Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA103935, Roger Ito, Judge.
Cynthia A. Thomas; California Appellate Project, Jonathan B. Steiner and James A. Uyeda, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Rosendo Avila appeals from the judgment imposed after he admitted a previous conviction of theft of an automobile (Veh. Code, § 10851), and a jury then convicted him of petty theft with a prior conviction (Pen. Code, § 666; undesignated section references are to that code). Sentenced to a term of two years, appellant contends that the court erroneously required him to reimburse the cost of his defense (§ 987.8, subd. (e)), without affording notice and a hearing to determine his ability to pay (§ 987.8, subd. (b)). Respondent agrees, but argues that the error was forfeited by failure to object. We conclude that insofar as it requires appellant to reimburse defense costs, the judgment must be reversed for further proceedings. In all other respects, the judgment is affirmed.
FACTS
Because the issues on appeal relate to reimbursement of attorney costs, the facts of the offense need not be extensively stated. On January 8, 2008, appellant was apprehended by security personnel at a market in Cudahy while leaving with a cart full of groceries for which he had no receipt. Questioned further, appellant admitted taking the items. In defense, appellant testified he had gone shopping with two men and a woman. One of the men, Manzano, told appellant the groceries had been paid for by the others. Appellant pushed the cart out and was stopped. Manzano also testified, stating that the other man and the woman told him the goods had been purchased, and he told appellant.
Appellant was represented at trial and through sentencing by a deputy public defender. At initial sentencing, the court imposed a 16-month lower term sentence, doubled because of a prior strike conviction for felonious assault (§ 245, subd. (a)(1)), which appellant had admitted and the court had refused to strike. After ordering appellant to pay restitution and parole violation fines, the court said: “Defendant’s ordered to pay fees, attorney’s fees, in the amount of $8,265.18, that being the agreed-upon amount for a public defender trial disposition.” Appellant’s counsel did not object.
Ten days later, the court reconsidered and granted appellant’s motion to strike the prior and resentenced appellant to the mid-term of two years. The court again imposed additional orders, including, “Defendant to pay attorney’s fees in the amount of $8,265.18.” Counsel voiced no objection.
DISCUSSION
Appellant contends that the order assessing attorney fees was statutorily and constitutionally improper, because it was made without either notice or a hearing to determine appellant’s ability to pay. He further contends that the order should be stricken, in view of circumstances indicating his inability to pay. Respondent agrees that appellant was not afforded the requisite notice or hearing, but contends that he forfeited the error by failing to object below. Respondent adds that, if the error was not waived, the fee question should be remanded for a hearing.
Under section 987.8, subdivision (b), upon conclusion of criminal proceedings in the trial court, the court may, “after notice and hearing,” determine the defendant’s present ability to pay all or part of the cost of legal assistance provided by the public defender (or appointed private counsel). If it determines that the defendant does have the present ability to pay, the court shall set the amount to be paid and order the defendant to pay it to the county in a manner compatible with the defendant’s financial ability. (See § 987.8, subd. (e).) The requirements of notice and hearing not only are expressly provided, they also would be implied as a matter of due process. (People v. Amor (1974) 12 Cal.3d 20, 30.)
As respondent acknowledges, the trial court’s summary order that appellant pay substantial fees was made without the required determination of ability to pay, or the attached statutory and constitutional safeguards of notice and a hearing. Respondent contends, however, that appellant’s failure to object to the fee order on these grounds resulted in a waiver or forefeiture of the right to complain now. We disagree.
First, none of the cases that respondent cites as examples of the supposed waiver presented as unnuanced a situation as here. In People v. Phillips (1994) 25 Cal.App.4th 62, the defendant claimed a deprivation of notice. After characterizing the trial court’ s failure to give notice of the reimbursement hearing as “clearly not the better practice” (id. at p. 74), the court ruled that the probation report’s listing of attorney fees as a possible issue at sentencing provided sufficient notice of the hearing that there occurred. (Id. at p. 75.) In the present case, in contrast, appellant received no notice and no hearing. In People v. Whisenand (1995) 37 Cal.App.4th 1383, the court found the lack of notice both waived by failure to object and in any event nonprejudicial, because the trial court had made its order based on evidence of ability to pay it received at a restitution hearing, in which the defendant participated. (Id. at pp. 1395-1396.) Finally, in People v. Klockman (1997) 59 Cal.App.4th 621, a claim of no hearing failed because the defendant had waived a hearing when the trial court offered to reduce the fee assessment. The reviewing court also stated that a notice claim was barred by failure to object below. (Id. at p. 628.) None of these decisions involved, as here, a complete denial of notice and hearing.
