Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct.No. CC509187
Duffy, J.
A jury convicted defendant of two counts of lewd or lascivious acts on a child under age 14 accompanied by force or other coercion (Pen. Code, § 288, subd. (b)(1)) and one count of lewd or lascivious acts on a child under age 14 (id., subd. (a)). The victim was defendant’s next-door neighbor. Defendant was sentenced to nine years in state prison. (The architecture of the sentence will be set forth in our review of defendant’s third claim, post, at pp. 3-3.)
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court abused its discretion in denying him a continuance so he could be represented by privately retained counsel rather than his current counsel, the public defender; that the court abused its discretion in allowing the prosecution to introduce certain evidence; that defendant was entitled to have the jury find, using the beyond a reasonable doubt standard, whether for sentencing purposes his crimes occurred on separate occasions; and that the court’s order to pay attorney fees must be reversed.
We will affirm the judgment with a modification to set aside the award of attorney fees.
FACTS
I. Prosecution Case
The victim, called Edgar Doe in court, was 11 years old at the time of the crimes. He, his mother Maria E., a San Jose Police officer who responded to the crime scene, and a detective testified for the prosecution. Their testimony provided evidence that in the late afternoon of October 23, 2005, defendant invited Edgar to his house to watch one of the movies from the “Batman” (Warner Brothers Pictures ____) series. Defendant wanted to close the front door but left it open at Edgar’s behest. The movie was set to run in defendant’s bedroom. While both were in the bedroom watching it, defendant made three or four trips to the bathroom, which was elsewhere in the house. Returning from one of those trips, he picked up a bottle of a common analgesic salve, Vicks VapoRub, from near his bed and told Edgar that he had just suffered a zipper cut to his penis in the bathroom. He asked Edgar to apply the unguent to his penis to soothe the cut. Edgar declined. Defendant stuck one of Edgar’s fingers in the material but Edgar wiped it off on a blanket that was on the bed. Defendant then began kissing Edgar’s right side from his hand to his neck, rubbed Edgar’s chest, forced Edgar to move his hand up and down on defendant’s erect penis, and pressed his penis against Edgar. Edgar tried to escape, but defendant pulled him back onto the bed and, forcing Edgar to lie on top of him with Edgar’s back to his front, moved his penis up and down near Edgar’s bottom. Neither’s clothes were removed at any point during the series of sexual assaults. At some point during the crimes, defendant turned off the bedroom lights and closed the door.
Edgar, by this point crying and screaming, again tried to escape and this time succeeded, running first into the kitchen, from which there was no egress, and then to the open front door and outside. Defendant followed him, and, holding the jar of VapoRub, exposed himself at the front door and again asked Edgar to apply the salve to his erect and exposed penis. Edgar, still crying, instead summoned his mother, Maria E., and gave her a brief account of the incident. By then defendant had rearranged his clothes and was no longer exposing himself. Maria E. struck defendant in the face and berated him. Edgar thereafter recounted the molestation in detail to his mother and she called the police. A San Jose police officer found Edgar crying. Defendant had left his house, but the police recovered a bottle of Vicks VapoRub from a couch in the living room and Edgar identified the bottle in court; it was distinctive to him because he recognized the impression his finger had left in the unguent when defendant forced him to make contact with it. A detective later detected the odor of what he believed to be VapoRub on bedding that the police took from defendant’s bed.
