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People v. Bailey

California Court of Appeals, Second District, Seventh Division
Jul 21, 2008
No. B202007 (Cal. Ct. App. Jul. 21, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. VA089479, Roger T. Ito, Judge.

Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.


JACKSON, J.

INTRODUCTION

Pursuant to a plea agreement, defendant Antonio Romedra Bailey pled no contest to indecent exposure with a prior (Pen. Code, § 314, subd. (1)) and admitted he previously was convicted of a violation of section 288, subdivision (c). Thereafter, the court imposed the agreed upon sentence of 16 months in state prison. In addition to a restitution fine of $200 (§ 1202.4, subd. (b)), a parole revocation fine of $200 (§ 1202.45) and a court security fee of $20 (§ 1465.8, subd. (a)(1)), the court ordered defendant to pay attorney’s fees pursuant to section 987.8, a matter not discussed during plea negotiations. Although the court did not specify the amount of attorney’s fees to be paid, the court’s minute order lists the amount of fees to be paid as $268.

All further statutory references are to the Penal Code.

The facts of defendant’s crime are not relevant to a resolution of this appeal.

The information designated defendant’s prior as a “strike” within the meaning of section 667, subdivisions (b) through (i), and section 1170.12. When describing the terms of the plea agreement, the prosecutor advised the trial court that defendant would be entering a plea to the sole count of the information and would admit the prior. With regard to the prior, the prosecutor explained, “It’s not a strike. It’s not going to change the disposition. It just makes it a felony. And the agreed-upon dispo is 16 months in the state prison.” At the time defendant entered his plea and admitted his prior, the court asked, “are you sure that 288(c)(1) is not a serious — ” at which point the prosecutor interjected, “I am. I ordered that file, I looked at it myself. And the way it was pled, the way we charged it and what he pled to, it’s not a strike.” The court replied, “Okay. Fair enough. All right.”

Defendant thereafter filed a timely notice of appeal “raising . . . matters after entry of plea.” He contends the order directing him to pay attorney’s fees must be stricken, in that the trial court failed to provide him with notice and a hearing as required by section 987.8 and the record reflects an inability on his part to pay the attorney’s fees. We conclude the trial court failed to comply fully with the procedural safeguards of section 987.8 and substantial evidence does not support the court’s implied finding that defendant had the ability to pay for all or part of his representation. We further strike the order requiring defendant to pay attorney’s fees. In all other respects, the judgment will be affirmed.

Inasmuch as this appeal involves a post-plea matter that does not challenge the validity of the plea, no certificate of probable cause is required. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1096; People v. Earp (2008) 160 Cal.App.4th 1223, 1228.)

DISCUSSION

Applicable Law

An assessment of attorney’s fees against a criminal defendant involves the taking of property, triggering constitutional concerns. Due process, therefore, requires that the defendant be afforded notice and a hearing before such a taking occurs. (People v. Amor (1974) 12 Cal.3d 20, 29-30; People v. Phillips (1994) 25 Cal.App.4th 62, 72.)

Section 987.8 sets forth the statutory procedure for ascertaining a criminal defendant’s ability to repay the county for the cost of services rendered by court-appointed counsel. Subdivision (b) provides that “[i]n any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, 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. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.”

The notice to be given the defendant must contain “(1) A statement of the cost of the legal assistance provided to the defendant as determined by the court. [¶] (2) The defendant’s procedural rights under this section. [¶] (3) The time limit within which the defendant’s response is required. [¶] (4) A warning that if the defendant fails to appear before the designated officer, the officer will recommend that the court order the defendant to pay the full cost of the legal assistance provided to him or her.” (§ 987.8, subd. (d).)

At the hearing, “the defendant shall be entitled to, but shall not be limited to, all of the following rights: [¶] (1) The right to be heard in person. [¶] (2) The right to present witnesses and other documentary evidence. [¶] (3) The right to confront and cross-examine adverse witnesses. [¶] (4) The right to have the evidence against him or her disclosed to him or her. [¶] (5) The right to a written statement of the findings of the court.” (§ 987.8, subd. (e).)

In the event “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 in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. Failure of a defendant who is not in custody to appear after due notice is a sufficient basis for an order directing the defendant to pay the full cost of the legal assistance determined by the court. The order to pay all or a part of the costs may be enforced in the manner provided for enforcement of money judgments generally but may not be enforced by contempt.” (§ 987.8, subd. (e).)

The Trial Court Failed to Comply Fully with the Procedural Safeguards of Section 987.8

Although the trial court complied with section 987.8, subdivision (f), by advising defendant at his arraignment that a determination of his ability to pay for the cost of counsel would be made at the conclusion of criminal proceedings, it failed to comply with the provisions of section 987.8 that come into play once criminal proceedings have concluded.

