Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA040581. Brian C. Yep, Judge, and Cathrine L. DeVoe, Commissioner. Affirmed in part; reversed in part; and remanded.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Priscilla Debra Alonso appeals from the judgment, challenging her sentencing order, which includes as conditions of probation that she pay $254.31 in attorney fees pursuant to Penal Code Section 987.8 and a $200 “assessment fee” toward the cost of her drug treatment program under Penal Code Section 1210.1, subdivision (a), on the ground that the trial court did not determine her ability to pay those fees, which is required under the latter statutes. She also challenges the order that she pay $120 in “court cost,” because that order was not made at sentencing orally.
All statutory references are to the Penal Code, unless otherwise indicated.
At oral argument, appellant withdrew her objection to the assessment of the $120 “court cost.” The only other fee issues remaining on appeal are the attorney and drug treatment fees, together amounting to about $450. We question whether taxpayer money is best spent prosecuting and opposing these issues, an irony counsel also observed at oral argument.
Alonso further contends that the record is inadequate to allow a meaningful review of the court’s in camera Pitchess rulings, and she requests remand for a new hearing. We find the record adequate to review the trial court’s in camera Pitchess rulings, and find no abuse of discretion in those rulings.
See Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-82; Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We reverse the trial court’s order that Alonso pay $254.31 in attorney fees, and reject respondent’s invitation to find that appellant’s challenge is waived under People v. Scott (1994) 9 Cal.4th 331, 348, 356 (Scott). Respondent misconceives appellant’s challenge, which is for sufficiency of evidence, which can never be waived, Scott notwithstanding. Where section 987.8 is grounded in a defendant’s constitutional right to counsel, which right is protected by the statutorily mandated ability-to-pay hearing that never occurred here, and there is literally no evidence in the record of Alonso’s ability to pay, Alonso may challenge the sufficiency of evidence to support the trial court’s assessment of attorney fees even though she did not object below. We similarly reverse the trial court’s order to pay the $200 drug treatment fee. Because the record lacks any evidence from which to imply any ability to pay, we find no forfeiture of Alonso’s substantial evidence challenge to the order to pay the drug treatment fee.
BACKGROUND
On February 19, 2008, Alonso was charged by information of one count with possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). Due to conflicting testimony at the preliminary hearing with regard to the manner in which Los Angeles Sheriff’s Deputies had entered and searched Alonso’s residence, Alonso brought a pretrial Pitchess motion, seeking discovery of materials that directly or indirectly related to accusations or evidence of misconduct by two deputies. The motion was granted, and the court conducted an in camera hearing to review the materials. The court found one discoverable item relating to one of the deputies, and ordered that it be turned over.
On August 19, 2008, after a jury trial, Alonso was convicted as charged. On August 28, 2008, the trial court sentenced Alonso pursuant to section 1210.1 (Proposition 36). The court suspended imposition of sentence, placed Alonso on formal probation for a period of three years, and imposed conditions of probation, including drug abuse counseling, treatment, and testing. The court imposed a $200 restitution fine, a $50 laboratory analysis fee, a $10 surcharge, and a $20 court security fee.
The court also ordered Alonso to pay a $200 drug treatment fee and $254.31 in attorney fees, advising Alonso to obtain documents regarding financial evaluation data from the clerk’s office, and to visit the evaluator. The only probation reports in the record consist of a progress report prepared for a progress hearing scheduled for September 11, 2008, and a drug treatment eligibility assessment prepared for the August 28 hearing. Neither report recommended that Alonso reimburse attorney fees or pay a drug treatment fee, or otherwise gave Alonso notice that the court could order reimbursement of attorney fees or payment of a drug treatment fee. Nor did the trial court give Alonso notice of its intent to order such reimbursement or payment, or take evidence as to Alonso’s ability to pay.
Alonso filed a timely notice of appeal the same day.
DISCUSSION
1. Assessment of Attorney Fees
Alonso challenges the sufficiency of evidence to support an implied finding of ability to pay section 987.8 attorney fees. Respondent counters that Alonso forfeited her challenge by failing to object below.
Section 987.8, subdivision (b) provides that, upon conclusion of criminal proceedings in the trial court, the court may, after notice and a hearing, determine the defendant’s present ability to pay all or a portion of the cost of the legal assistance provided by the public defender or court-appointed private counsel. At that hearing, the defendant must be afforded the right to be heard in person, to present witnesses and other documentary evidence, to confront and cross-examine adverse witnesses, and to have the evidence against him or her disclosed. (§ 987.8, subd. (e).) The defendant also has the right to a written statement of the findings. (Ibid.)
