Opinion
A130241
10-21-2011
THE PEOPLE, Plaintiff and Respondent, v. MARVIN T. HILL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. Nos. 494119, 583466)
This is an appeal from final judgment following the trial court's decision to revoke the probation of defendant Marvin T. Hill (defendant) and impose a six-year, eight-month prison sentence. Defendant was initially placed on probation and ordered to complete a comprehensive rehabilitation program following his entry of guilty pleas to several felony counts, including conspiracy to possess and transport cocaine base, possession for sale of cocaine base, possession of ammunition by a felon, and possession of a drug procured by forged prescription. Defendant thereafter left the rehabilitation program and was ultimately terminated from it for various acts of noncompliance, prompting the trial court's decision to revoke his probation. For reasons set forth below, we strike the trial court's order to pay $500 in attorney fees, but in all other regards affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 2010, in Sonoma County Superior Court case number 494119, defendant pleaded guilty to one count of conspiracy to possess and transport cocaine base (Penal Code, § 182, subd. (a)(1)); two counts of possession for sale of cocaine base (Health & Saf. Code, § 11351.5); two counts of transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)); and one count of possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)). Defendant also admitted four prior strike convictions.
On June 25, 2010, in Sonoma County Superior Court case number 583466, defendant pleaded guilty to one count of possession of a drug procured by forged prescription (Bus. & Prof. Code, § 4324, subd. (b)).
On July 27, 2010, the trial court sentenced defendant in both cases to a total of nine years and eight months in state prison, suspended imposition of the sentence, and placed him on formal probation for three years. In placing defendant on probation, the trial court imposed the following conditions, among others:
"That means I'm going to give you one chance, sir. [¶] For the next 36 months you'll be supervised. You'll participate in and complete any of the following programs of assistance or counseling, and I'm anticipating Jericho Project, that's the main program. You are to complete any educational, financial, medical, psychiatric, psychological, alcohol or drug program as may be directed by the probation officer. You are not to leave any program without the prior written consent of the program director or probation officer. Again, that's Jericho Project. You may not like it, you may not like the people there, you probably won't like the rules, but you have to stick it out and graduate. [¶] . . . [¶] [T]he most immediate goal is to attend and graduate from Jericho Project." (Emphasis added.)
Finally, the trial court added as a condition that "to show your sincerity about graduating and sticking it out, that you would waive all credits while you are in that treatment program, are you willing to do that?" Defendant responded: "Yes, Your Honor."
Just weeks later, after receiving notice that defendant had violated the terms of his probation, the trial court summarily revoked probation on August 18, 2010, and set the matter for a probation revocation hearing on September 7, 2010. At the contested hearing, the following evidence was received by the court.
I. The Prosecution's Case.
On August 2, 2010, defendant arrived at the Jericho Project, and was received for intake by staff member Nickalaus Salas. Shortly after attending an orientation session, defendant asked to discuss his options for entering into another rehabilitation and drug treatment program because he felt Jericho Project "wasn't the right fit for him."
On August 7, 2010, defendant left the Jericho Project on his own accord, advising Salas that he wanted to call his probation officer to discuss alternative programs. Salas told defendant to pack his bags and gave him $20 for a train ticket away from the program. According to his probation officer, Jeannine Yebra, however, defendant did not contact her upon leaving the program on August 7, 2010, even though had he wanted to call her to discuss his concerns he "absolutely" could have.
The next morning, on August 8, 2010, defendant returned to Jericho Project and requested another opportunity to participate in the program. He was accepted back after testing negative for controlled substances, but was placed on a disciplinary contract. This contract, among other things, prohibited defendant from communicating with any of the other program participants.
On August 12, 2010, defendant was terminated from the program for violating the terms of his disciplinary contract by "horse playing" with a fellow participant. According to Jericho Project staff members, defendant threw a sample of perfume on the other man. Defendant was asked to leave Jericho Project that same day, after the violation was reported by the other participant involved in the incident.
Adrian Martinez, Jericho Project's intake coordinator, testified at the hearing that, although he was present at the time of this horseplay incident, he did not personally observe it. Rather, Martinez was told of the incident by the man on whom defendant threw perfume, and then reported it to the program director. Salas, in turn, testified that he was "about half into that" and was not "totally clear what was going on" because he came in at "the tail end of it." However, he was later told by staff members what happened. In particular, Salas, like Martinez, was told by others that defendant violated the terms of his disciplinary contract by communicating with, and throwing perfume on, another program participant who was also on disciplinary contract.
Defendant called Yebra, his probation officer, shortly after his termination from the program, and later told her he was interested in looking into other drug rehabilitation programs.
II. The Defense Case.
Defendant provided testimony that in certain instances conflicted with the testimony of Martinez and Salas. In particular, defendant testified on direct examination that, after approaching Salas to discuss whether he could write to his probation officer about his concerns that the program was not a good fit, Salas had a very short discussion with other Jericho Project staff members, and then ordered him to immediately pack his bags. It was defendant's understanding that Salas was requiring him to leave the program. Defendant further testified that, just after leaving the program, he tried unsuccessfully to contact the program director by telephone. He therefore returned the next morning, on August 8, 2010, and was allowed to reenter the program.
