the master bedroom.
Following argument, defendants suppression motion was denied. The court found that Deputy Colmers initial detention of defendant was reasonable, as there was sufficient cause to investigate whether defendant was liable for an apparent violation of the Vehicle Code. The court, however, found that the deputy had acted in bad faith in relying on the dispatchers assurance that defendant was on probation after defendant had presented the deputy with a letter indicating her probation had been terminated. The court reasoned that the deputy should have instructed the dispatcher to search the courts website for any order confirming or denying defendants claim of her probation status.
The court nonetheless found the search of the apartment was reasonable based on the childs announcement that the police were there, Stoots conduct of slamming the door and locking it in the deputies faces, the discovery that Stoot was on parole and subject to a search condition, and the exigency of the circumstances. The court explained that the circumstances here (Stoots actions) justified searching the common areas of the apartment, including both the bedroom from which Stoot attempted to flee and the second bedroom.
II
DISCUSSION
A. Motion to Suppress
Though conceding that her initial detention was lawful, defendant claims the detention was unduly prolonged when the deputies decided to search the apartment. Therefore, any evidence seized thereafter must be suppressed.
As the finder of fact in a proceeding to suppress evidence (§ 1538.5), the trial court assesses witness credibility, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences in deciding whether a search is constitutionally unreasonable. (People v. Woods (1999) 21 Cal.4th 668, 673.) We view the facts in the light most favorable to the trial courts ruling, resolve all conflicts in its favor, and defer to those express or implied findings supported by substantial evidence. We independently review the trial courts application of the law to the facts. (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
Because a warrantless search is presumptively unreasonable, the defendant need only raise the issue of an unlawful detention, while the prosecution has the burden of disproving the defendants contentions. (People v. Williams (1999) 20 Cal.4th 119, 127, 128.) Defendants must do more than merely assert the search was without a warrant; they must explain why it was unreasonable. (Id. at 129.)
According to People v. McGaughran (1979) 25 Cal.3d 577, a detention exceeds "constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible." (Id. at p. 586.) "[W]hen defendants move to suppress evidence under section 1538.5, they must inform the prosecution and the court of the specific basis for their motion." (People v. Williams, supra, 20 Cal.4th at p. 129.) When the search is warrantless and the defendants have a specific argument other than the lack of a warrant to suppress the evidence, "they must specify that argument as part of their motion to suppress and give the prosecution the opportunity to offer evidence on the point." (Id. at p. 130.) "In sum, . . . under section 1538.5, as in the case of any other motion, defendants must specify the precise grounds for suppression of the evidence in question, and, where a warrantless search or seizure is the basis for the motion, this burden includes specifying the inadequacy of any justifications for the search or seizure. . . . The degree of specificity that is appropriate will depend on the legal issue the defendant is raising and the surrounding circumstances. Defendants need only be specific enough to give the prosecution and the court reasonable notice. Defendants cannot, however, lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked." (Id. at pp. 130-131.) On appeal, prolonged detention must certainly be the specific reason defendant claims that the search and seizure was unlawful, but here the issue was not mentioned at all in defendants motion to suppress.
Defendants motion states the deputies "approached [defendant] at approximately 5:31 p.m. [Citation.] [Defendant] was detained pending further investigation after Deputy Crawford ran the [vehicle identification number] on the Accord and found the car was listed . . . as having a stolen license plate and expired registration." There are no facts presented in defendants motion that could be construed as an attempt to explain the length of the detention. Defendants motion cites People v. Williams, supra, 20 Cal.4th at page 139, noting that "[t]he major pleading effort, upon motion by the defendant, is initially on the People to advance its justification for a warrantless liberty infringement." But defendants motion merely outlines general provisions of search and seizure law and argues that "no warrant justified the entrance into [defendants] home. Thus, the search, detention, and arrest and all its fruits are presumed to have been illegally obtained . . . ." The motion fails to specify prolonged detention as grounds for suppression; it contains no arguments related to the length of the detention. It does not cite People v. McGaughran, supra, 25 Cal .3d 577, the leading California case on prolonged detention, or any other case that focused on the issue of prolonged detention. The record also indicates that defendant did not advance the issue of prolonged detention at the suppression hearing, as there were no questions or arguments related to the issue of prolonged detention. Hence, the prosecution and the judge were not given reasonable notice of the issue of prolonged detention during the suppression hearing. It appears from the record defendant was focused on the issue of whether the deputy had a good faith belief defendant was on probation and subject to probation search terms rather than on the detention itself.
