Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FVI901066, Miriam I. Morton, Judge.
O'ROURKE, J.
A jury convicted Richard Harris of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Thereafter, the trial court found true allegations that Harris had suffered three prior serious felony convictions (§ 667 subd. (a)(1)), three prior strike convictions (§§ 667, subds. (b)-(i); 1170.12) and served four prior prison terms (§ 667.5, subd. (b)). It sentenced Harris to state prison for 33 years to life, consisting of an indeterminate term of 25 years to life for his assault conviction, five years for the prior serious felony conviction, and three years for three of the four prior prison terms.
All statutory references are to the Penal Code unless otherwise stated.
On appeal, Harris contends: (1) the evidence is insufficient to support his assault with a deadly weapon conviction; (2) the jury did not unanimously agree on what criminal act he committed, denying him due process of law; (3) the court erred and violated his constitutional rights to a jury trial by instructing the jury with CALCRIM No. 3470 regarding his right of self defense; (4) the court erred by instructing the jury with CALCRIM No. 372 as to flight; (5) insufficient evidence supports the trial court's finding that he suffered one of his strike prior convictions; and (6) the court erred by ordering him to reimburse the county $150 for appointed counsel services. The People concede there is insufficient evidence to support the court's finding that Harris's gross vehicular manslaughter conviction constitutes a strike. They ask us to remand the case to afford the People an opportunity to retry the strike allegation.
We agree retrial of the allegation is proper and reverse the judgment as to the court's strike finding, and also to the extent it orders Harris to reimburse the county $150 in appointed counsel fees, with directions set forth below. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 16, 2009, Chelsea and Trevor Neiman, then boyfriend and girlfriend, held a housewarming party at their new home in Pinon Hills. Later that afternoon, Trevor and one of his friends took turns riding a dirt bike up and down the dirt road in front of the house. Chelsea, who was standing in the driveway, saw codefendant Mark Harris and her neighbor, Raymond Paquin, approach her house. Using expletives and with his arms waving, the codefendant yelled at them, asking what they were doing, telling them the road was not a racetrack, and to get out. Chelsea and another friend met them in the street. In the meantime, Trevor was putting the dirt bike away, but later came out and spoke with the codefendant, telling him if he had a problem with it he could leave. The matter turned into a heated argument. The codefendant then said, "You... are done" and that he was going to call his brother. The codefendant and Paquin returned to Paquin's house, then left in separate vehicles.
Chelsea and Trevor married following the incident but Trevor was deceased at the time of trial. We refer to Trevor and Chelsea Neiman by their first names to avoid confusion. We refer to Harris's brother Mark Harris as the codefendant.
About 35 to 45 minutes later, the codefendant and Harris arrived at the Neimans' house in separate cars. One of the cars drove up onto their driveway and Harris stormed out with his arms "pumped up." Trevor, who was sitting in the garage, stood up and told Harris to get off his property. Chelsea also told Harris to leave, and that she was calling the police. Harris ran up to Trevor, asking if he was "the one fucking with my brother" and telling him, "You're fucking done." He swung back and started hitting Trevor, who hit back. The codefendant also ran up the driveway and started fighting with Curtis Olson, another guest. Chelsea ran for a phone and found hers on a picnic table in the garage. She called 911.
In the meantime, five or six of the Neimans' guests had joined the fight. During a separation in the fighting, Chelsea saw Harris run back to his car and grab a knife. She watched as he started to attack Trevor and saw Harris's hands gesturing to stab him. The men tripped over an embankment of the driveway and fell down, and Chelsea saw "Richard Harris's hand keep stabbing and stabbing." Frantic, she told the 911 operator that Harris was "killing him." She saw the codefendant fighting with the other men, but her focus was on Trevor.
Bleeding profusely, Trevor jumped up and ran back to the garage, where Chelsea saw a blade stuck in his forehead. While Chelsea and another friend attended to his injuries, the other partygoers returned to the garage. Harris and the codefendant started approaching the garage, but then stopped, saying the house was going to be a "black house" and this was not over, and they [the Harrises] were going to kill them. The men then left in their respective vehicles. Jose Flores, one of the Neimans' friends present that day, estimated that about five minutes passed from the time the defendants started approaching the garage until they left. Police arrived about 35 to 45 minutes after Chelsea called 911.