However, upon his return, defendant was placed on "ghost status," which prohibited him from having contact with other program participants. Defendant denied being involved in the alleged "horse-playing" incident, insisting that he had simply been smoking a cigarette during a work break when a house manager mistakenly believed he had asked another participant for a cigarette in violation of his disciplinary contract.
On cross-examination, defendant admitted leaving Jericho Project on the night of August 7, 2010, and being absent from the facility for one night. Defendant also admitted failing to call his probation officer upon leaving the program, explaining that he did not call her because he had never met her, it was a weekend, and he did not know he could leave her a message.
Following defendant's testimony, Martinez was recalled, at which time he confirmed that, had defendant requested to contact his probation officer regarding his concerns about the program, he would have been permitted to do so.
III. The Trial Court's Findings and Order.
Following the probation revocation hearing, the trial court found that defendant violated the terms of his probation by voluntarily leaving Jericho Project without contacting or getting permission from the probation department, and then, upon his return, by engaging in misconduct that caused his termination from the program. The trial court thereafter recalled defendant's previous sentence, and issued a new sentence of six years and eight months. The trial court also ordered defendant to pay, among other things, $500 in attorney fees contingent upon a finding by the Department of Corrections and Rehabilitation that he had the ability to pay. This timely appeal followed.
DISCUSSION
Defendant challenges the final judgment on two grounds. First, defendant contends the prosecution failed to establish by a preponderance of the evidence that he violated the terms of his probation. Second, defendant contends the trial court erred by ordering him to pay $500 in attorney fees contingent upon a determination by the Department of Corrections and Rehabilitation that he had the ability to pay. We consider each of these contentions below.
I. Does substantial evidence prove defendant violated the terms of his probation?
In challenging the sufficiency of the evidence supporting the trial court's finding of probation violations, defendant claims he did not "leave" Jericho Project "because the program immediately accepted him back." Defendant also claims his expulsion from the program was based on his alleged "horse playing" with another program participant, a fact not established by substantial evidence. The following rules govern our review of these contentions.
A court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . the person has violated any of the conditions of his or her probation." (Pen. Code, § 1203.2, subd. (a).) The standard of proof required for probation revocation is a preponderance of the evidence. (People v. Rodriquez (1990) 51 Cal.3d. 437, 447.) "The constitutionality of proof by a preponderance of the evidence of the facts supporting probation revocation derives from the fact that '[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special . . . restrictions.' " [Citations]" (Id at p. 442.)
"[W]here the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test. . . . [R]eview is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, citing Bowers v. Bernards (1984) 150 Cal.App.3d 870; Denham v. Superior Court (1970) 2 Cal.3d. 557, 564, fns. omitted.)
Here, the trial court suspended a lengthy sentence and placed defendant on formal probation with the express understanding that defendant would have "one chance, sir" to rehabilitate himself. In doing so, the trial court imposed a number of probationary terms and conditions, including that defendant "complete any educational, financial, medical, psychiatric, psychological, alcohol or drug program as may be directed by the probation officer" and "not . . . leave any program without the prior written consent of the program director or probation officer." In doing so, the trial court identified "the most immediate goal" as having defendant "attend and graduate from Jericho Project." As the record reflects, however, defendant failed to comply with the court's conditions and to meet its stated goal.
In particular, as set forth above, two Jericho Project staff members, Salas and Martinez, testified that, on August 7, 2010, defendant left the program on his own accord after expressing concern that the program was not well-suited to his needs. In doing so, contrary to one of the express conditions of his probation, defendant failed to obtain prior written consent from the program director or his probation officer. To the contrary, his probation officer testified that defendant did not contact her upon leaving the program on August 7, 2010, despite the fact that he "absolutely" could have, even during the weekend.
And, contrary to another express condition, defendant failed to complete the treatment and rehabilitation program to which he was assigned. Rather, the record reflects that, on August 12, 2010, defendant was terminated from Jericho Project for violating his disciplinary contract by "horse playing" with a fellow participant by throwing perfume on him. As defendant admitted, after he was reaccepted into the program upon his return on August 8, 2010, he was subject to a "ghost contract," prohibiting him from having any sort of contact with other program participants. Because the horse play incident was a violation of this disciplinary contract, defendant was immediately terminated from the program, which, in turn, was a violation of his probationary conditions.
This record of defendant's noncompliance with the undisputed conditions of his probation, we conclude, provides support for the trial court's probation revocation order by a preponderance of the evidence. (Pen. Code, § 1203.2, subd. (a); People v. Rodriquez, supra, 51 Cal.3d. at p. 447.)
In reaching this conclusion, we acknowledge that defendant's testimony conflicted in certain regards with the evidence supporting the trial court's order. For example, defendant testified that Salas ordered him to leave Jericho Project and then gave him $20 for transportation. Salas, in turn, acknowledged giving defendant money for a train ticket, but denied ordering defendant to leave, insisting defendant's decision was voluntary. It is obvious from the record the trial court accepted the testimony of Salas rather than defendant on this issue, a ruling to which we defer on appeal. (E.g., People v. Kurey, supra, 88 Cal.App.4th at p. 848.)
