Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1251961, John D. Freeland, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Kane, J., and Franson, J.
STATEMENT OF THE CASE
On July 9, 2009, appellant, Spencer Ezra Berry, was found guilty after a jury trial of feloniously inflicting cruel corporal punishment and injury on a 13-year-old child (Pen. Code, § 273d, subd. (a)) as charged in a first amended information. In a bifurcated proceeding on July 10, 2009, the trial court found true allegations that appellant had a prior serious felony conviction for attempted robbery (§§ 664 & 211) within the meaning of the three strikes law (§ 667, subd. (d)). The court also found true a prior prison term enhancement (§ 667.5, subd. (b)).
Unless otherwise designated, all statutory references are to the Penal Code.
On December 3, 2009, the court sentenced appellant to prison for the midterm of four years, doubled to eight years pursuant to the three strikes law, and added a consecutive term of one year for the prior prison term enhancement. Appellant’s total sentence was nine years. The court granted applicable custody credits. Without making findings concerning appellant’s ability to pay, and without prior notice from the People that they were seeking compensation for appellant’s attorney fees, the trial court imposed $600 for the cost of appellant’s representation. The court also imposed $900 in fees for the cost of preparing the probation report.
Appellant did not receive additional custody credits pursuant to section 4019 as amended on January 25, 2010. Appellant was sentenced over a month before section 4019 was amended. Because appellant has a prior conviction for attempted robbery, a serious felony under section 1192.7, subdivisions (c)(19) and (c)(39), he is not entitled to additional custody credits even if they are found to apply retroactively.
Appellant contends the trial court erred in imposing attorney’s fees and charging him with the cost of preparing the probation report. Respondent argues that both issues are subject to forfeiture for appellant’s failure to object to either fee during the sentencing hearing. As we explain, we will not apply the doctrine of forfeiture to this case and will remand the matter to the trial court to conduct a hearing on appellant’s ability to pay both fees.
Because the only issues on appeal concern fees and costs, we do not recount the underlying facts of appellant’s offense.
ATTORNEY’S FEES
Appellant contends he did not receive proper notice of a hearing on his ability to pay attorney fees pursuant to section 987.8 and that there was no evidence presented concerning his ability to pay. The People also argue that appellant forfeited his challenge to the sufficiency of the evidence supporting the court’s implied ability-to-pay finding by failing to object at sentencing to the attorney fees order.
Section 987.8 “empowers the court to order a defendant who has received legal assistance at public expense to reimburse some or all of the county’s costs.” (People v. Viray (2005) 134 Cal.App.4th 1186, 1213 (Viray).)
In Viray, supra, 134 Cal.App.4th 1186, the defendant challenged the trial court’s order to pay attorney fees under section 987.8 on several grounds, including, as here, that there was insufficient evidence to support the finding of ability to pay. (Id. at pp. 1213-1214.) The People argued the defendant forfeited those claims by failing to object at sentencing. The Viray court rejected this argument. The court reasoned that forfeiture may not properly “be predicated on the failure of a trial attorney to challenge an order concerning his own fees. 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, and indeed should not be permitted to act, as the client’s representative. Counsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment.” (Id. at pp. 1215-1216.) Viray reasoned that this rationale applies even where counsel is a public defender on salary. (Id. at p. 1216.) We agree with the reasoning of Viray and find appellant did not forfeit his appellate challenge to the attorney fees order by failing to object to the order at sentencing.
There is no dispute appellant was provided legal assistance in the instant case at the County’s expense. Under the terms of the statute, the trial court may, but only after notice and hearing, order a defendant to pay all or a portion of the costs of his legal representation if the court determines the defendant has the “present ability to pay” such costs. (§ 987.8, subd. (b).) While the finding of a present ability to pay may be implied, a section 987.8 attorney fee cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
Appellant first argues he was not provided notice of a hearing on the issue of his present ability to reimburse the County for all or a portion of the costs of his legal representation. The probation report states nothing concerning the People’s intent to seek attorney’s fees. The record is devoid of any indication that appellant was provided the notice required by statute.
Appellant also argues there was insufficient evidence to support the trial court’s implied finding that appellant had the ability to reimburse the County for costs of legal representation in the amount of $600. Section 987.8 defines “‘[a]bility to pay’” as a defendant’s “overall” financial capability to pay, and lists factors relevant to this determination. (§ 987.8, subd. (g)(2).) Those factors include “[t]he defendant’s present financial position” (§ 987.8, subd. (g)(2)(A)); “[t]he likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing” (§ 987.8, subd. (g)(2)(C)); and his or her “reasonably discernible future financial position” (§ 987.8, subd. (g)(2)(B)). In determining the last of these factors, “In no event shall the court consider a period of more than six months from the date of the hearing....” (Ibid.) Moreover, “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.” (Ibid.)
As indicated above, appellant was sentenced to nine years in prison, less presentence custody credit, and the record contains no evidence of any “unusual circumstances” (§ 987.8, subd. (g)(2)(B)) indicating appellant has a “reasonably discernible future financial ability to reimburse the costs of his... defense” or that there is any “likelihood that [he] shall be able to obtain employment within a six-month period from the date of the hearing” (§ 987.8, subd. (g)(2)(C)), except for the employment opportunities prison offers. We will, therefore, reverse the trial court’s order for reimbursement of attorney fees and remand the matter for a hearing on appellant’s ability to pay.
SECTION 1203.1b FEE
Appellant contends the trial court erred in imposing a $900 fee for preparation of the probation report pursuant to section 1203.1b without making a finding that appellant had the ability to pay the fee. Respondent argues that appellant failed to lodge an objection to the trial court’s imposition of the fee or to his ability to pay it and the issue is, therefore, subject to forfeiture on appeal.
Section 1203.1b, subdivision (a) provides that the trial court may order a defendant to pay the cost of the presentence report and costs associated with probation supervision. It directs the probation officer to make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of supervision, investigation, and reporting. The officer is also directed to inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. Subdivision (b) of section 1203.1b states that, if the defendant does not waive his or her right to a hearing, the probation officer is to refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payment shall be made.
The record does not show the probation officer or the court ever determined appellant’s ability to pay; or that he was notified he had a right to a court hearing about his ability to pay; or that he made any express waiver of his right to such a hearing. We have followed the forfeiture rule with regard to a defendant’s failure to object to imposition of fees for preparation of the probation officer’s report, relying on People v. Valtakis (2003) 105 Cal.App.4th 1066, where this cost was the only issue raised on appeal and attorney fees were not imposed.
In the instant action, however, it would be unjust to apply forfeiture where we are remanding the matter for a determination of the issue of appellant’s ability to pay attorney fees. Both issues concern the same factual finding. It would be inconsistent to grant appellant a hearing concerning his ability to pay one fee, but not the other. The People alternatively argue that if we find merit to appellant’s issue, the matter be remanded to the trial court to have a hearing on appellant’s ability to pay attorney fees. The appellant seeks a hearing as to both issues. Remanding both issues for a factual finding preserves the rights of both parties. Under section 1260, we may remand a matter “for such further proceedings as may be just under the circumstances.” We will, therefore, reverse the trial court’s order that appellant pay $900 for the cost of preparing the probation report and remand the matter for the trial court to conduct a hearing on appellant’s ability to pay this fee.
DISPOSITION
The judgment of conviction is affirmed. The trial court’s orders for reimbursement of attorney fees and for the cost of preparing the probation report are reversed. The matter is remanded for the trial court to conduct a hearing on appellant’s ability to pay these fees should the People continue to pursue them.