Trevor sustained stab wounds to his forearm, back, thigh and scalp, as well as a collapsed lung from the back injury. The lacerations measured from three to eight centimeters in length and were sutured in the emergency room. Trevor was admitted into the hospital on the evening of the incident and discharged on May 19, 2009.
The codefendant testified at trial. He stated that during his initial confrontation in the street, he and Trevor exchanged punches. He claimed that when he returned, Trevor was armed with a knife and engaged the codefendant in a fight, during which the codefendant grabbed the knife and stabbed Trevor in the thigh. According to the codefendant, in the melee he was struck in the head with a baseball bat and lost consciousness, and when he awoke he was being kicked in the back. The codefendant claimed to have inflicted all of the stab wounds on Trevor.
Harris and his codefendant were charged with attempted deliberate and premeditated murder (§§ 187, subd. (a), 664) and assault with a deadly weapon, and the People alleged Harris had personally inflicted great bodily injury on Trevor in the commission of the assault (§ 12022.7, subd. (a)). The jury, however, was unable to reach a verdict on the attempted premeditated murder charges or on the special allegation that Harris had personally inflicted great bodily injury on the victim. It convicted both Harris and his codefendant of assault with a deadly weapon.
DISCUSSION
I. Sufficiency of Evidence of Assault with a Deadly Weapon
Harris contends there is insufficient evidence to support his conviction for assault with a deadly weapon. He maintains, based on the assault convictions reached for both defendants and the jury's inability to find he personally inflicted great bodily injury on Trevor, that the jury could not determine whether he or his codefendant stabbed Trevor. Discussing the possible ways the jury could have reached its verdicts against him and his codefendant, Harris argues the evidence can only support the offense of aiding and abetting a simple assault because the sole theory supported by the jury's verdicts is that he aided and abetted his codefendant, who stabbed Trevor with Trevor's own knife, but there is no evidence Harris was aware of the presence of any knife.
A. Standard of Review
Our review of any claim of insufficiency of the evidence is limited. " ' "When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence — i.e., evidence that is credible and of solid value — from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848–849.) We presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Before we may set aside a judgment for insufficiency of evidence, it must clearly appear that there is no hypothesis under which we could find sufficient evidence. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (Ibid.) This standard of review applies even when the conviction rests primarily on circumstantial evidence. (People v. Kraft, supra, 23 Cal.4th at p. 1053.)
B. Substantial Evidence Supports Harris's Assault with a Deadly Weapon Conviction
Harris would have us assess the sufficiency of the evidence by adopting only his theories as to how the jury could consistently have reached its verdicts on the counts and special allegations. For example, he argues the jury may have believed he was Trevor's stabber, but "[t]his was not... the decision reached by the jury, as the jury could not reach an agreement on whether appellant personally inflicted great bodily injury on Trevor." He proceeds: "Had the jury unanimously believed appellant stabbed Trevor, then it follows that the jury would also find the personal infliction of great bodily injury enhancement true as well, as there could be no doubt that appellant was guilty of the enhancement as well; he stabbed Trevor and inflicted great bodily injury." He focuses on jury questions concerning the defendants' knowledge of the presence of a knife for purposes of aiding and abetting and its indication of a deadlock on his assault count during their deliberations. According to Harris, these events show the jury must have found his codefendant was the perpetrator "because it could not have found that [the codefendant] was an aider and abettor without first finding that appellant [Harris] was the perpetrator."
As a threshold matter, we disagree with Harris's premise that the jury must have rejected the theory that he stabbed Trevor due to its inability to reach a verdict on the personal infliction of great bodily injury allegation. Section 12022.7 defines "great bodily injury" as "a significant or substantial physical injury." (§ 12022.7, subd. (f).) No specific type of wound or injury is required; the injury must "be 'a substantial injury beyond that inherent in the offense itself[.]' " (People v. Le (2006) 137 Cal.App.4th 54, 58-59.) Under this definition, the jury may have reasonably disagreed about whether Trevor's knife wounds amounted to great bodily injury within the meaning of section 12022.7.
