Opinion
B227902
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. EZEKIEL KEVIN GRAY, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED 1N THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA361505)
APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta and Craig Richman, Judges. Reversed in part and affirmed in part.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Ezekiel Kevin Gray appeals from the judgment entered upon his convictions by jury of four counts of attempted second degree robbery (Pen. Code, §§ 664, 211, counts 1-4) and one count of robbery (§ 211, count 5). The jury found to be true as to the four attempted robbery counts that appellant personally used a handgun within the meaning of section 12022.53, subdivision (b) and as to the robbery count that appellant personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1). The trial court sentenced appellant to an aggregate state prison term of 18 years four months and ordered, among other fines and fees, appellant to pay $5,000 in attorney's fees pursuant to section 987.8. He was awarded 374 days of custody credit and 54 days of conduct credit. Appellant contends that (1) the trial court erred in ordering him to pay $5,000 in attorney's fees, and (2) the abstract of judgment must be corrected to reflect the correct number of days of presentence credit.
All further statutory references are to the Penal Code unless otherwise indicated.
We reverse the attorney's fee order, modify the custody credits and otherwise affirm.
DISCUSSION
We omit a statement of the underlying facts as they are not germane to the issues raised on appeal.
--------
I. Attorney Fees
A. Background
The probation report indicated that appellant was unemployed, receiving general relief in the amount of $200 per month and food stamps in the amount of $160 per month and was being supported by his girlfriend for a year. He was on felony probation at the time of his sentencing. His girlfriend stated that he did not own a car.
At the sentencing hearing, the trial court ordered appellant to pay $5,000 in attorney's fees pursuant to section 987.8. It made that order without any comment and without making any determination or finding as to appellant's ability to pay.
B. Contention
Appellant contends that the order of attorney's fees must be reversed because there was no evidence of his ability to pay. The People agree with appellant as do we.
C. Forfeiture
We agree with the parties that appellant did not forfeit this contention by failing to assert it in the trial court. (People v. Viray (2005) 134 Cal.App.4th 1186, 1215.)
D. Requirement of reimbursement of attorney's fees for appointed counsel
Section 987.8, subdivision (b) provides: "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."
There is a presumption that a person sentenced to state prison does not have a discernible future ability to reimburse the costs of his or her defense. Section 987.8, subdivision (g)(2)(B) provides: "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."
Requiring a defendant to pay for the costs of legal representation provided by the government without first conducting a hearing into the defendant's ability to pay violates the statutory mandate. (See People v. Turner (1993) 15 Cal.App.4th 1690, 1695, disapproved on other grounds in People v. Flores (2003) 30 Cal.4th 1059, 1068.) Moreover, the record must show that the attorney's fees ordered reflects the actual costs incurred by the county in providing services to the defendant. (See People v. Viray, supra, 134 Cal.App.4th at p. 1217.)
At the sentencing hearing here, with no explanation, the trial court stated that, "I order a $5,000 attorney fee." It did not accord appellant a hearing as required by section 987.8, subdivision (b), did not attempt to ascertain whether defendant had the "present ability" to pay all or any part of the attorney's fees, did not make any finding that defendant's situation was "unusual" (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 ["express finding of unusual circumstances [required] before ordering a state prisoner to reimburse his or her attorney"]), and failed to indicate how the fees were calculated. The evidence established that appellant was on probation, unemployed, owned no vehicle, was receiving government assistance and was sentenced to more than 18 years in prison.
Because the statutory requirements for reimbursement of attorney's fees were unsatisfied here, the imposition of attorneys' fees must be reversed. Nothing in the record suggests any "unusual circumstances" which might rebut the presumption that a person sentenced to state prison lacks the ability to pay attorney's fees. Given these facts, the prospect of appellant being in a financial position to pay attorney's fees in the foreseeable future was remote, at best. Therefore, judicial economy dictates that we strike the attorney fee award without remanding.
II. Custody credits
A. Background
At the sentencing hearing, defense counsel stated that appellant was taken into custody on September 1, 2009, and was sentenced on September 10, 2010. The trial court calculated that to be 374 days of actual custody and 54 days "good time-work time, for a total of 428 days custody credit."
B. Contention
Appellant contends that the abstract of judgment must be amended to correct errors in the calculation of his presentence custody credits. He argues that he is entitled to an additional day of actual custody credit and two additional days of conduct credit. The People agree with appellant. We do also.
C. Calculation of presentence custody credits
Appellant was taken into custody on September 1, 2009, and sentenced on September 10, 2010. The day he was taken into custody and the day he was sentenced must be counted, even if partial days. (See People v. Browning (1991) 233 Cal.App.3d 1410, 1412.) Consequently, appellant's actual number of days in custody was 375, rather than the 374 initially calculated. Because he was convicted of robbery, a violent felony (§ 667.5, subd. (c)(9)), his conduct credits are limited to 15 percent. (§ 2933.1.) This calculates to 56 days of conduct credit. Thus, appellant is entitled to total presentence credit of 431 days, instead of the 428 days initially awarded.
DISPOSITION
The $5,000 award of attorney fees is reversed and the judgment is otherwise affirmed. On remand the trial court is directed to issue a corrected abstract of judgment reflecting 375 days of custody credit and 56 days of conduct credit, for a total of 431 days of presentence credit.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________, J.
ASHMANN-GERST
We concur: _, P. J.
BOREN
_, J.
CHAVEZ