II. Defense Case
Defendant testified on his own behalf and denied molesting Edgar. Rather, defendant was already watching the “Batman” movie, took a break, saw Edgar, and invited him to watch it. Edgar, after getting permission from his mother, began to watch the movie while sitting on defendant’s bed. Defendant left open the house’s front door not because Edgar asked, but because it was customary for the residents to leave it open whenever someone was home. Edgar soon mentioned that he had already seen the “Batman” movie and defendant told Edgar that he should leave. Defendant wanted Edgar to leave so that he could go to a bar to drink beer. The two of them started to leave the house, and as they were doing so, Maria E. appeared at the front door, slapped defendant, and accused him in effect of wanting to molest Edgar. Defendant did not return home for days after the encounter with Maria E., but two days later he called his house mate and learned that he was wanted for a crime. Defendant had used Vicks VapoRub that day, but only on his nose. On cross-examination, defendant acknowledged that he made no effort to ask Maria E. why she was accusing him of wanting to molest Edgar, or ask Edgar about the possible reasons for Maria E.’s anger, but instead proceeded to a neighborhood bar. In response to the prosecutor’s final questions, defendant testified that both Edgar and Maria E. had lied in court about the incident.
Defendant’s house mate, José Solano, testified that he had shared living quarters with defendant for almost a decade and that no one had ever complained about defendant’s conduct with children, even though Solano and defendant sometimes shared living space with families that had small children. The court, reading from one or more written questions submitted by jurors, asked whether Solano had ever heard defendant “talk or comment about minors in an inappropriate way” or known defendant to possess child pornography, and Solano answered no. Solano saw Edgar speaking with the police on the day of the incident and perceived that Edgar was behaving normally for a child of his age and was not crying. The jar of VapoRub, which Solano ordinarily kept in the bedroom in which the incident occurred, belonged to Solano; he noticed that the police had confiscated it, along with a comforter from the bed and the “Batman” movie.
On cross-examination, Solano testified that defendant did not come home on the night of the day of the alleged incident. In response to a question from the court, apparently submitted in writing by a juror, Solano clarified that such an absence was not unusual. Solano first spoke to defendant about three days later by telephone and told him the police were looking for him.
Responding to another written juror’s question, Solano testified that defendant did not know Solano’s work schedule and could not have been sure that Solano would not arrive home as the alleged incident was unfolding.
III. Prosecution Rebuttal Case
Juan Guerra testified that he encountered defendant outside a liquor store, but he could not recall when. Guerra chose to speak with defendant because Guerra, a rug-cleaner, was seeking work. Defendant told Guerra that Maria E. was accusing him of molesting Edgar but that he was not guilty, and that Edgar had run out of his house screaming.
San Jose Police Detective Mark Mabanag testified that Guerra told him he met defendant on October 23, 2005, i.e., the day of the incident. The police obtained Guerra’s information because he stopped by defendant’s house looking for work on October 24, 2005, while police were there.
DISCUSSION
I. Denial of Continuance Sought to Enable Private Counsel to Prepare to Represent Defendant
Defendant claims that his right to the assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution was violated when the trial court abused its discretion by denying his motion for a continuance so that private counsel could represent him.
A. Procedural Background
Counsel from the Santa Clara County Public Defender’s Office and the prosecution were ready to try this case on March 20, 2006, when private counsel defendant had retained appeared and requested a three-week continuance so that he could assume the representation of defendant. Private counsel claimed that not to allow a continuance would violate defendant’s right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and to the assistance of counsel under the Sixth and Fourteenth Amendments thereto.
Private counsel explained why he should represent defendant. “This case is approximately 58 days old. It’s not a case that within the constraints and the experience of Santa Clara County administration of justice requires that it go out to trial. I am very concerned, your Honor, with reference to the application of the administration of justice in this county as it applies to Mexican and Mexican-American defendants. [¶] The record will reflect, if one were to go to data base, that the 288 Penal Code Sections are exorbitantly applied against a certain ethnic community, which is Mexican, Mexican-American, that the sentences and the prison sentences for these individuals also is disproportionate as to the population. [¶] . . . [¶] . . . [T]he approach is similar when a defendant comes to this Court requesting the ability to substitute in more experienced and able counsel to defend him so that he is guaranteed his Constitutional right to due process and adequacy of counsel. When there is a denial at this stage of the game, where he has not been dilatory but diligent in his efforts to obtain counsel, he is being denied that Constitutional right. [¶] Also, as applied to him as a part and parcel of the Mexican-American, Mexican community in this state and in this county he’s also subject to the cavalier, as I’ve indicated, as well as misapplication, over representation as to 288s being charged, as well as individuals being sentenced and convicted of same. [¶] [Defendant] would be requesting only a three-week continuance to allow for his counsel, if his counsel were allowed to substitute in at this stage, to go forward with this matter. Three weeks is not highly prejudicial to the prosecution. It doesn’t violate the petition on the part of the People to have a speedy and expeditious trial on the basis of the minor involved in this case.”