Second, we decline to infer inconsistent jury findings based on the jurors' questions or temporary deadlock during deliberations. Harris does not provide authority allowing us to draw such an inference for purposes of determining the underlying theories of liability. Despite the jury's difficulties during deliberations, ultimately it reached a verdict against Harris for assault with a deadly weapon. A subsequent poll showed its verdict was unanimous.
Nevertheless, as this court explained in People v. Lopez (1982) 131 Cal.App.3d 565, an appellate court is permitted to examine the entire trial record for substantial evidence to support a conviction on a particular count, regardless of whether the jury made determinations with respect to other counts or special allegations that may be factually inconsistent with the conviction. In Lopez, the jury had found the defendant guilty of six counts of assault with a deadly weapon, but also found not true allegations that he personally used a firearm in commission of each of the offenses. (Id. at p. 569.) The evidence at trial disclosed that the defendant, along with several other men, had participated in multiple shootings at a holiday picnic. (Ibid.) On appeal, the defendant contended the appellate court could affirm his convictions only if there was substantial evidence he had acted as an aider and abettor, arguing the jury's special findings prevented the court from examining the record for substantial evidence he had been the direct perpetrator of the shootings. (Id. at p. 569.)
This court looked to the established principle "of refusing to invalidate an inconsistent jury verdict if it is otherwise supported by substantial evidence" (§ 954) and held we were "not limited to [the defendant's] proffered theory in our examination of the sufficiency of the evidence." (Lopez, supra, 131 Cal.App.3d at p. 571.) Thus, notwithstanding the inconsistency between the negative finding and the guilty verdicts, the only issue on appeal was whether the verdicts were supported by substantial evidence, and in making this determination, this court could consider evidence of the defendant's weapon use. (Id. at pp. 571-572.)
Here, there is ample substantial evidence supporting Harris's conviction for assault with a deadly weapon in the testimony of Chelsea and Jose Flores. As recounted above, Chelsea saw Harris go to his vehicle, grab a knife, and begin stabbing Trevor. Flores testified both Harris and the codefendant went back to their cars and grabbed knives; he told a responding deputy later that while Harris and Trevor fought on the ground, he saw Harris pull a knife and stab Trevor in the left forearm. This testimony by itself constitutes sufficient evidence to support the assault verdict.
II. Jury Unanimity
Harris contends the jury did not agree unanimously on what criminal act he committed, thus violating his due process rights. His contention is premised on the same theory as above: that the jury was unable to decide, based on its verdicts, jury notes, and statement during deliberations that it was deadlocked as to his assault count, who did the stabbing and who knew about the presence of a knife. Harris argues the jury's purported uncertainty would not matter "[u]nder certain circumstances, " such as if it were undisputed that both he and his brother had brought a knife to the fight. In that event, he maintains the jury need not agree on whether he was guilty as the direct perpetrator or as an aider and abettor, as long as it agreed on a specific crime. He asserts the evidence was conflicting as to who possessed knives and who actually stabbed Trevor, and that based on the evidence, particularly his codefendant's testimony, he could only be found guilty of aiding and abetting a simple assault.
The contention is without merit. As indicated, the jury reached a unanimous verdict against Harris for assault with a deadly weapon. Harris's contentions are unavailing under settled authority that as long as each juror is convinced beyond a reasonable doubt that a defendant has committed an offense, the jury need not decide unanimously which of several proffered theories of liability govern the case. (People v. Wilson (2008) 44 Cal.4th 758, 801; People v. Russo (2001) 25 Cal.4th 1124, 1132, 1133.) "Thus, the jury need not decide unanimously whether a defendant was a direct perpetrator or an aider and abettor, so long as it is unanimous that he was one or the other." (Wilson, at p. 801; Russo, at p. 1133; People v. Santamaria (1994) 8 Cal.4th 903, 918-919.) Nor is such unanimity required as a matter of federal due process. (Wilson, at pp. 801-802.)
