Opinion
F061381
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. VICTOR PAUL LOPEZ, JR., Defendant and Appellant.
Shannon Chase, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F09906412)
OPINION
THE COURT
Before Wiseman, Acting P.J., Poochigian, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.
Shannon Chase, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On October 19, 2010, appellant, Victor Paul Lopez, Jr., was found guilty after a jury trial of felony possession of methadone (Health & Saf. Code, § 11350, subd. (a)) as charged in an information. The trial court found appellant eligible for Proposition 36 probation, suspended imposition of judgment, and placed appellant on probation for two years. At the sentencing hearing, the court also ordered that appellant pay probation costs pursuant to Penal Code section 1203.1b and "attorneys fees as determined by the court." The court also imposed fees for probation supervision, a presentence report, and a treatment program.
Unless otherwise stated, all statutory citations are to the Penal Code.
Appellant contends the trial court erred in imposing attorney fees, charging him with the cost of preparing the probation report, and other costs without finding that he had an ability to pay. Respondent argues these issues are subject to forfeiture for appellant's failure to object to the fees and costs during the sentencing hearing. As we explain, we will not apply the doctrine of forfeiture to this case and will remand the matter to the trial court to conduct a hearing on appellant's ability to pay the costs and fees.
Because the only issues on appeal concern fees and costs, we do not recount the underlying facts of appellant's offense.
ATTORNEY FEES
Appellant contends there was no hearing concerning his ability to pay attorney fees pursuant to section 987.8. The People argue that appellant forfeited his challenge to the sufficiency of the evidence supporting the court's implied ability-to-pay finding by failing to object at sentencing to the attorney fees order.
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 (Viray).)
In Viray, the defendant challenged the trial court's order to pay attorney fees under section 987.8 on several grounds, including, as here, that there was insufficient evidence to support the finding of ability to pay. (Viray, supra, 134 Cal.App.4th at pp. 1213-1214.) The People argued the defendant forfeited those claims by failing to object at sentencing. The Viray court rejected this argument. The court reasoned that forfeiture may not properly "be predicated on the failure of a trial attorney to challenge an order concerning his own fees. It seems obvious to us that when a defendant's attorney stands before the court asking for an order taking money from the client and giving it to the attorney's employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel's omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client's representative. Counsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment." (Id. at pp. 1215-1216.) Viray applied this rationale even where counsel is a public defender on salary. (Id. at p. 1216.) We agree with the reasoning of Viray and find appellant did not forfeit his appellate challenge to the attorney fees order by failing to object to the order at sentencing.
There is no dispute appellant was provided legal assistance in the instant case at the County's expense. 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.) Other than a short reference in the probation report, the record here is devoid of any indication that appellant was provided the notice required by statute.
The probation officer's report did seek costs for preparing the probation report and recommended that the court impose attorney fees pursuant to section 978.8. Section 978.8, subdivision (d) sets forth the notice requirements for a hearing on attorney fees. Mere mention in the probation report that these fees are sought does not fulfill the statutory requirements for a properly noticed hearing.
Section 987.8 defines "'[a]bility to pay'" as a defendant's "overall" financial capability 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.) Moreover, "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." (Ibid.)
We will, therefore, reverse the trial court's order for reimbursement of attorney fees and remand the matter for a hearing on appellant's ability to pay.
Without a hearing on appellant's ability to pay attorney fees, we cannot assume, as respondent would have us do, that there is sufficient information in the probation report concerning appellant's ability to pay and find that appellant's claim fails on the merits. The information in the probation report showed that although appellant was formerly employed, he was currently supported by AFDC payments and food stamps.
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PROBATION COSTS AND FEES
Appellant contends the trial court erred in imposing fees and costs for preparation of the probation report pursuant to section 1203.1b without making a finding that appellant had the ability to pay the fees and costs. Respondent argues that appellant failed to lodge an objection to the trial court's imposition of the fees and costs or to his ability to pay them and the issue is, therefore, subject to forfeiture on appeal.
Section 1203.1b, subdivision (a) provides that the trial court may order a defendant to pay the cost of the probation report and costs associated with probation supervision. It directs the probation officer to make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of supervision, investigation, and reporting. The officer is also directed to inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. Subdivision (b) of section 1203.1b states that, if the defendant does not waive his or her right to a hearing, the probation officer is to refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payment shall be made.
The record here does not show that the probation officer or the court ever determined appellant's ability to pay; or that he was notified he had a right to a court hearing about his ability to pay; or that he made any express waiver of his right to such a hearing. We have followed the forfeiture rule with regard to a defendant's failure to object to the imposition of fees for preparation of the probation officer's report, relying on People v. Valtakis (2003) 105 Cal.App.4th 1066, where this cost was the only issue raised on appeal and attorney fees were not imposed.
In the instant action, however, it would be unreasonable to apply forfeiture to the issue of probation costs where we are remanding the matter for a determination of the issue of appellant's ability to pay attorney fees. Both issues concern the same factual finding. It would be inconsistent to grant appellant a hearing concerning his ability to pay one fee, but not the other. Appellant seeks a hearing as to these issues and remanding the case for a factual finding on appellant's ability to pay preserves the rights of both parties. Under section 1260, we may remand a matter "for such further proceedings as may be just under the circumstances." We will, therefore, reverse the trial court's order that appellant pay for the cost of preparing the probation report, including other related costs and fees, and remand the matter for the trial court to conduct a hearing on appellant's ability to pay.
DISPOSITION
The judgment of conviction is affirmed. The trial court's orders for reimbursement of attorney fees, the cost of preparing the probation report, and for other related costs are reversed. The matter is remanded for the trial court to conduct a hearing on appellant's ability to pay these costs and fees should the People seek to pursue them.