The record shows, however, that defendant is a Guatemalan who entered the United States 10 years before the crimes.
The prosecutor, however, objected to the last-minute request for a continuance so that private counsel could prepare to try the case. She told the trial court that she had only learned of defendant’s plan that day and noted that there had already been a continuance to begin trial of about four weeks at the request of the defense and that more delays would further disrupt the schedules of the witnesses, who had already been on standby for a week. “I know that the victim and his family are very anxious about this case and [want] to get it over with and behind them.” Current defense counsel told the court that defendant had told him he would prefer to be represented by his private counsel, but both parties agreed that they were ready for trial.
Before announcing its ruling, the trial court commented as follows: “This is the day of trial, number one. The case was not put before any judge for a continuance motion, including last Wednesday’s after arraignment calendar, for such a motion or for substitution of counsel. [¶] Now you’ve informed the Court . . . that the defendant was first able to retain you on Friday. The People were not put on notice, however, . . . that you would attempt to substitute in and continue this case . . . until this morning. . . . [¶] Now . . . not only is it the day of trial but this is a 1048 demand case. It’s stated on the Complaint. . . . And I was not aware that the case was continued once before in the trial Court . . . but I see that now. I do know the case . . . had a number of Court appearances . . ., at least five or six, from what I can see of the file.”
Because Edgar was 11 years old and separately because defendant was charged with violating section 288 by force or other coercion (see id., subd. (b)(1)), the case was subject to speedy-trial specifications set forth in section 1048. Section 1048, subdivision (b) requires, as relevant here, that when “a minor . . . is the victim of the alleged offense” and, separately, when “any person is a victim of an alleged violation of Section . . . 288 . . ., committed by the use of force, violence, or the threat thereof,” the criminal action “shall be given precedence over all other criminal actions in the order of trial. In those actions, continuations shall be granted by the court only after a hearing and determination of the necessity thereof, and in any event, the trial shall be commenced within 30 days after arraignment, unless for good cause the court shall direct the action to be continued, after a hearing and determination of the necessity of the continuance, and states the findings for a determination of good cause on the record.”
The trial court continued its comments leading to its ruling as follows: “So defendant’s had a Public Defender since November 1st, so we’re talking about roughly four and a half months here. The child is 11 years old, and given the nature of the charge, which is a forcible molest charge . . . I can only conclude that the allegations are serious because it is a 288(b). [¶] The boy is of tender years, he’s under the age of 14, and the Court takes all that into account, as well as the 1048 preference, the fact that the legislature prefers these types of cases to be tried within 30 days of arraignment on the Information, and we’re on, I think, the 59th day.”
The trial court concluded its comments as follows: “I’m also taking into account . . . that I know [current defense counsel] has been defending serious cases now for around four years . . . and I believe that [defendant] will get a competent defense . . . . [¶] . . . I do not feel his defense is going to be in any way lessened as far as the adequacy of it.”
Thereupon the trial court denied defendant’s motion for a continuance.
B. Discussion
The standard of review of a trial court’s ruling on a motion for continuance is well settled. “[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [¶] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.” (People v. Beames (2007) 40 Cal.4th 907, 920.)