For the reasons stated in part I, ante, we find no merit to Harris' claim that the evidence is sufficient to support only a simple assault, or that as to the assault with a deadly weapon conviction the jury could not find Harris guilty as an aider and abettor. In reaching its verdicts, the jury was not required to accept Harris's codefendant's claims that he took a knife away from Trevor, or that he was Trevor's stabber. Indeed, as Harris acknowledges, other witnesses testified both Harris and his codefendant possessed knives, and thus both could be determined to be both perpetrators and aiders and abettors. "[A] sharp line does not always exist between the direct perpetrator and the aider and abettor: 'It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.... [I]n a stabbing case, one person might restrain the victim while the other does the stabbing. In either case, both participants would be direct perpetrators as well as aiders and abettors of the other. The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role.' " (People v. Thompson (2010) 49 Cal.4th 79, 117-118.) The record shows Harris stabbed Trevor while his codefendant fought with others who would otherwise have been free to prevent Harris's attack. Under the foregoing principles and the state of the evidence, the jury could reasonably decide both defendants qualified as a direct perpetrator and also an aider and abettor. For the foregoing reasons, Harris's challenge to the jury's unanimity fails.
III. Claims of Instructional Error
A. Self-Defense Instruction: CALCRIM No. 3470
Harris contends the trial court erred by instructing the jury with CALCRIM No. 3470, violating his due process rights, and state and federal constitutional rights to a jury trial. Specifically, he argues the third element of the instruction — stating he had the right to defend himself against Trevor if "he used no more force than was reasonably necessary to defend against that danger" — misstated his right of self defense because it made his right to use force in self defense turn on the amount of force he actually used rather than his perception of the amount of force he needed to use. Harris maintains the instruction should have stated he had the right of self-defense if " ' he used no more force than he believed was reasonably necessary to defend against that danger.' " He contends the giving of CALCRIM No. 3470 was misleading, tantamount to withdrawing the issue of self defense from the jury, relieved the prosecution of proving beyond a reasonable doubt he did not act in self-defense, and thus prejudicial under both the harmless beyond a reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18) and the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836.
CALCRIM No. 3470 excuses assault with a deadly weapon when three elements are present: (1) the defendant reasonably believed he or she was in imminent danger of suffering bodily injury; (2) the defendant reasonably believed the immediate use of force was necessary to defend against that danger; and (3) the defendant used no more force than was reasonably necessary to defend against that danger. (CALCRIM No. 3470.)
The trial court has a sua sponte duty to instruct the jury on the general principles of law that are necessary for the jury's understanding of the case. (People v. Mayfield (1997) 14 Cal.4th 668, 773.) Once the court so instructs the jury, it has no further duty to give clarifying instructions, and defense counsel's failure to request clarification forfeits the issue on appeal. (Id. at p. 778; People v. Lee (2011) 51 Cal.4th 620, 638.) We assess de novo whether an instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) In reviewing a claim that the court's instructions were misleading, we inquire whether there is a reasonable likelihood the jury misunderstood and misapplied the instructions. (People v. Mayfield, 14 Cal.4th at p. 777.) We consider the instructions as a whole, and we assume the jurors use intelligence and common sense when applying and correlating the instructions. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; People v. Bragg (2008) 161 Cal.App.4th 1385, 1396.)
In giving CALCRIM No. 3470, the court instructed the jury in part: "Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself or someone else. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense or defense of another. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶]... [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense or defense of another. If the People have not met this burden, you must find the defendant not guilty of attempt[ed] murder, assault with a deadly weapon, or assault." (Italics added.)
As the above italicized portions show, the instruction set out the very standards Harris maintains were missing and, as a whole, correctly expressed the law. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082; CALJIC No. 5.30 [Self-Defense Against Assault].) Because CALJIC No. 3470 sufficiently apprised the jury of the relevant principles of law on the issue of self-defense in the present case, Harris's contention is without merit. Harris's contention was also forfeited. To preserve his appellate challenge to the isolated portion of the instruction that assertedly omitted that standard, Harris should have sought further clarification of that point in the trial court. Because the record shows he made no such request, Harris forfeited his claim of instructional error. (People v. Lee, supra, 51 Cal.4th at p. 638 [failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal].)
