Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA114798 Lori Ann Fournier, Judge.
Raymond M. DiGuiseppe, 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, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Javier Gutierrez, Jr. appeals from the judgment and the trial court’s order requiring him to pay to the County of Los Angeles (County) $268 in attorney fees pursuant to Penal Code section 987.8, subdivision (b) as reimbursement for legal assistance provided to him by a deputy public defender. The trial court issued the order without holding a noticed evidentiary hearing or making any inquiry concerning defendant’s ability to pay the attorney fees, as required by the statute. We therefore reverse the reimbursement order, but otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
Following a trial in which defendant was convicted of second degree burglary and a bifurcated proceeding in which the trial court sustained allegations that defendant had served four prior prison terms under section 667.5, subdivision (b), the trial court sentenced defendant to six years in state prison, imposed restitution fines of $200 pursuant to sections 1202.4, subdivision (b) and 1202.45, and ordered defendant to pay $268 to reimburse the County for the costs of legal assistance he received. This appeal followed.
DISCUSSION
Section 987.8 authorizes the trial court to order a defendant who has received legal assistance at public expense to reimburse some or all of the County’s cost. Under the statute, a reimbursement order may be made only if the court concludes, after a noticed evidentiary hearing, that the defendant has “the present ability... to pay all or a portion” of the defense costs. (§ 987.8, subd. (b); People v. Polk (2010) 190 Cal.App.4th 1183, 1205.)
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. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.”
Defendant objects to the reimbursement order on the ground that the trial court failed to hold a noticed evidentiary hearing before entering its order, as required by the statute, to determine defendant’s ability to pay the $268. Respondent contends defendant forfeited his right to challenge the reimbursement order on appeal because he raised no objection to the order in the trial court.
The forfeiture argument advanced by respondent in this case was considered and rejected by the Sixth Appellate District in People v. Viray (2005) 134 Cal.App.4th 1186. The court in Viray concluded:
“We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees. It seems obvious to us that when a defendant’s attorney stands before the court asking for an order taking money from the client and giving it to the attorney’s employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel’s omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client’s representative.... [¶]... [¶] Nor could defendant be expected to rise to assert her own interests, at least without explicit advisements that she was now in effect appearing in propia persona and could not rely upon counsel to protect her.” (Id. at pp. 1215-1216.)
The Viray court further concluded that a challenge based on the sufficiency of the evidence, such as the one defendant raises here, “requires no predicate objection in the trial court.” (Id. at p. 1217.) We find the court’s analysis in Viray to be persuasive and apply it here. Failure to object to the reimbursement order in the trial court below did not result in a forfeiture of defendant’s right to challenge that order on appeal.
The trial court failed to hold a noticed evidentiary hearing on defendant’s ability to pay all or a portion of the $268 of attorney fees specified in the reimbursement order, as required by section 987.8. The order therefore cannot be sustained, and the matter should be remanded for a hearing in accordance with the statutory requirement. (People v. Polk, supra, 190 Cal.App.4th at p. 1212; People v. Viray, supra, 134 Cal.App.4th at p. 1219.)
DISPOSITION
The trial court’s order requiring reimbursement of the County’s defense costs is vacated. The matter is remanded to the trial court solely for the purpose of holding a hearing to determine defendant’s ability to pay all or a portion of the $268 in reimburseable defense costs determined by the trial court and entering an appropriate order under section 987.8. The judgment is otherwise affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.