Within reasonable limits, defendants enjoy the right to retain the counsel they choose, and, also within reasonable limits, they are entitled to continuances so that they may exercise that right. (People v. Courts (1985) 37 Cal.3d 784, 789-791 (Courts).) Any other manner of proceeding infringes on their rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. (See ibid.) Nevertheless, the right to a continuance for these purposes is not absolute, if for no other reason than that the underlying rights are not absolute. (See ibid.; People v. Beames, supra, 40 Cal.4th at p. 921; see also People v. Gzikowski (1982) 32 Cal.3d 580, 586-587.) “[N]ot every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence.” (Beames, at p. 921.) In particular, the right to a continuance so that a criminal defendant may be represented by privately retained counsel whom the defendant prefers “ ‘must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.’ [Citation.]” (People v. Blake (1980) 105 Cal.App.3d 619, 624.) A “defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial.” (Id. at pp. 623-624.)
Courts, supra, 37 Cal.3d 784, held that the trial court abused its discretion by refusing to grant a continuance to permit the defendant to be represented by an attorney he retained prior to trial. In that case, the trial was scheduled for October 26, 1982. In September the defendant, then represented by the public defender, contacted a private attorney to discuss his representation. The defendant lacked funds but was trying to raise them. In early October, the attorney went on vacation, expecting to return on October 18. At a trial setting conference on October 18, the defendant asked for a continuance to hire the attorney. The court denied the request as untimely. Also that day, the attorney agreed to take the case if the trial date was continued and defendant raised the necessary money. On October 21 the defendant had raised the money and the attorney thereupon tried, without success, to calendar motions to substitute attorneys and for a continuance. The attorney made additional efforts before the trial date to have these motions heard. These, too, did not succeed. On the trial date, October 26, the defendant’s motion for continuance was renewed, also without success. (Id. at pp. 787-788.)
In concluding that the trial court abused its discretion by denying the continuance, Courts emphasized, among other things, that the defendant had “engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date” (Courts, supra, 37 Cal.3d at p. 791) and that he “conscientiously informed the court of his efforts as early as October 18th and made a motion for continuance on that date.” (Ibid.)
Courts contrasted the case’s procedural background with “the eve-of-trial, day-of-trial, and second-day-of-trial requests” made and denied in several specific cases. “In those cases, the Courts of Appeal found the lateness of the continuance request to be a significant factor which justified a denial where there were no compelling circumstances to the contrary. [Citation.]” (Courts, supra, 37 Cal.3d at p. 792, fn. 4.)
Defendant made his motion for a continuance on the day of trial. The case had a statutory preference for early trial because of Edgar’s age and the charged offense. Both parties were ready for trial. The prosecutor expressed concern about inconvenience to witnesses. All of these factors militated against a continuance. (See People v. Beames, supra, 40 Cal.4th at p. 921 [“trial had been scheduled to begin that very day,” “the prosecution had already issued subpoenas to its 40 potential witnesses,” and “defendant did not refute the prosecutor’s claim that the requested delay would cause hardship with regard to these witnesses”]; cf. Courts, supra, 37 Cal.3d at pp. 794-795 [“the prosecutor failed to express any valid concern about an inconvenience to witnesses which might have resulted if a continuance had been granted.”].) The trial court knew the record of the deputy public defender and expressed confidence in his ability to represent defendant well. Defendant’s expression of dissatisfaction with the deputy public defender was nebulous—counsel explained on defendant’s behalf that “[h]e is not confident in my representation and would prefer to go with [private counsel].”
The lateness of defendant’s request and the orderly and expeditious administration of justice support the trial court’s exercise of discretion. Defendant’s excuse for the delay in obtaining private counsel—that it was only shortly before the day of trial that he had been able to raise the money for private representation—states a legitimate reason that he could not retain counsel sooner. But it is only one factor to be considered and, like other considerations advanced by defendant, one that did not make the trial court’s decision unreasonable in light of the factors favoring the start of trial on that day.