In the context of a trial where no facts were presented as to the length of the detention and where the motion to suppress is devoid of any mention of a prolonged detention, we conclude that the prosecutor and judge were not given reasonable notice of defendants intention to challenge the length of the detention. "`[T]he scope of issues upon review must be limited to those raised during argument . . . . This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse partys contentions." (People v. Williams, supra, 20 Cal.4th at p. 136.) Defendant did not adequately preserve the issue of prolonged detention; thus, she cannot raise it on appeal.
B. Ability to Pay Court Appointed Counsel
Defendant argues that the trial court erred by ordering her to pay $96 in attorney fees pursuant to section 987.8. She claims that the order was flawed because (1) she had no notice; (2) the court failed to make a finding of her ability to pay the attorneys fees; and (3) there was no evidence of the reasonableness of the fees. Defendant therefore submits that the order imposing $ 96 in attorneys fees must be stricken. The People respond that defendant waived this claim and, even if we determine there is no waiver, any error was harmless.
1. Procedural safeguards of section 987.8
Section 987.8, subdivision (b) also explicitly requires notice of a hearing to determine ability to pay. That subdivision provides: "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, or upon the withdrawal of the public defender or appointed private counsel, 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. The court may, in its discretion, order the 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."
On January 11, 2007, the court appointed counsel to represent defendant. Defendant was present at that hearing. However, as the People point out, the record on appeal does not contain the reporters transcript for that proceeding, nor does it include defendants confidential financial statement form. In addition, nothing in the probation report gave defendant such notice. In People v. Heath (1989) 207 Cal.App.3d 892, the court reversed the order for reimbursement of attorney fees solely on the ground of lack of notice. (Id. at pp. 902-903.)
We reject the Peoples assertion that defendant "presumably" received notice. There is nothing in the record to support the presumption that the court complied with section 987.8.
Here, the record is devoid of any evidence showing that defendant was advised she might be required to reimburse the cost for attorneys fees at any time, even before she was appointed counsel. In addition, there is no probation report in this case, as she was immediately sentenced following her guilty plea.
Additionally, in People v. Poindexter (1989) 210 Cal.App.3d 803, we held that section 987.8 requires evidence of the actual costs of the legal services provided. (Poindexter, at p. 809.) We explained, "Penal Code section 987.8 gives the trial court discretion to determine a defendants ability to pay the cost to the county of legal services provided and to set the manner of payment, but does not give the court any discretion to determine the reasonable value of those services. [Citation.] The court must review evidence of the actual costs to the county before it can assess costs or attorneys fees to the defendant. [Citation.]" (Id. at pp. 810-811.)
Here, defendants counsel, like the attorney in Poindexter, had not submitted a statement to the court. The absence of a statement was no doubt due in part to the lack of notice that attorney fees would be assessed. Moreover, there was no discussion regarding the reasonable value of services provided by defendants appointed trial counsel, who was from the public defenders office, albeit $96 appears to be reasonable.
At no time prior to sentencing was defendant given notice that a hearing would be held to determine her ability to reimburse the county for the cost of her defense, and no portion of the sentencing hearing was dedicated to an ascertainment or discussion of defendants ability to pay for the cost of her defense. After defendant responded in the affirmative to the courts inquiry of whether she worked or was going to work in the future, the court simply announced that defendant was to pay $96 for the cost of her court-appointed attorney. Also absent from the record is any evidence as to the actual amount expended by the county on defendants representation. Stated otherwise, the record in this case is completely devoid of any showing of compliance with section 987.8, subdivisions (b), (d), and (e).
Section 987.8, subdivision (e) sets forth that the defendant shall be entitled to, but not limited to, the following at the hearing: "(1) The right to be heard in person. [¶] (2) The right to present witnesses and other documentary evidence. [¶] (3) The right to confront and cross-examine adverse witnesses. [¶] (4) The right to have the evidence against him or her disclosed to him or her. [¶] (5) The right to a written statement of the findings of the court."
2. Waiver
The People urge us to conclude that defendants failure to interpose an objection below constitutes a waiver or forfeiture of her contention on appeal. We do not agree.
As noted, due process requires, at a minimum, notice and a hearing before an indigent defendant can be ordered to pay the cost of his government-provided legal representation.
Some sentencing matters may be waived if not objected to below. In People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court held that "the waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices." (Id. at p. 353.) The court has discretion to determine the defendants ability to pay and the manner of payment, but, as this court has previously held, there is no discretion to determine a reasonable amount of attorney fees; evidence of actual costs is required. (People v. Poindexter, supra, 210 Cal.App.3d at p. 811.) Similarly, the court has no discretion simply to dispense entirely with notice and a hearing on the issue. Accordingly, this case does not fall within the waiver rule of Scott.
