Opinion
H025294.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN LYNN COOK, Defendant and Appellant.
Defendant Jonathan Lynn Cook appeals from a judgment of conviction entered after he pleaded guilty to failure to register as a sex offender (Pen. Code, § 290, subd. (g)(2)). In a bifurcated proceeding, the trial court found that defendant had suffered a prior strike conviction within the meaning of the Three Strikes Law (Pen. Code, § 1170.12). After exercising its discretion to strike the prior strike conviction allegation, the trial court suspended imposition of sentence and placed defendant on probation. The trial court also ordered defendant to pay $500 in attorneys fees. We conclude that defendants challenge to the sufficiency of the evidence to support the strike prior finding is moot. We also conclude that the trial court properly imposed the attorneys fees. Accordingly, we affirm.
I. Statement of Facts
Defendant was required to register as a convicted sex offender with the authorities in San Jose by December 25, 2001, and he failed to do so.
II. Discussion
A. Prior Strike Allegation
Defendant first contends that there is insufficient evidence to support the true finding of the prior strike conviction. However, this issue is moot, because the trial court dismissed the prior strike conviction pursuant to Penal Code section 1385, and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
"[A] striking is an unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes of a specific proceeding. It is tantamount to dismissal. In particular, the striking of an enhancement implies that the enhancement is legally insupportable, and must be dismissed in furtherance of justice. ... [A] dismissal under section 1385, subdivision (a), cuts off an action or a part of an action against the defendant." (People v. Carrillo (2001) 87 Cal.App.4th 1416, 1421, internal citations and quotation marks omitted.)
A party cannot maintain an action that involves only abstract or academic questions of law. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669; see also, Consolidated Vultee Aircraft Corp. v. United Automobile, Aircraft & Agricultural Implement Workers (1946) 27 Cal.2d 859, 863.) Here the trial court dismissed the strike allegation, and thus defendant can no longer challenge this finding.
B. Attorneys Fees
Defendant next contends that the trial court erred in ordering him to pay $500 in attorneys fees. He claims the trial court failed to give notice or hold a hearing.
Penal Code section 987.8, subdivision (b) provides in relevant part: "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, . . . 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." Subdivision (g)(2) defines "ability to pay" as "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 defendants present financial position. [¶] (B) The defendants reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing . . . . [¶] (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 on the defendants financial capability to reimburse the county for the costs of the legal assistance provided to the defendant."
In People v. Phillips (Phillips) (1994) 25 Cal.App.4th 62, the defendant made a similar challenge to an order requiring him to pay attorney fees. This court stated: "[T]he probation officers report included attorney fees in its recommendations for issues which should be considered at the sentencing hearing. Under such circumstances, we see no reason why such a recommendation should not be viewed as placing a defendant on notice that he or she should be prepared to proceed with the ability-to-pay hearing at time of sentencing. [¶] The conduct of defense counsel at the sentencing hearing lends further support to our conclusion. Counsel did not offer any objection to the courts order for reimbursement on grounds of notice, lack of preparation, or lack of an opportunity to present evidence. The absence of any such objection indicates that defendant was not surprised by the courts consideration of his financial status and the subsequent order for reimbursement. [¶] For the above-stated reasons, we find no merit to defendants claim of inadequate notice." (Id. at pp. 74-75, internal citations omitted.)
In Phillips, this court also rejected the defendants claim that a separate hearing was required before ordering payment of attorneys fees, stating: "In sum, based on the language of the statute and sound policy considerations, we can perceive no valid basis for construing the statute as requiring the expenditure of additional public funds by requiring all of the interested parties to reconvene before the court at a later date. While this is clearly an option under the statute, section 987.8 by no means compels such a procedure." (Phillips, supra, 25 Cal.App.4th at p. 76.)
Here the probation report notified defendant of the possible imposition of attorneys fees. It stated at the conclusion of its recommendation: "Attorney fees if appropriate." This is the same language that was found adequate notice in Phillips. (Id. at p. 74.) Moreover, neither defendant nor his counsel raised any objection to the imposition of attorneys fees. Thus, defendants contention regarding lack of notice has no merit.
Defendant also challenges the sufficiency of evidence to support the trial courts implied finding that he had the ability to pay $500.
When we review the sufficiency of the evidence, "[w]e must view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence ... Any conflicts in the evidence must be resolved in favor of the finding below." (Phillips, supra, 25 Cal.App.4th at p. 72, internal citation and quotations omitted.)
In the instant case, defendant graduated from a two-year college program in electronic technology. When defendant was arrested, he was earning $10.40 an hour as a driver for Scott Horticultural. Defendant stated that he had also been employed as a compatibility technician for Micronics Computers, a mechanic for Pep Boy, and an innkeeper for Art Center Bed and Breakfast. While in county jail, defendant was working on his computer skills so he could obtain employment in that area. As in Phillips, defendant "did not offer any objections or corrections to the facts as stated in the probation officers report." (Phillips, supra, 25 Cal.App.4th at p. 71.) Defendant points out that he had been in jail for the previous 291 days prior to his release, and he planned to return to Arkansas to care for his mother. Neither of these facts affects the trial courts implied finding that defendant was skilled and highly employable. Accordingly, there was substantial evidence to support the implied finding that defendant was able to pay $500 in attorneys fees.
II. Disposition
The judgment is affirmed.
We concur: Bamattre-Manoukian, Acting P.J. and Wunderlich, J.