B. Flight Instruction: CALCRIM No. 372
Harris contends the trial court erred by instructing the jury over his objection with CALCRIM No. 372, the standard flight instruction. In part relying on out of state authorities that do not bind us, he maintains the instruction "improperly focused the jury's attention on... alleged evidence of 'flight' " and "permitted the jury to make an inference supporting a finding of guilt which did not meet the constitutional threshold of 'more likely than not.' " He argues the fact he left the scene after Trevor's garage door was closed and the fighting ended was not "especially probative" of guilt under the circumstances, and it was improper for the jury to draw such an inference. According to Harris, the instruction permitted an unjustified inference that violated his state and federal due process rights.
The trial court read CALCRIM No. 372 to the jury as follows: "If the defendants fled immediately after the crime was committed, that conduct may show that he [sic] was aware of his guilt. If you conclude that the defendants fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
Harris's contentions are without merit. " 'A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.' " (People v. Mendoza (2000) 24 Cal.4th 130, 180.) As Harris points out, a flight instruction is generally mandatory " 'where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' " (People v. Avila (2009) 46 Cal.4th 680, 710; People v. Richardson (2008) 43 Cal.4th 959, 1020; § 1127c.) " '[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' " (People v. Visciotti (1992) 2 Cal.4th 1, 60.) " 'The cautionary nature of [consciousness-of-guilt] instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.' " (People v. Boyette (2002) 29 Cal.4th 381, 438.)
Here, the challenged instruction was supported by substantial evidence. (People v. Boyette, supra, 29 Cal.4th at p. 439.) Chelsea testified that when defendants first approached her garage, she told them to leave and she was calling the police. During the fighting, Chelsea, who was only about six feet away from Trevor and Harris as they fought, called 911 and "was talking to the operator the whole time the incident was going on." In our view, the jury could reasonably infer that Harris and his codefendant knew Chelsea, or one of the many other people present that day, had called police, and thus departed the scene to avoid arrest. On this record, the trial court did not err in giving the flight instruction and it did not violate any of Harris's constitutional rights.
IV. Sufficiency of the Evidence of Harris's Prior Strike Conviction
Harris contends the People did not present sufficient evidence to support the trial court's true finding that he suffered a strike prior by reason of his December 1997 conviction for gross vehicular manslaughter under section 192, subdivision (c)(1). In particular, he asserts the documents did not reflect that the injured party was someone other than an accomplice, which is required for the offense to constitute a serious felony. (See §§ 1192.7, subd. (c)(8), 1192.8 [codifying People v. Gonzales (1994) 29 Cal.App.4th 1684 (called into doubt on other grounds in People v. Reed (1996) 13 Cal.4th 217, 229) and People v. Bow (1993) 13 Cal.App.4th 1551].) He asks us to reverse the true finding and remand the matter for resentencing.
The People concede there was no evidence presented as to whether or not the victim of Harris's December 1997 offense was an accomplice, and agree insufficient evidence supports the trial court's finding. However, they maintain this court should remand the matter to give the prosecution the opportunity to prove Harris, in the commission of the gross vehicular manslaughter, personally inflicted great bodily injury on a person who was not an accomplice. We hold it is permissible to allow the prosecutor to retry the strike allegation. (People v. Barragan (2004) 32 Cal.4th 236, 239 ["[R]etrial of a strike allegation is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence."]; People v. Valenzuela (2010) 191 Cal.App.4th 316, 323.)
V. Award of Attorney Fees under Section 987.8
Harris contends the trial court did not comply with statutory procedures when it ordered him to reimburse the county $150 for appointed counsel fees under section 987.8. Specifically, he asserts the court did not give him notice of the hearing or make an express finding of his ability to pay or what was a reasonable fee. The People do not address his contention as to notice; they respond only that the probation officer's report, which recommended that the court find Harris had the ability to pay, as well as the reporter's transcript of the sentencing hearing, "imply the required trial court finding of appellant's present ability to pay the $150 reimbursement...."
