Opinion
E052681 Super.Ct.No. FVI800765
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL ANTHONY ADAMS, Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Gabriel Anthony Adams pled guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a)) and admitted a gang enhancement (§ 186.22, subd. (b)(1)(C)) as well as a firearm use enhancement (§ 12022.5, subd. (a)), and received a determinate sentence of 25 years. The trial court found that defendant had "the ability to pay appointed counsel fees in the amount of $500" and "the ability to pay the costs of conducting the presentence investigation and preparing a report pursuant to [section] 1203.1(b)" in the amount of $505. Defendant contends, and the People concede, there was insufficient evidence of his ability to pay appointed counsel (§ 987.8) and report preparation fees (§ 1203.1b). We agree and modify the judgment by striking the attorney and record preparation fees.
Undesignated statutory references are to the Penal Code.
$150 according to the courtroom clerk and the probation officer. {CT 66, 78} The amount imposed need not be determined in view of this court's decision.
--------
BACKGROUND
The probation officer noted that defendant "has an eleventh grade education and no vocational training. His only reported employment was a janitorial job . . . where he earned a total of $800.00 for the summer. The defendant has never been married and has no children. He owns nothing of value [but] owes no debt." Among the recommendations were that the trial court find that defendant has the ability to pay appointed counsel fees in the amount of $150, and the ability to pay the $505 cost of presentence investigation and preparation of the probation officer's report. The probation report also recommended that the restitution fine (§ 1202.4, subd. (b)) and the parole revocation restitution fine (§ 1202.45) be set at the $10,000 maximum.
At the sentencing hearing, defendant's trial counsel requested the trial court "find that [defendant] does not have the ability to either pay for reimbursement of appointed counsel fees or the costs of the investigation." Defendant's trial counsel also asked the trial court "to reduce the restitution fine from $10,000 to $200." Along with booking and security fees, the trial court imposed a $1,000 restitution fine (§1202.4, subd. (b)), a parole revocation restitution fine in the same amount (§1202.45), $11,039.28 payable to the Victim Restitution Unit and, at a subsequent hearing, $7,217.42 payable to the victim's family.
DISCUSSION
Defendant contends, and the People concede, there was insufficient evidence of defendant's ability to pay appointed counsel (§ 987.8) and report preparation fees (§ 1203.1b). We agree.
"Subdivision (b) of section 987.8 . . . provides that, upon the conclusion of criminal proceedings in the trial court, the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him." (People v. Flores (2003) 30 Cal.4th 1059, 1061 (Flores).)"Subdivision (g)(2)(A), (B) of section 987.8 defines ' "[a]bility to pay" ' as including a defendant's 'reasonably discernible future financial position,' as well as his 'present financial position,' but stipulates that '[i]n 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 discernible future financial position.' " (Id. at p. 1063, fn. 2). "[T]here is a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs. Subdivision (g)(2)(B) of section 987.8 provides in pertinent part: '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.' " (Id. at p. 1068.)
The framework for the imposition of fees for presentence investigation costs under section 1203.1b is similar to, but slightly different from appointed counsel fees under section 987.8. For instance, section 1203.1b does not require a finding of unusualness in order for a defendant to be ordered to pay fees when they are sentenced to prison. (Cf. § 1203.1b, subd. (e)(2), 987.8, subd. (g)(2)(B).) Furthermore, "[i]n making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." (§ 1203.1b, subd. (b)(3).)
In view of the fines and restitution imposed in excess of $20,000, the 25-year prison sentence, defendant's lack of any assets, income, skills, or significant job experience, and the absence of any unusual circumstances, defendant plainly did not have, and had no prospects of ever having, the ability to pay. Given the lack of any indication in the record that a new hearing could conceivably produce any new evidence of unusual circumstances or ability to pay, we will directly modify the judgment rather than returning the case to the superior court for further proceedings. (See and cf. Flores, supra, 30 Cal.4th at pp. 1068-1069 [directed hearing because possible showing of unusual circumstances].)
DISPOSITION
The judgment is modified by striking the imposition of $500 (or $150) attorney fees (§ 987.8) and $505 report preparation fees (§ 1203.1b). The superior court clerk is directed to enter a corrected sentencing minute order and, if the original sentencing order was sent to Central Collections, to send a copy of the corrected sentencing minute order to Central Collections. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.