Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC782711
McAdams, J.
Pursuant to a negotiated disposition in which a second felony count was dismissed, defendant pleaded no contest to attempted removal of a police officer’s non-firearm weapon, as a felony. (Pen. Code, §§ 664/148, subd. (b).) At the subsequent sentencing hearing, the court suspended imposition of sentence and placed defendant on formal probation for 30 months on the condition, among others, that he serve six months in the county jail with 139 days credit for time served. The court also ordered defendant to pay “attorney’s fees under [section] 987.8 for the services of counsel.” The court did not orally set an amount; however, the clerk’s transcript reflects an order for payment of $300 in attorney fees. Defendant contends the order for attorney fees must be stricken because the court made no determination of defendant’s ability to pay, as required by section 987.8, and because the record is devoid of any evidence to support an implied finding of ability to pay. The Attorney General, by letter brief, agrees that the record does not support a finding of ability to pay and also concurs, based on defendant’s “circumstances, including a six-month jail sentence” that the interests of justice and judicial economy and efficiency would not be well-served by a remand for determination of defendant’s present ability to pay the fees. He therefore agrees that the court may amend the judgment by striking the order. For the reasons discussed below, we accept the Attorney General’s concession and will order the fees stricken.
The felony complaint originally charged a violation of Penal Code section 69, as well.
All further statutory references are to the Penal Code.
The facts are drawn from the probation report filed January 4, 2008.
The historical facts are not pertinent to the issue on appeal and may be briefly summarized as follows. Police officers awakened defendant at 2:00 a.m. as he was sleeping in a car, which was parked on the street. He became argumentative, a confrontation ensued, and defendant apparently attempted to grab an officer’s baton.
With respect to defendant’s financial means, the probation report states that “defendant is forty-one years old, single, unemployed and homeless.” Educationally, he earned a GED and took various courses at junior colleges. As for his future prospects, defendant reportedly told the probation officer that “[w]hen released, [he] will pursue a career in the area of physics, attempting to retro fit automobiles to operate using only water. He claims that family members and friends will support this venture monetarily when he proves it is viable.”
DISCUSSION
“Section 987.8 establishes the statutory procedure for determining a criminal defendant’s ability to reimburse the county for the services of court-appointed counsel. Under this section, a court may order a defendant who has the ability to pay to reimburse the county for all or a portion of the costs of his legal representation.” (People v. Smith (2000) 81 Cal.App.4th 630, 637.) The statute reflects “a legislative concern for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.” (People v. Flores (2003) 30 Cal.4th 1059, 1063, internal quotation marks omitted.)
As relevant here, the statute generally provides: “[T]he 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” of legal assistance provided through “the public defender or private counsel appointed by the court.” (§ 987.8, subd. (b), italics added.) Upon determining after a hearing that the defendant does have “the present ability to pay all or a part of the cost” of legal assistance, “the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county. . . .” (§ 987.8, subd. (e).)
Section 987.8, subdivision (g)(2) sets forth the definition of “ability to pay” and lists factors the court must consider in making that determination: “ ‘Ability to pay’ means 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 defendant’s present financial position. [¶] (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. . . . [¶] (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 upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (Italics added.)
Thus, a determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fee order. (§ 987.8, subd. (e).) While such a determination may be implied, the order cannot be upheld on review unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) When the issue on appeal is sufficiency of the evidence, “we must draw all reasonable inferences in favor of the judgment.” (People v. Mercer (1999) 70 Cal.App.4th 463, 467.)
Drawing all inferences in favor of the judgment, we nevertheless must agree with the parties that the record here is devoid of substantial evidence of defendant’s ability to pay attorney fees. At the time of sentencing, defendant was 41 years old, unemployed and homeless. He had been in custody for 93 days already and was facing another 51 days in custody before he could be released. Defendant’s past unemployment, limited educational attainments, custodial status and plans for employment upon release did not suggest a realistic “likelihood that the defendant shall be able to obtain employment within a six-month period from the date of hearing.” (§ 987.8, subd. (g)(2)(C).) We conclude that, here, as in People v. Kozden (1974) 36 Cal.App.3d 918, 920, “there is no substantial evidence to support the trial court’s determination that [defendant] possessed the present ability to pay the sum assessed.”
We also agree with the parties a remand to the trial court is not appropriate here. This is not a case such as People v. Flores, supra, 30 Cal.4th at page 1068, in which development of a factual predicate for the attorney fee order at a remand hearing “was conceivable because, according to the probation report, defendant possessed $1,500 worth of jewelry at the time of sentencing.” In light of defendant’s circumstances, and the relatively modest fee order, a further judicial proceeding would only generate more costs. In the interests of judicial economy and efficiency, we will therefore strike the order assessing attorney fees.
CONCLUSION
The court’s order that defendant reimburse the county for attorney fees in the amount of $300 is not supported by substantial evidence.
DISPOSITION
The judgment is modified to strike the award of attorney fees. The trial court is directed to amend the abstract of judgment accordingly. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.