A. Notice of Section 987.8 Hearing
" '[P]roceedings to assess attorney's fees against a criminal defendant involve the taking of property, and therefore require due process of law, including notice and a hearing.' " (People v. Phillips (1994) 25 Cal.App.4th 62, 72, superseded by statute on other grounds as noted in People v. Valtakis (2003) 105 Cal.App.4th 1066, 1073-1074.) In Phillips, the Sixth District Court of Appeal held a reference in a probation officer's report recommending reimbursement of attorney fees under " 'if appropriate' " was sufficient to afford due process notice to the defendant that the matter would be taken up at the sentencing hearing. (Phillips, 25 Cal.App.4th at pp. 66, 74-75.) The court observed that its conclusion was supported by defense counsel's failure at sentencing to object on grounds of lack of notice or opportunity to present evidence, which indicated the defendant was not surprised by the court's consideration of his financial status and order for reimbursement. (Id. at p. 75.)
Section 987.8, subdivision (f) provides: "Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. The notice shall inform the defendant that the order shall have the same force and effect as a judgment in a civil action and shall be subject to enforcement against the property of the defendant in the same manner as any other money judgment." Though Harris sets out this subdivision in his brief, he does not squarely contend he was deprived of this threshold notice, or provide any legal authority regarding this provision.
We need not decide whether People v. Phillips, supra, 25 Cal.App.4th 62 states the proper approach regarding notice, though we observe that, as in Phillips, Harris's probation officer's report here recommended that the court make a finding that Harris had the ability to pay, and defense counsel did not object to any lack of notice. Because we remand the matter for reconsideration of Harris's ability to pay (part V(B), post), the trial court will have the opportunity to provide Harris with notice of the hearing on that matter.
B. Ability to Pay Finding
Section 987.8 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, 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." (§ 987.8, subd. (b).)
"Ability to pay" is defined in section 987.8, subdivision (g)(2) as "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." This subdivision also includes a number of factors to be considered in making a determination as to whether a defendant has the ability to pay. (§ 987.8, subd. (g)(2).) In particular, it states: "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." (§ 987.8, subd. (g)(2)(B).) A finding of a present ability to pay is a "condition to an order assessing attorney fees." (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.) "[A]ny finding of ability to pay must be supported by substantial evidence." (Ibid.) If there is no substantial evidence to support a defendant's present ability to pay, an order to pay fees is erroneous as a matter of law. (People v. Nilsen (1988) 199 Cal.App.3d 344, 351.)
On this point, Harris's probation officer report states: "It is respectfully recommended that the court finds that the defendant does have the present ability to pay appointed counsel fees in the amount of $150.00 through Central Collections." At the sentencing hearing, Harris's counsel asked the court to strike the appointed counsel fee, remarking that her client "is going to be spending a long time incarcerated" and "does not have any way to pay those [fees]." In making its ruling, the trial court did not make a finding of Harris's ability to pay counsel fees, simply stating: "Court will order $150 reimbursement for court-appointed counsel fees."
The court's sentencing minute order states: "The Court finds that the defendant does have the ability to pay appointed counsel fees in the amount of $150.00." However, the record of the court's oral pronouncement of judgment controls over the clerk's minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
Here, the record contains no discussion or evidence — and the People point to none — concerning Harris's present or future financial position: whether or not Harris held a job, whether he had assets, debts or other financial obligations, and generally whether he otherwise possessed funds to pay these fees. (See § 987.8, subd. (g)(2).) Thus, there is no evidence in the record from which the trial court could have made a determination, express or implied, of Harris's ability to pay attorney fees as provided by section 987.9. (People v. Pacheco, supra, 187 Cal.App.4th at p. 1399.) Because there is no required finding of Harris's ability to pay, the attorney fee order cannot stand.
DISPOSITION
The judgment is reversed as to (1) the $150 attorney fee order and (2) the trial court's finding that Harris's December 1997 offense was a serious felony. The People shall have 60 days after the remittitur is filed in which to give notice of their intent to seek retrial of the prior serious felony conviction allegation and/or seek an order for reimbursement of attorney fees under Penal Code section 987.8. If the People give such notice, the court shall hold a new trial on the prior serious felony allegation, and/or determine, in accordance with Penal Code section 987.8, Harris's ability to pay appointed counsel fees before making an order for reimbursement. If the People do not give such notice, the court shall resentence Harris in accordance with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.