Accordingly, defendant has failed to demonstrate that the trial court’s denial of his request for a continuance was an abuse of discretion. The Courts decision encompasses constitutional guaranties (Courts, supra, 37 Cal.3d at pp. 789-791) and its guidance directs our result with regard to defendant’s constitutional claim as well. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Under Courts, defendant has not demonstrated a violation of his Sixth Amendment rights. (Cf. Courts, supra, 37 Cal.3d at pp. 789-791, 795, fn. 10.)
II. Claim of Admitting Unduly Cumulative Evidence
Defendant claims that the trial court abused the discretion conferred on it by Evidence Code section 352 in admitting evidence that was substantially more prejudicial than probative because it was unduly cumulative on an emotionally charged subject, namely the effect on Edgar of the charged crimes. We find no abuse of discretion.
The prosecution sought to admit evidence of Edgar’s statements to his mother, Maria E., via her testimony, an audio recording of her phone call to the emergency services number in which Edgar could be heard crying in the background, a video recording of Edgar’s statements to Detective Mabanag, Edgar’s statements to another police officer, and Edgar’s preliminary hearing testimony.
In a pretrial hearing, defense counsel argued that the evidence was inadmissible under two rules set forth in Evidence Code section 352: It was unduly cumulative and would waste time, and it was substantially more prejudicial than probative, i.e., unfairly inflammatory.
The prosecutor asserted that the evidence was not cumulative because each piece of it served a separate purpose. First, Edgar’s memory might not be perfect at trial and his initial statements might fill in gaps in his trial testimony. Second, Maria E. could describe the distress with which Edgar told her about the incident immediately after it occurred. The prosecutor stated, “When the child comes out of [defendant’s] home, I think it’s fair to say that he’s hysterical.” The audio recording of the call to the emergency services number, in which Edgar could be heard in the background, also would establish that Edgar was not feigning. “[A]gain it’s fair to say that he is hysterical,” the prosecutor contended. “At the very end of the call the 911 operator asks the mother, is he okay? Is he hurt? What is wrong with him? Why is he crying like that?”
The trial court agreed with the prosecutor’s views and tentatively ruled that the evidence could be admitted except the preliminary hearing testimony. The court excluded that evidence as cumulative. The court invited defense counsel to object at the time the foregoing recorded evidence was about to be played to the jury so that the court could reconsider the posture of the case, and defense counsel did so, but the court ruled against defendant.
Although defendant discusses the prejudicial effect of introducing testimony he views as cumulative under Evidence Code section 352, it appears that his claim rests ultimately on an argument that the evidence was substantially more prejudicial than probative in a general sense under that Evidence Code section. In either case, the standard is the same. Evidence Code section 352 provides that the trial court is charged with exercising discretion in ruling on these matters. And case law applies the same standard whether the focus is on unduly prejudicial evidence in a general sense or because of prejudice arising from the cumulative nature of evidence. “In ruling on the question whether evidence is substantially more prejudicial than probative, the trial court enjoyed broad discretion.” (People v. Ayala (2000) 24 Cal.4th 243, 282.) Similarly, “the trial judge may, in his discretion, exclude cumulative, although relevant, evidence to avoid confusing the jury or wasting the time of the court.” (Fuentes v. Tucker (1947) 31 Cal.2d 1, 7.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
We find no abuse of discretion. The trial court reasonably found that the evidence would be probative of Edgar’s mental state immediately after defendant sexually assaulted him, and that it would convey to the jury aspects of the case that Edgar’s testimony in court would not. The court had not changed its view when defendant renewed his objections during the trial’s evidentiary phase, and on this record we cannot say that its rulings fell outside the bounds of reason. Accordingly, defendant is not entitled to relief on this claim.
III. Imposition of Consecutive Sentences
Defendant claims that his right to trial by jury under the Sixth Amendment to the United States Constitution was violated when the trial court sentenced him (albeit to the lower term on each of the three counts) to full consecutive sentences under section 667.6, subdivision (d), which requires full consecutive sentences when the court finds that the same victim was sexually assaulted on “separate occasions.” Defendant argues that because the jury did not make this finding beyond a reasonable doubt, he may not be sentenced under the mandatory consecutive sentencing scheme. We disagree.
