Opinion
B225222
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ELISEO MENDEZ, Defendant and Appellant.
Corona & Peabody and Jennifer L. Peabody, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA071223)
APPEAL from a judgment of the Superior Court of Los Angeles County. H. Chester Horn, Jr., Judge. Affirmed as modified.
Corona & Peabody and Jennifer L. Peabody, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Daniel Eliseo Mendez challenges a single aspect of his sentence following a guilty plea. He argues that the trial court erred by ordering him to pay $254 in attorney fees without holding a hearing or making any finding regarding his ability to pay as required by Penal Code section 987.8. We agree and, in the interest of judicial economy, strike the fee award and in all other respects affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed on October 9, 2009 charged appellant in count 1 with attempted murder (§§ 664/187, subd. (a)), in count 2 with assault with a semiautomatic firearm (§ 245, subd. (b)), in count 3 with possession of a firearm by a felon (§ 12021, subd. (a)(1)) and in count 4 with shooting at an inhabited dwelling (§ 246). The information further alleged that as to counts 1 and 4 appellant personally discharged a firearm causing great bodily injury to the victim. (§ 12022.53, subds. (b), (c) & (d).) As to counts 1, 2 and 4, the information alleged that a principal personally and intentionally discharged a firearm, causing great bodily injury to the victim. (§ 12022.53, subds. (b), (c), (d) & (e).) With respect to all counts, the information alleged that the offenses were committed for the benefit and at the direction of and association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Finally, the information alleged that appellant had served three prior prison terms within the meaning of section 667.5, subdivision (b).
In view of appellant's limited challenge on appeal, we need not discuss the factual basis for the information.
A jury trial commenced on May 12, 2010. The next day, the trial court granted a prosecution motion to amend the information to add a special allegation pursuant to section 186.22, subdivision (b)(4) as to counts 1 and 4. Following that amendment, appellant elected to enter a guilty plea.
Appellant pled no contest to count 2 and admitted the gang allegation and prior prison term alleged as to that count. On June 18, 2010, the trial court sentenced appellant to a total term of 20 years in prison, comprised of the upper term of nine years on count 2, plus an additional 10 years for the gang allegation and one year for the prior prison term. It dismissed the remaining counts pursuant to section 1385. Appellant received a total of 460 days custody credit. The trial court also ordered appellant to pay restitution, assessments and fees, including attorney fees in the amount of $254 pursuant to section 987.8.
At the hearing, the trial court imposed attorney fees in the amount of $254; the clerk's transcript identifies the amount as $245 and the abstract makes no mention of attorney fees. The general rule is that when there is a discrepancy between the oral pronouncement rendering judgment, as reflected in the reporter's transcript, and the minute order or the abstract of judgment contained in the clerk's transcript, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471-472, superseded by statute on other grounds as explained in People v. Turner (1998) 67 Cal.App.4th 1258, 1268; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.)
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The trial court granted appellant's request for the issuance of a certificate of probable cause, and this appeal followed.
DISCUSSION
Section 987.8 authorizes a trial court to order a defendant to contribute to the cost of counsel appointed to represent him. Section 987.8, subdivision (b) provides in part: "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." In turn, section 987.8, subdivision (e) states: "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 . . . ."
Section 987.8, subdivision (g)(2) defines ability to pay as "the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernable future financial position. 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. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant."
Appellant contends, and the People concede, that the trial court erroneously ordered him to pay $254 in attorney fees without first holding a hearing to determine whether he had the ability to pay as required by section 987.8, subdivision (b). That appellant did not raise this issue at the time of sentencing is of no consequence. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 [challenge to attorney fee award under § 987.8 made without a hearing on ability to pay did "not require assertion in the court below to be preserved on appeal"]; People v. Viray (2005) 134 Cal.App.4th 1186, 1215 ["We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees"].)
Appellant and the People disagree, however, as to the appropriate remedy. While appellant requests that the award be stricken, the People argue that the appropriate remedy is to remand the matter to give the trial court an opportunity to conduct a noticed hearing on the issue. (People v. Flores (2003) 30 Cal.4th 1059, 1061, 1068.) Section 987.8, subdivision (g)(2)(B) contains a presumption that, absent unusual circumstances, a defendant sentenced to prison does not have the ability to reimburse the defense costs. In the case on which the People rely, People v. Flores, "the People argued that a showing of unusual circumstances was conceivable because, according to the probation report, defendant possessed $1,500 worth of jewelry at the time of sentencing." (People v. Flores, supra, at p. 1068.) Here, the trial court sentenced appellant to 20 years in state prison. But unlike Flores, the People have not directed us to anything in the record that suggests the existence of unusual circumstances to rebut the presumption that appellant lacks the ability to pay attorney fees, nor have we found any indication of unusual circumstances in our review of the record on appeal.
We therefore conclude, on the basis of the statutory presumption a defendant sentenced to state prison lacks the ability to contribute to the expense of appointed counsel (§ 987.8, subd. (g)(2)(B)) and the relatively small amount of the fee order, that remand to permit the trial court to conduct a noticed hearing on the issue would only generate additional expense. In view of the circumstances and in the interests of judicial economy, we will therefore strike the order directing appellant to pay $254 in attorney fees.
DISPOSITION
The judgment is modified to strike the order assessing attorney fees in the amount of $254 or any amount, and as so modified, affirmed. To the extent necessary, the trial court is directed to prepare an amended abstract of judgment reflecting this modification and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD , J. We concur:
BOREN , P. J.
CHAVEZ , J.