Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. FCR232478
McGuiness, P.J.
Jose Gomez-Garcia (appellant) appeals from a judgment entered after the trial court revoked his probation. He contends the court: (1) exceeded its authority in imposing a $1,200 restitution fund fine and a $1,200 parole revocation fine after it revoked his probation; and (2) violated his right to due process by ordering him to reimburse the public defender without notice or a hearing on the issue. Respondent concedes, and we agree, the fines were unauthorized, but we reject appellant’s due process claim. We therefore reverse the order imposing the $1,200 restitution fund and parole revocation fines and affirm the judgment in all other respects.
Factual and Procedural Background
An information was filed on March 27, 2007, charging appellant with two counts of lewd acts upon a minor (Pen. Code, § 288, subd. (c)(1)). According to the probation report, in the summer of 2005, 25-year-old appellant convinced his wife’s 14-year-old stepsister to have sexual intercourse with him. In April 2006, appellant again convinced the minor, then 15 years old, to have sexual intercourse with him.
All further statutory references are to the Penal Code.
On June 19, 2006, appellant was advised pursuant to section 987.8 regarding the eligibility requirements for a court appointed attorney. Appellant filed a financial statement and was found eligible, and a public defender was appointed to represent him. On July 17, 2006, a private attorney informed the court that appellant had retained her to represent him. On May 8, 2007, the court relieved the attorney as counsel and found appellant was ineligible for a court appointed attorney. On June 5, 2007, the court appointed a deputy public defender to represent appellant at a rate of $250 per month and reserved the right to recover payment for the public defender’s services.
On August 28, 2007, appellant entered a negotiated plea of no contest to a newly added count of unlawful sexual intercourse by an adult 21 years or over with a minor under 16 years (§ 261.5, subd. (d)) in exchange for dismissal of the two original counts, a promise of probation, and no registration requirement under section 290. On October 29, 2007, the court suspended imposition of sentence and placed appellant on probation for three years. As conditions of probation, the court ordered appellant to, among other things, serve one year in county jail, obey all laws, report to his probation officer, stay out of the presence of any minor without an adult present, participate in sex offender counseling, and submit to a program of psychological assessment at a therapist’s direction, including submitting to polygraph examinations. The court also ordered appellant to “provide any financial information requested by the probation officer, ” “[r]eport to Probation as directed for a financial evaluation and recommendation for the ability to pay costs, fines, and restitution, ” pay a $200 restitution fund fine (§ 1202.4), a stayed $200 probation revocation fine (§ 1202.44), a $20 collection fee and a $20 court security fee (§ 1465.8).
On April 9, 2009, the probation department alleged appellant violated probation by assaulting his girlfriend, failing to attend sex offender counseling, failing to complete a polygraph test, and being in the presence of a minor without an adult present. At a contested hearing, the probation officer testified that appellant’s sex offender counselor terminated treatment after appellant failed to submit to a scheduled polygraph. Appellant admitted to the probation officer that he failed to attend counseling or undergo a polygraph. The officer advised appellant of a second chance to attend counseling and submit to the polygraph but appellant failed to comply. Appellant also failed to appear at appointments with the probation officer. The court revoked probation and took the case under submission pending preparation of a supplemental probation report. At sentencing, the court terminated appellant’s probation and committed him to prison for the midterm of three years in state prison, with 355 days of presentencing credits. The court also ordered appellant to pay a $1,200 restitution fund fine (§ 1202.4) and a stayed $1,200 parole revocation fine (§ 1202.45). It also ordered appellant to reimburse the public defender’s office in the amount of $1,200 for legal services rendered, with payment to begin upon completion of his prison sentence.
Discussion
Restitution fund and parole revocation fines
Appellant contends the trial court exceeded its authority in imposing a $1,200 restitution fund fine and a $1,200 parole revocation fine when it revoked his probation. Respondent concedes, and we agree, the fines were unauthorized.