A second, independent obstacle precludes holding that appellant waived the error in the proceedings by failing to object to the fee order. Appellant’s alleged failure to object derives from his attorney’s silence. But the issues and proceedings as to which appellant’s attorney stood mute involved the assessment of fees, from appellant, for the attorney’s own office and employer. In this type of situation, People v. Viray (2005) 134 Cal.App.4th 1186 quite sensibly held that “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.” (Id. at p. 1215.) The court explained: “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... as the client’s representative....” (Ibid.) Viray also involved a deputy public defender.
Accordingly, we cannot find that appellant waived or forfeited his claims of error as to the assessment and award of attorney fees. Moreover, dispensing with notice, hearing, and determination of ability to pay, all as mandated by section 987.8, constituted reversible error insofar as the fee order is concerned. We therefore will reverse that portion of the judgment, while affirming the rest. On remand, the trial court, if it so chooses (see § 987, subd. (b)), may, in full accordance with section 987.8, determine appellant’s present ability to pay, and make an appropriate order regarding reimbursement of fees. Notwithstanding appellant’s urgings, we cannot properly make these determinations.
DISPOSITION
The judgment is reversed insofar as it requires that appellant pay $8,962.18 attorney fees under Penal Code section 987.8. In all other respects the judgment is affirmed. The matter is remanded to allow for further proceedings in accordance with that section.
I concur: RUBIN, Acting P. J.
BIGELOW, J., Dissenting.
I respectfully dissent. I would affirm the judgment in its entirety because I believe the issue of imposition of attorneys’ fees under Penal Code section 987.8, subdivision (b), has been forfeited by the failure to object in the trial court. In taking this position, I agree with a number of published cases which have come to the same conclusion. (See, e.g., People v. Phillips (1994) 25 Cal.App.4th 62; People v. Whisenand (1995) 37 Cal.App.4th 1383; People v. Klockman (1997) 59 Cal.App.4th 621.)
The majority attempts to distinguish those cases, and concludes that waiver is inapplicable here because appellant was not afforded the requisite notice or hearing. I disagree. Contrary to the majority’s conclusion, appellant received adequate notice that attorneys’ fees were going to be imposed. Defendant was first sentenced on May 20, 2008. During that hearing, the trial court stated it was imposing $8,265.18 in attorneys’ fees as “the agreed-upon amount for a public defender trial disposition.” Ten days later, the court recalled appellant’s sentence and re-sentenced him, imposing the same amount of attorneys’ fees. Having been assessed attorney fees in the first sentencing hearing, appellant cannot legitimately contend that he had no notice that attorney fees would be imposed at the second sentencing hearing following recall of the first sentence.
Further, case law holds that trial counsel’s failure to object to a fine which may be imposed only when a defendant has the ability to pay is waived by a trial counsel’s failure to object. (People v. McMahan (1992) 3 Cal.App.4th 740, 750.) That decision was cited with approval in the seminal California Supreme Court case discussing waiver of sentencing error. (See People v. Scott (1994) 9 Cal.4th 331, 352, fn. 15.)
Finally, the majority relies on People v. Viray (2005) 134 Cal.App.4th 1186 (Viray) for the proposition that a deputy public defender cannot be expected to object to a trial court ordering the payment of his own attorney fees. In Viray, it was the deputy public defender who requested the court to assess the attorney’s fees. (Id. at p. 1216.) The court held: “So far as this record shows, [the defendant] may have had no idea that an order for reimbursement was on the table until her own attorney stood up at her sentencing and asked for it. She was not, at that moment, ‘represented by counsel’ for purposes of the waiver rules on which the cited cases rely.” (Ibid.) That is not the factual situation here. In this case, the trial court imposed the attorneys’ fees on its own, without any request by the deputy public defender. To the extent Viray stands for the broad-sweeping proposition that a deputy public defender always has a conflict of interest that would interfere with imposing an objection to the imposition of attorneys’ fees, I disagree. A deputy public defender receives a salary; he or she is not paid directly by the defendant, and can be expected to fulfill his or her duty to object when a legitimate issue arises as to the legality of attorney fees.
As a result, I would find the issue has been forfeited by the failure to object and affirm the judgment.