Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC515136
RUSHING, P.J.
Defendant Jesus Guerrero asserts the trial court erred in ordering him to pay attorney fees, because it made no findings on his ability to pay. Defendant Marco Antonio Marquez files an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436.
The Attorney General filed no response to this appeal.
We omit the underlying facts because they are not relevant to the issues on appeal.
In October 2007, Guerrero and Marquez were both charged by information with shooting into an inhabited dwelling (Penal Code, § 246 - count 1); two counts of assault with a firearm (§ 245, subd. (a)(2) - counts 2 & 3); and two counts of discharging a firearm from a vehicle at a person not an occupant (§ 12034, subd. (c) - counts 4 & 5). As to counts 2 and 3, the information alleged an enhancement that Guerrero and Marquez were armed with a handgun. (§ 12022, subd. (a)(1).) As to all counts, the information alleged an enhancement that Guerrero and Marquez committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b)(1)(B)).
All further statutory references are to the Penal Code.
Guerrero and Marquez pleaded guilty to counts 2 and 3, admitted the arming enhancement under section 12022, subdivision (a)(1), and admitted the gang enhancement under section 186.22, subdivision (b)(1)(B), with an understanding that Guerrero would receive 10 years in state prison, and Marquez would receive 13 years in state prison.
On March 7, 2008, the court denied probation, and imposed a total of 10 years in state prison on Guerrero. The court also ordered that both defendants pay $200 in attorney fees, but as to Marquez, the judgment was subsequently modified to delete that order.
Guerrero filed a timely notice of appeal and certificate of probable cause on March 20, 2008.
Marquez filed a timely notice of appeal and certificate of probable cause on March 7, 2008, and we appointed counsel to represent him on appeal. Thereafter Marquez’ counsel filed an opening brief under People v. Wende (1979) 25 Cal.3d 436, raising no issues and asking this court to independently review the record on appeal.
DISCUSSION
Defendant Guerrero
Guerrero asserts the order that he pay $200 in attorney fees should be stricken, because the trial court did not make findings as to whether he had the ability to pay such fees and lacked substantial evidence to impose the reimbursement requirement.
Section 987.8 outlines criteria the court may use in evaluating a defendant’s ability to pay for the services of court-appointed counsel, and includes the defendant’s current, as well as future financial position. Here, the evidence of Guerrero’s ability to pay attorney fees within the six-month period required by section 987.8, subdivision (e) was nonexistent. The probation report provided only that Guerrero had an 11th grade education, and last worked in 2005. In addition to the minimal evidence of Guerrero’s ability to pay the attorney fees in the probation report, there was no evidence presented at the sentencing hearing regarding defendant’s financial status. Guerrero was not questioned regarding his employment, income, assets, or expenses at the sentencing hearing, and there was no evidence presented that he had any assets or received financial support from anyone else.
Since it is the government that seeks reimbursement of the attorney fees, the burden is on the government to present evidence of the defendant’s ability to pay and address the criteria set forth in section 987.8, subdivision (g)(2). The government did not meet that burden in this case.
Due to Guerrero’s incarceration and financial circumstances, coupled with the modest amount of fees involved, remanding this matter for further judicial proceedings is likely to result only in additional expense. In the interests of judicial efficiency and economy, we strike the order directing Guerrero to pay attorney fees.
Defendant Marquez
Following Marquez’ counsel filing an opening brief pursuant to People v. Wende, supra, 25 Cal.3d 436, raising no issues and asking this court to independently review the record on appeal, we notified Marquez of his right to submit written argument on his behalf within 30 days. The 30 days have elapsed, and we have received no written argument from Marquez. Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
DISPOSITION
The judgment is modified, and the order that Guerrero pay $200 in attorney fees is stricken. As modified, the judgment is affirmed.
WE CONCUR PREMO, J., ELIA, J.