Subdivision (f) of section 987.8 provides: “Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. The notice shall inform the defendant that the order shall have the same force and effect as a judgment in a civil action and shall be subject to enforcement against the property of the defendant in the same manner as any other money judgment.”

At no time prior to sentencing was defendant given notice that a hearing would be held to determine his ability to reimburse the county for the cost of his defense, and no portion of the sentencing hearing was dedicated to an ascertainment or discussion of defendant’s ability to pay for the cost of his defense. The court simply announced that defendant would be responsible for paying attorney’s fees. Also absent from the record is any evidence as to the actual amount expended by the county on defendant’s representation. Stated otherwise, the record in this case is completely devoid of any showing of compliance with section 987.8, subdivisions (b), (d) and (e).

Defendant Has Not Forfeited His Claims

The People do not dispute that the trial court failed to comply fully with the procedural safeguards of section 987.8. They urge us to conclude, however, that defendant’s failure to interpose an objection below constitutes a waiver or forfeiture of all of his contentions on appeal. We do not agree.

Implied in the trial court’s order requiring defendant to pay attorney’s fees is a finding that defendant had the ability to pay such fees. Defendant’s assertion that the record reflects an inability on his part to pay the attorney’s fees is a challenge to the sufficiency of the evidence supporting the court’s implied finding. No objection is required below to preserve such a challenge for appeal. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537; accord, People Rodriguez (1998) 17 Cal.4th 253, 262.)

In People v. Lopez, supra, 129 Cal.App.4th 1508, the court prefaced its statement that a challenge to the sufficiency of the evidence supporting a finding may be raised for the first time on appeal with the words, “In the absence of a guilty plea.” (Id. at p. 1537.) To the extent Lopez can be construed as precluding review of a challenge to the sufficiency of an attorney’s fee order simply because the defendant was convicted following a plea of guilty or no contest, we are not in agreement.

The “‘[a]bility to pay’ means 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 discernible 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 discernible 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.” (§ 987.8, subd. (g)(2); italics added.)

Here, the trial court sentenced defendant to state prison for 16 months. Absent a finding of unusual circumstances, defendant is presumed to be unable to reimburse the court for the cost of his defense. The court did not make an express finding of unusual circumstances, and the record before us discloses no basis for such a finding.

The only information in the record pertinent to defendant’s ability to pay is contained in the probation report, which was prepared in April 2007. The report noted that defendant was unemployed. He last had been employed as a truck driver for five years and had been paid $2,000 per month. This information was “unverified,” however. With regard to his financial status, the report noted that his primary source of income was himself. His income stability was listed as unknown. He currently had no net monthly income and no secondary sources of income. Although he had no liabilities, he had no assets either. Defendant was not married, but he had been cohabiting with a woman for three years, and there were two children from this union. In light of the record, we are compelled to conclude that the court’s order directing defendant to pay attorney’s fees is not supported by substantial evidence of his ability to pay.

On our own motion, we have augmented the record on appeal to include the superior court file. (Cal. Rules of Court, rule 8.155(a)(1)(A).)

This Is Not an Appropriate Case for Remand

The question remaining is whether this is an appropriate case for remand. Defendant contends it would be an “idle gesture” to remand for further proceedings, in that there is “no realistic probability” the court would determine he has the ability to pay attorney’s fees in light of the other fees imposed and his job history as reflected in the probation report. We agree.

Unlike People v. Flores (2003) 30 Cal.4th 1059 in which the California Supreme Court concluded that “a showing of unusual circumstances was conceivable” because the probation report stated that the defendant possessed a substantial amount of jewelry at the time of sentencing (id. at p. 1068), there is nothing in the record suggesting that a showing of unusual circumstances is conceivable here. Judicial economy compels us to strike the order imposing attorney’s fees.

DISPOSITION

The order directing defendant to pay attorney’s fees in the amount of $268 is vacated. In all other respects, the judgment is affirmed.

We concur: PERLUSS, P. J., WOODS, J.

At his arraignment, the trial court advised defendant “in any case in which you are furnished a lawyer, either through the Public Defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, the court shall make a determination of your present ability to pay all or a portion of the cost of counsel. If the court determines that you have the present ability to pay all or part of the cost, it shall order you to pay the sum to the county in any installments and manner which it believes reasonable and compatible with your financial ability. Execution may be issued on the order in the same manner as on a judgment in a civil action.”


Summaries of

People v. Bailey

California Court of Appeals, Second District, Seventh Division
Jul 21, 2008
No. B202007 (Cal. Ct. App. Jul. 21, 2008)
Case details for

People v. Bailey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTONIO ROMEDRA BAILEY, Defendant…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Jul 21, 2008

Citations

No. B202007 (Cal. Ct. App. Jul. 21, 2008)