Section 667.6, subdivision (d), provides that “[a] full, separate, and consecutive term shall be imposed” for each conviction of certain sex crimes, including those of which defendant was convicted, if they “involve the same victim” but take place “on separate occasions.”
After hearing the parties’ argument on whether or not the crimes occurred on separate occasions within the meaning of section 667.6, subdivision (d), the trial court found that they did, finding that “Mr. Mejía Chun had reasonable opportunity to reflect upon his actions and he nevertheless resumed sexually assaultive behavior on the victim.” Accordingly, the court sentenced defendant to full consecutive terms for the two forcible molestations (§ 288, subd. (b)(1)), although, because of defendant’s lack of a significant prior criminal history, the court imposed the lower term on each count. The court ordered that the terms for the forcible molestations counts each run consecutive to the term for the non forcible molestation (id., subd. (a)). As noted, defendant’s total sentence is nine years in state prison.
A. Forfeiture
The People argue that defendant has forfeited this claim because he failed to raise the matter before the trial court. Defendant, naturally, disagrees.
In most cases “an appellate court may review a forfeited claim—and ‘[w]hether or not it should do so is entrusted to its discretion.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; cf. id., p. 888, fn. 7, 3d par. [appellate courts lack discretion to review otherwise forfeited claims regarding the admission or exclusion of evidence].) Moreover, Sheena K. held that if a facial constitutional challenge on over breadth and vagueness grounds to a probation condition presents “a pure question of law, easily remediable on appeal by modification of the condition” (id. at p. 888), it is not forfeited despite failure to raise it in the superior court. Defendant’s claim here, though presenting a different constitutional challenge, is purely legal, and we will review it on the merits either because we are required to do so under Sheena K. or because we choose to do so as permitted by Sheena K.
B. Discussion
As noted, the imposition of consecutive sentences rested on a fact not found by the jury beyond a reasonable doubt, i.e., that the two counts of forcible molestation were committed on “separate occasions” under section 667.6, subdivision (d). The question is whether the imposition of full consecutive sentences in the absence of such a finding violates the Sixth Amendment to the United States Constitution as construed in such cases as Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466. We agree with People v. Groves (2003) 107 Cal.App.4th 1227 (Groves), that there is no Sixth Amendment violation.
Groves, supra, 107 Cal.App.4th 1227, reasoned that imposing full consecutive sentences under subdivision (d) of section 667.6 “does not constitute an increase in the maximum possible sentence” (Groves, supra, at p. 1231) for purposes of the principles stated in Apprendi.
The Groves court reasoned, in our view correctly, as follows: “The facts setting the maximum term of a sentence and the trial court’s power to impose that sentence are not elements of the crime for purposes of federal constitutional law. Within the range of sentence authorized by the jury’s verdict, a trial court may exercise its discretion and expertise to impose a sentence.” (Groves, supra, 107 Cal.App.4th at p. 1231.) “A trial court may impose a full consecutive term for [an eligible second offense], even if both offenses were committed during a single transaction. In such a situation, the trial court must offer a statement of reasons in support of its discretionary sentencing choice. (See § 667.6, subd. (c); Cal. Rules of Court, rule 4.406(b)(6).) If the trial court finds that both offenses were committed on separate occasions as the court did in [this] case, the trial court must impose the full consecutive term for the second offense. (See § 667.6, subd. (d).) The mandatory imposition of this maximum possible sentence [as authorized by the verdict] does not constitute an increase in the maximum possible sentence. Thus, . . . federal constitutional due process principles do not require that this finding be made by proof beyond a reasonable doubt.” (Ibid.) “[N]either does this sentence factor require a jury’s input. In this case, the trial court properly made the finding it did by a preponderance of evidence and without submitting the issue to a jury.” (Id. at p. 1232.)
