Opinion
F061595 Super. Ct. No. F10600608
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. ERIC PAUL CELAYA, JR., Defendant and Appellant.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE COURT
Before Wiseman, Acting P.J., Cornell, J. and Detjen, J.
APPEAL from a judgment of the Superior Court of Fresno County. Carlos A. Cabrera, Judge.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Eric Paul Celaya, Jr., of vehicle theft (Veh. Code, § 10851, subd. (a)). In a separate proceeding, Celaya admitted three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
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On December 13, 2010, the court stayed one prior prison term enhancement and sentenced Celaya to a four-year term: the middle term of two years on his vehicle theft conviction and two one-year prior prison term enhancements. The court also ordered Celaya to pay attorney fees of $500 and a probation report fee of $296.
On appeal, Celaya contends the court erred when it: 1) imposed three prior prison term enhancements; 2) ordered him to pay attorney fees; and 3) ordered him to pay a probation report preparation fee. We will find merit to Celaya's contentions, strike the stayed prison term enhancement, and remand the matter to the trial court for further proceedings. In all other respects, we will affirm.
FACTS
On March 26, 2010, at approximately 4:30 a.m., a car belonging to Carolina Cisneros's husband was taken from outside their home in Reedley.
At approximately 5:10 a.m., Orange Cove Police Officer Brandon Ellis was on patrol that morning when he spotted the car as it pulled into an apartment complex parking lot. Ellis then saw Celaya exit the car through the driver's door and Michael Rocha exit through the front passenger's door. Although both men ran into an apartment, they eventually came out and were taken into custody.
DISCUSSION
The Prior Prison Term Enhancements
Celaya's three prior prison term enhancements were based on his 2001 conviction for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), his 2006 conviction for forgery (§ 470), and his 2008 conviction for grand theft (§ 487, subd. (a)). Celaya contends that the court erred when it imposed three prior prison term enhancements because he served only two prison terms on the three convictions. Respondent concedes and we agree.
Section 667.5, subdivision (b) provides that "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;..."
"[A] prior separate prison term for purposes of section 667.5 is defined as 'a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes ....' [Citations.]" (People v. Johnson (2006) 145 Cal.App.4th 895, 908.) Further, "only one enhancement is proper where concurrent sentences have been imposed in two or more felony cases." (People v. Jones (1998) 63 Cal.App.4th 744, 747.) Accordingly, since two of Celaya's prior prison term enhancements are based on the concurrent term he served on his 2001 and 2006 convictions, we will strike the enhancement that the court stayed.
The Attorney Fees
Celaya contends that the order requiring him to pay $500 in attorney fees must be reversed because: 1) he was not given notice or a hearing before these fees were assessed; and 2) the record contains insufficient evidence of his ability to pay attorney fees of $500. He further contends that he did not forfeit his challenge to the attorney fees order by his failure to object in the trial court. We will find merit to these contentions.
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 her ability to pay. (Viray, supra, at pp. 1213-1214.) The People argued the defendant forfeited those claims by failing to object at sentencing. The Viray court rejected this argument, reasoning 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 Celaya did not forfeit his appellate challenge to the attorney fees order by failing to object to the order at sentencing.
There is no dispute Celaya 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.) Further, since there is also no dispute that there is insufficient evidence to support an implied finding of Celaya's ability to pay, we will, therefore, reverse the trial court's order for reimbursement of attorney fees and remand the matter for a hearing on Celaya's ability to pay.
The Probation Report Preparation Fee
Celaya contends the trial court erred in imposing a $296 fee pursuant to section 1203.1b for preparation of the probation report without making a finding that Celaya had the ability to pay the fee. We agree.
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 he or she 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.
As with the order to pay attorney fees, the record does not show the probation officer or the court ever determined Celaya's ability to pay; 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. Ordinarily, the forfeiture rules apply to a defendant's failure to object to an order requiring the defendant to pay a probation report preparation fee. (People v. Valtakis (2003) 105 Cal.App.4th 1066.)
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 Celaya's ability to pay attorney fees. Both issues concern the same factual finding. It would be inconsistent to grant Celaya a hearing concerning his ability to pay one fee, but not the other. Under section 1260, we may remand a matter "for such further proceedings as may be just under the circumstances." We will, therefore, also reverse the trial court's order that Celaya pay $296 for the cost of preparing the probation report and remand the matter for the trial court to conduct a hearing on Celaya's ability to pay this fee.
DISPOSITION
The prior prison term enhancement that was stayed by the trial court is stricken. As modified, 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 vacated. 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.