The procedural safeguards in section 987.8, particularly the evidentiary hearing on ability to pay, are not mere technicalities. The requirement for such a hearing is firmly grounded in Sixth Amendment’s right to counsel as the United States Supreme Court acknowledged in Fuller v. Oregon (1974) 417 U.S. 40 (Fuller) (rejecting a constitutional challenge to Oregon’s attorney fees recoupment statute because “Oregon’s legislation is tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship” (Fuller, at p. 54)); see also In re Elizabeth S. (1982) 138 Cal.App.3d 450, 452-454 (Elizabeth S.) (noting that attorney fees may be constitutionally recouped in juvenile cases under the reasoning of Fuller).
It is uncontested that there was no ability-to-pay hearing here and as noted ante, there was no evidence whatsoever in the record before the trial court about Alonso’s income, expenses or assets. Respondent conceded as much at oral argument. Alonso argues that under these undisputed facts, the evidence was necessarily insufficient to support even an implied finding of ability to pay, and she can challenge this insufficiency even without objecting below under the reasoning of People v. Viray (2005) 134 Cal.App.4th 1186, 1217 (Viray). In Viray, an order to pay section 987.8 attorney fees was reversed, for, among other reasons, lack of substantial evidence of ability to pay even absent objection in the trial court. (Viray, at p. 1217 [citing People v. Butler (2003) 31 Cal.4th 1119 (Butler), for the proposition that “no predicate objection” in the trial court was required to reach the sufficiency of the evidence to support the attorney fees assessment].)
The Viray court also held that a forfeiture cannot “properly be predicated on the failure of [defense counsel] to challenge an order concerning his own fees,” given the “patent conflict of interest.” (134 Cal.App.4th at p. 1215.) Because Alonso does not make this argument here, we do not address it.
Respondent does not address the merits of the sufficiency of evidence. Instead, respondent describes Viray asa judicial outlier and seeks to justify that characterization with the concurring opinion in Butler, in which Justice Baxter observed: “[D]espite our ruling today, it remains the case that other sentencing determinations may not be challenged for the first time on appeal, even if the defendant claims that the resulting sentence is unsupported by the evidence. This includes claims that the record fails to demonstrate the defendant’s ability to pay a fine.” (Butler, supra,31 Cal.4th at p. 1130 [citing People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 (Valtakis), People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 (Gibson), and People v. McMahan (1992) 3 Cal.App.4th 740, 750 (McMahan)].)
In Butler, the trial court ordered HIV testing at sentencing, but failed to make an express finding of probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV had been transferred from the defendant to the victim, a finding required by section 1202.1. (Butler, supra, 31 Cal.4th at p. 1125.) The Court of Appeal had rejected the Attorney General’s forfeiture argument, and invalidated the trial court’s order on two grounds: the trial court’s failure to make the required finding and the lack of any evidence on the record to support any such finding. (Ibid.)
The Supreme Court agreed that the failure to object to the absence of an express finding of probable cause precluded challenging the order on that ground on appeal. (Butler, supra, 31 Cal.4th at p. 1125.) The Supreme Court, however, rejected the argument that a challenge based on sufficiency of the evidence had been waived, Scott notwithstanding. (Butler,at pp. 1127-1128 & fn. 5.) In so holding, the Supreme Court acknowledged the principles of appellate review presuming an implied finding of probable cause if the trial court failed to articulate its reasons on the record, but held that because the statute requires a finding of probable cause before HIV testing could be imposed, the testing order could only be sustained upon appellate review if supported by substantial evidence. (Id. at p. 1127.) As the court observed, “[E]ven if the prosecution could have established probable cause, in the absence of sufficient evidence in the record, the order is fatally compromised.” (Ibid.)
Because section 987.8 also contains a legislatively mandated prerequisite -- of ability to pay -- and it is uncontested that there was no evidence in the record from which to imply Alonso’s ability to pay those fees, a fortiori, there was no substantial evidence to support the trial court’s assessment of attorney fees. Alonso thus did not forfeit her challenge on sufficiency of evidence grounds. (Viray, supra, 134 Cal.App.4th at p. 1217; People v. Nilsen (1988) 199 Cal.App.3d 344, 347 [“We need not resolve Nilsen’s claim regarding adequacy of notice, however, since we conclude that the trial court’s determination that Nilsen had the present ability to reimburse the county is not supported by substantial evidence”].) Not even respondent argues that the constitutional right to counsel implicated in section 987.8’s ability-to-pay requirement is of a lesser status than the privacy interests involved in HIV testing so as to justify ignoring legislative prerequisites vis-à-vis one but not the other.
The cases cited in Justice Baxter’s concurring opinion do not merit a different disposition. Valtakis involved the trial court’s imposition of a $250 probation fee without expressly conducting an ability-to-pay hearing. The Court of Appeal held that defendant’s failure to object to the trial court’s assessment of that fee precluded defendant from challenging the fee on appeal under Scott and its progeny. But in Valtakis -- unlike here -- there was evidence in the record to support defendant’s ability to pay the fee; indeed defendant did not even challenge the sufficiency of that evidence on appeal.