Groves predated Blakely v. Washington, supra, 542 U.S. 296, but the rationale of Groves continues to be operative following Blakely. “The determination whether two or more sentences should be served [consecutively] is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [People v. Black (2005) 35 Cal.4th 1238, 1264.] Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (People v. Black (2007) 41 Cal.4th 799, 823.) In light of the California Supreme Court’s 2007 Black decision, we adhere to the holding of Groves and reject defendant’s claim.
IV. Claim of Error Regarding Imposition of Attorney Fees
Defendant claims that the trial court erred in imposing a $2,000 award of attorney fees to the public defender’s office. We agree and will modify the judgment to set aside the award.
The trial court could not remember whether it had held a hearing on attorney fees but said that if it did, “that fee order stands,” and if it did not, “I’ll make one right now.” It summarily ordered defendant to pay $2,000 to the public defender’s office.
A. Forfeiture
The parties disagree whether defendant has forfeited his claim by failing to complain of the trial court’s summary order at the sentencing hearing to impose attorney fees. We will exercise our discretion to review defendant’s claim on the merits. (In re Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.)
B. Discussion
Section 987.8, subdivision (b), provides, as relevant here: “In 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.” (Italics added.)
Neither party is able to point to any other place in the record showing that a prior hearing on attorney fees was conducted. Thus, this case stands in the same posture as People v. Flores (2003) 30 Cal.4th 1059, in which “[a]t sentencing, without having given him the notice or hearing required by section 987.8[, subdivision] (b), the trial court ordered defendant” (id. at p. 1062) to pay attorney fees. Leaving aside the question of notice, it is evident from Flores that summarily awarding attorney fees at sentencing without conducting a hearing on the issue at that time, if there was no previous hearing on it, is inadequate.
In People v. Flores, supra, 30 Cal.4th 1059, the case was remanded to the trial court to “make an informed decision” (id. at p. 1069) about the defendant’s ability to pay attorney fees. Flores observed that the defendant “may not be able to pay the $5,000 ordered by the trial court, but he may be able to pay something, and if he can, he is obligated by the statute to do so.” (Id. at pp. 1068-1069.)
The Legislature has found, with respect to a criminal defendant’s obligation to pay attorney fees, that “[u]nless 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.” (§ 987.8, subd. (g)(2)(B).)
In remanding the question to the trial court, Flores noted that the defendant had been stably employed and was found with $1,500 in jewelry. (People v. Flores, supra, 30 Cal.4th at p. 1068.) Moreover, his prison sentence was three years. (Id. at p. 1062.) In this case, we see no evidence that defendant is as well situated financially as the Flores defendant appeared to be. The People note that defendant was able to gather the money needed to retain private counsel, but we cannot tell if defendant did so from his own funds or from loans and/or gifts advanced by one or more third parties solely for that purpose. Defendant, unlike the Flores defendant, has been sentenced to nine years in prison. Although the record does not definitively reveal defendant’s citizenship status or show that the federal government has placed an immigration hold on him, it strongly suggests that defendant is a Guatemalan citizen and is not also a United States citizen. It is likely, therefore, that after serving his sentence he will be permanently deported to Guatemala as an undesirable alien. (8 U.S.C. §§ 1101, subd. (a)(43)(F), 1227, subds. (a)(1)(B), (a)(2)(A), (a)(2)(E)(i).) Finally, the cost to the public of remanding this case for the trial court to set the amount of attorney fees could well approach $2,000. Given all of the circumstances of the case, it will better serve judicial economy to set aside the attorney fees award, and we will do so.
DISPOSITION
The judgment is modified to set aside the award of $2,000 in attorney fees under Penal Code section 987.8. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the Department of Corrections. As modified, the judgment is affirmed.
WE CONCUR: Mihara, Acting P. J. McAdams, J.