In People v. Chambers (1998) 65 Cal.App.4th 819, 821-822, the trial court imposed a $200 restitution fund fine when it granted the defendant probation, but later imposed a $500 restitution fund fine when it revoked the defendant’s probation. The Court of Appeal held that because “there [is] no provision for imposing a restitution fine upon revocation of probation, ” “the first restitution fine survived the revocation of probation, [and] the second restitution fine was unauthorized.” (Id. at pp. 821, 822, 823.) Similarly, here, because the $200 restitution fund fine that was originally imposed remained in effect after probation was revoked, the court was without authority to impose a restitution fund fine of $1,200 at the time of final sentencing. Further, because related parole revocation fines must conform to restitution fines that are imposed, (see People v. Smith (2001) 24 Cal.4th 849, 851-854), the $1,200 parole revocation fine that was imposed but suspended must be reduced to $200. Appellant’s failure to object below does not preclude us from correcting these unauthorized fines. (See People v. Chambers, supra, 65 Cal.App.4th at p. 823; People v. Scott (1994) 9 Cal.4th 331, 354.)
Court appointed attorney fees
Section 987.8, subdivision (b), provides in 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.” Appellant contends the trial court violated his right to due process by ordering him to reimburse the public defender without notice or a hearing on the issue.
Appellant forfeited the issue by failing to object below. (See People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1395 (Whisenand); see also People v. Phillips (1994) 25 Cal.App.4th 62, 70, 74-75 (Phillips).) In Whisenand, the trial court conducted a victim restitution hearing and ordered the defendant, who had been convicted of embezzlement, to pay the victim the full amount embezzled plus interest. (Id. at p. 1388.) It also ordered her to pay the costs of the probation report and probation supervision, and to reimburse the county for court appointed counsel. (Id. at p. 1394.) On appeal, the defendant challenged the order requiring her to pay probation costs and the costs of appointed counsel on the ground she did not receive notice of the proceedings. (Ibid.) The Court of Appeal rejected her argument: “We find the failure to object in the trial court on this ground to be a waiver of the right to make the argument on appeal. If a timely objection had been made, the trial court could have allowed further testimony on ability to pay under Penal Code section 987.8, could have allowed time to submit legal briefs on the issue, or could have scheduled further hearings to allow further preparation time.” (Id. at p. 1395.) The Court noted that the defendant’s ability to pay was at issue at the victim restitution hearing and that the defendant’s failure to object indicated she “ ‘was not surprised by the court’s consideration of [her] financial status and the subsequent order for reimbursement.’ ” (Ibid., quoting Phillips, supra, 25 Cal.App.4th at p. 75.)
Similarly, here, appellant’s ability to pay was at issue. As noted, appellant was advised pursuant to section 987.8 regarding the eligibility requirements for a court appointed attorney and filed a financial statement. After his private attorney was relieved as counsel, the court appointed counsel for him but reserved the right to recover payment for the public defender’s services. On October 29, 2007, when the court placed appellant on probation, it imposed as conditions of probation the payment of various costs and fines and ordered appellant to “provide any financial information requested by the probation officer” and “[r]eport to Probation as directed for a financial evaluation and recommendation for the ability to pay costs, fines, and restitution.” As in Whisenand, the record supports the conclusion that appellant’s failure to object indicated he “ ‘was not surprised by the court’s consideration of [his] financial status and the subsequent order for reimbursement.’ ” (Whisenand, supra, 37 Cal.App.4th at p. 1395, quoting Phillips, supra, 25 Cal.App.4th at p. 75.) Thus, he has forfeited the issue.
Appellant attempts to distinguish Whisenand and Phillips on the ground that “in both of these cases, some kind of hearing was held during which appellant’s financial situation was discussed.” Although a victim restitution hearing was held in Whisenand, there was no such hearing held in Phillips, where the court merely asked the defendant at sentencing “to state the nature of his employment” before issuing an order for reimbursement of the court appointed attorney’s fees. (Phillips, supra, 25 Cal.App.4th at p. 67.) Here, the court also issued its order at sentencing, and there was no need to ask appellant about his financial situation, as it already had the information from the probation report, which stated appellant “worked full-time at JL Custom Tile for the past five years [and] is paid $18.00/hourly. He related that even when work is slow, he will usually have work finishing off granite slabs.” The fact that the defendants’ financial situation was discussed at “some kind of hearing” in Whisenand and Phillips does not render these cases inapplicable here.
There is nothing in the record indicating his financial situation had changed by the time of sentencing.
Disposition
The abstract of judgment shall be amended to reflect a $200 restitution fund fine under section 1202.4 and a corresponding $200 parole revocation fine under section 1202.44. A copy of the amended abstract shall be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: Pollak, J., Siggins, J.