The Peoples reliance on People v. Whisenand (1995) 37 Cal.App.4th 1383 is misplaced. In that case, we found that, by failing to raise the issue in the trial court, the defendant had forfeited her right to argue that she did not receive notice that the reimbursement of attorney fees would be addressed at a particular proceeding. (Id. at p. 1394.) While "neither the probation report nor the sentencing hearing gave defendant any notice that the issue of reimbursement for counsel fees was pending" (id. at p. 1395), the trial court held a three-day hearing on the issue of victim restitution at which defendants "ability to pay" was addressed. (Id. at pp. 1387, 1395.) "From that hearing, the trial court drew the conclusion that she was able to reimburse the county for the costs of legal representation." (Id. at p. 1395.) Here, defendants ability to pay was not the subject of any hearing.
Unlike the defendant in Whisenand, we conclude defendant had no meaningful opportunity to object to the imposition of attorney fees and thus did not forfeit her right to challenge those fees on appeal. "[I]n the analogous context of restitution and restitution fines, it has been held that `[a] defendants due process rights are protected when the probation report gives notice of the amount of restitution claimed and expected to be ordered . . ., and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing." (People v. Phillips (1994) 25 Cal.App.4th 62, 74.) Under the circumstances of this case, we conclude defendant had insufficient notice at the time of sentencing, and we reject the Peoples claim that defendants failure to object to the court-appointed attorney fees at sentencing constitutes a waiver of the claim on appeal.
We also reject any claim that reversal of the attorney fees order is not required because defendant has shown no prejudice. (See, e.g., People v. Smith (2000) 81 Cal.App.4th 630, 638-639.) In Smith, the defendant had reason to be aware he might be held responsible for payment of attorney fees but was not given notice specifically complying with the requirements of section 987.8. (Smith, at p. 638.) The appellate court affirmed the order because the defendant had not demonstrated prejudice: He was aware of the possibility he might be ordered to pay the fees, a hearing on the issue was held, and he did not argue he lacked ability to pay or the amount ordered was erroneous. (Id. at pp. 638-639.) In the instant matter, defendant had no reason to expect she might be ordered to pay attorney fees and no inquiry was made into her ability to pay.
Moreover, leaving aside the question of notice, it is evident from our Supreme Courts decision in People v. Flores (2003) 30 Cal.4th 1059 that summarily awarding attorney fees at sentencing without conducting a hearing on the issue at that time, if there was no previous hearing on it, is inadequate. Neither party is able to point to any other place in the record showing that a prior hearing on attorney fees was conducted. Thus, this case stands in the same posture as Flores, in which "[a]t sentencing, without having given him the notice or hearing required by section 987.8[, subdivision] (b), the trial court ordered defendant" to pay attorney fees. (Id. at p. 1062.)
3. Appropriate remedy
In People v. Flores, supra, 30 Cal.4th 1059, the case was remanded to the trial court to "make an informed decision" (id. at p. 1069) about the defendants ability to pay attorney fees. Flores observed that the defendant "may not be able to pay the $5,000 ordered by the trial court, but he may be able to pay something, and if he can, he is obligated by the statute to do so." (Id. at pp. 1068-1069.)
The Legislature has found, with respect to a criminal defendants obligation to pay attorney fees, that "[u]nless 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." (§ 987.8, subd. (g)(2)(B).) In remanding the question to the trial court, Flores noted that the defendant had been stably employed and possessed $1,500 worth of jewelry. (People v. Flores, supra, 30 Cal.4th at p. 1068.) Moreover, his prison sentence was three years. (Id. at p. 1063.)
In this case, it appears defendant may have the ability to pay her court-appointed attorneys fees. Because defendant here was not sentenced to state prison but was granted probation, she has a "reasonably discernible future financial ability to reimburse the costs of [her] . . . defense." (§ 987.8, subd. (g)(2)(B).) Second, the record indicates that defendant either worked or was planning on working in the future. Given all of the circumstances of the case, the appropriate remedy is to remand the matter for notice and hearing.
On remand, however, defendants ability to pay must be determined with reference to defendants financial condition at the time of the sentencing or not later than six months after the sentencing under section 987.8, subdivision (g)(2)(B).
Finally, we note if the trial court opts to impose the court-appointed attorney fees following notice and hearing to determine defendants ability to pay, an order to pay attorney fees cannot legally be imposed as a condition of probation. (People v. Bradus (2007) 149 Cal.App.4th 636, 641.)
III
DISPOSITION
The matter is remanded to the trial court with instructions to vacate its previous order that directed defendant to pay $ 96 in attorneys fees and to conduct further proceedings to determine defendants ability to pay pursuant to Penal Code section 987.8. The court may impose a new order to pay attorney fees if it determines that defendant has the ability to pay, but that order shall not be a condition of probation. In all other respects, the judgment is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J.