“The record does not suggest that Valtakis was unable to pay the $250 or that the result of a remand would be a better one. The record shows that he had $255 on him when arrested and, by the time of sentencing, was working part-time, was not addicted to drugs or otherwise incapacitated, was living with his mother (herself employed), and was given a three-month stay of his jail term in order to complete his current school semester.” (Valtakis, supra, 105 Cal.App.4th at p. 1076.)
McMahan did not involve attorney fees, but instead a $100 sex offender fine, assessed under section 290.3, which the appellate court interpreted to require -- in marked contrast to section 987.8 -- that the fine be ordered “unless” the court determined that defendant did not have an ability to pay it. In so holding, the court expressly distinguished section 290.3 from other statutes making ability to pay a condition precedent to imposition of fines. (McMahan, supra, 3 Cal.App.4th at p. 749, fn. 3.)
In Gibson,the appellate court held that by failing to object, the defendant had failed to preserve a sufficiency of evidence review of his ability to pay a restitution fine of $2,200, which had been recommended in the probation report. (Gibson, supra, 27 Cal.App.4th at pp. 1467-1469.) The fine was imposed pursuant to former Government Code section 13967, which, in 1993 and 1994, provided for a determination of the defendant’s ability to pay before ordering payment of the fine. (Gibson, at p. 1467 & fn. 1)
Under the current statute, the sentencing court may consider the defendant’s ability to pay only if it imposes a restitution fine greater than a certain mandatory minimum amount, and only then is a defendant’s “inability to pay” a consideration. (§ 1202.4, subd. (d); italics added.)
Interestingly enough, despite the holding in Gibson, only one year later, the same appellate court reviewed a record for sufficiency of evidence to imply an ability to pay the same kind of restitution fine involved in Gibson. Thus, in People v. Hennessey (1995) 37 Cal.App.4th 1830, the appellate court held that due to the defendant’s failure to object, the court’s finding of inability to pay would be implied, and “[i]t was necessary only that the record contain evidence supporting an implied determination of ability to pay. [Citations.]” (Hennessey, at pp. 1836-1837; cf. People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395-1396 [finding waiver of challenge to award of section 987.8 attorney fees but noting that evidence adduced in restitution hearing demonstrated ability to pay the attorney fees].)
Similarly, none of the other waiver cases arising under section 987.8 that we have found has upheld an order to pay section 987.8 attorney fees in the absence of any evidence of ability to pay those fees. (See People v. Phillips (1994) 25 Cal.App.4th 62 [where notice was sufficient and substantial evidence supported a finding that defendant had the ability to pay, defendant was found to have forfeited his claim that section 987.8 required a separate formal hearing]; People v. Klockman (1997) 59 Cal.App.4th 621 [where defense counsel had expressly waived a hearing, and the record contained evidence of ability to pay, defendant was held to have forfeited his challenge to a lack of hearing and factual findings].)
For all the above reasons, the trial court’s order to pay $254.31 must be reversed and remanded for an ability-to-pay hearing.
2. Assessment of Drug Treatment Fee
A finding of the defendant’s ability to pay is also a prerequisite to an order to contribute to treatment costs under section 1210.1, which provides in subdivision (a): “In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program.”
We have not found any case that has held that a defendant cannot challenge an order requiring payment of the drug treatment fee for sufficiency of evidence where, as here, there was (1) no notice that the fee was going to be assessed; (2) no determination of ability to pay despite a statutory mandate requiring such a determination; and (3) no evidence to support an implied finding of ability to pay. Here, the Legislature has expressly made ability to pay a prerequisite to assessing the fee. To find a waiver under these unique and undisputed facts would not comport with this legislative imperative.
3. Adequacy of Record of Pitchess Hearing
Alonso contends that although she was afforded an in camera by the trial court pursuant to her Pitchess motion, the record fails to indicate what records were turned over to the court or evaluated by the court. She contends that the record is inadequate to allow a meaningful review on appeal and requests a new hearing.
We do not find the record to be inadequate. We have the sealed transcript of that hearing before us, and find it sufficient to review the trial court’s determination, without having to order the production of the same documents in this court. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) Although the records produced in the trial court were not retained, the custodian of records described each incident falling within the scope of the request, and the court examined the reports relating to these incidents. The court then stated its reasons for its determination.
We review the trial court’s determination for an abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.) Upon review of the sealed record of the in camera proceedings, we conclude the trial court properly exercised its discretion in determining that the documents produced complied with the scope of the Pitchess motion, and that only one of the documents or information should be disclosed to the defense.
DISPOSITION
The order to pay $254.31 in attorney fees and $200 toward a drug treatment program is reversed and remanded to the trial court with instructions to conduct a hearing to determine Alonso’s ability to pay pursuant to Penal Code sections 987.8 and 1210.1. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J. BIGELOW, J.