Further, as defendant points out, neither Salas nor Martinez personally observed the horse play incident. Salas, although present at the time, only caught "the tail end of it" and was later told what transpired by other staff members. Martinez, in turn, was told of the incident by the other involved party. Contrary to defendant's suggestion, however, the fact that these witnesses relied on reports from others regarding defendant's noncompliance with the disciplinary contract does not wholly undermine the evidentiary value of their testimony. (See People v. Maki (1985) 39 Cal.3d 707, 714-717 [reliable hearsay evidence may be relied upon to prove a probation violation].) And because the trial court's finding that defendant violated the terms of his probation was neither arbitrary, capricious nor irrational, it must stand on appeal. (People v. Stewart (2000) 77 Cal.App.4th 785, 790 ["the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact"]; People v. Zaring (1992) 8 Cal.App.4th 362, 378.) We therefore proceed to defendant's remaining challenge.
II. Did the trial court err by awarding attorney fees to defense counsel?
Defendant contends the trial court erred by ordering him to pay $500 in attorney fees contingent upon a determination by the Department of Corrections and Rehabilitation (Department of Corrections) that he had the ability to pay.
The parties agree Penal Code section 987.8 governs this issue. "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.) Subdivision (b) of this statute provides in relevant 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 . . . , 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." (Pen. Code, § 987.8, subd. (b).) Also of significance, subdivision (g) provides in relevant part: "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." (Pen. Code, § 987.8, subd. (g)(2)(B).)
When applying Penal Code section 987.8, "[t]he court's finding of the defendant's present ability to pay need not be express, but may be implied through the content and conduct of the hearings. ( People v. Phillips (1994) 25 Cal.App.4th 62, 71 .) But any finding of ability to pay must be supported by substantial evidence. ( People v. Nilsen (1988) 199 Cal.App.3d 344, 347 ; People v. Kozden (1974) 36 Cal.App.3d 918, 920 .)" ( People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.)
Here, defendant contends the trial court violated Penal Code section 987.8 by ordering him to pay $500 in attorney fees contingent upon a determination by the Department of Corrections regarding his ability to pay. According to defendant, the ability-to-pay inquiry is "designated in the statute as a matter for the country revenue office to determine." As a result of this statutory violation, defendant reasons, the trial court's attorney fee order amounts to an unauthorized sentence that must be vacated.
In addressing defendant's argument, we note that nothing in Penal Code section 987.8 required the trial court to designate a county officer to determine whether defendant had the ability to pay for legal representation. Rather, the statute simply affords the trial court discretion to do so. (Pen. Code, § 987.8, subd. (b).) By the same token, nothing in the statute expressly prohibited the trial court from seeking information from the Department of Corrections regarding defendant's ability to pay. However, for reasons we will explain, we conclude there is no need in this case to decide whether the trial court's attorney fee order violated the language or spirit of subdivision (b) of section 987.8, because the order in fact violated subdivision (g)(2)(B) of the statute.
Specifically, as set forth above, pursuant to Penal Code section 987.8, subdivision (g)(2)(B), there is a statutory presumption that a defendant sentenced to state prison will not be ordered to pay attorney fees unless there are "unusual circumstances" indicating the defendant has "a reasonably discernible future financial ability to reimburse the costs of his or her defense." (Pen. Code, § 987.8, subd. (g)(2)(B).) In this case, however, the trial court's order makes no reference to, or accommodation for, this statutory presumption. Rather, the court's order impliedly adopts the opposite presumption - to wit, that defendant will in fact have to pay $500 in attorney fees so long as the Department of Corrections determines he has the ability to do so. Thus, we conclude, the trial court's order is improper to the extent it fails to apply subdivision (g)(2)(B)'s mandatory presumption.
Moreover, even giving the trial court the benefit of the doubt that the attorney fee order would not be imposed against defendant absent a finding of "unusual circumstances," there is absolutely no evidence in the record before us undermining the statutory presumption that, as a convicted felon sentenced to prison for the next six years and eight months, defendant will lack the financial ability in the "reasonably discernible future" to reimburse his legal costs. (Pen. Code, § 987.8, subd. (g)(2)(B).) In particular, neither the felony presentence report, the probation report nor any other evidence in the record indicates defendant has significant assets or would earn enough money while in prison to pay the $500 order.
According to the presentence report filed in March 2010, defendant had been employed since 2007 on an "as needed" basis by American Carpet Care. Prior to 2007, defendant lost two jobs, one due to company theft and the other due to insubordination. Since 2004 or 2005, defendant had relied upon the drug trade for income, selling "just enough" cocaine to support himself and to help out his family, but "never more than that." His net income was listed as $1,200, his monthly expenditures totaled approximately $800, and he had a $6,000 vehicle debt that remained unpaid. Neither the presentence report nor the probation report recommended that defendant pay attorney fees.
Although we could remand this matter for hearing to permit the trial court to properly assess whether there are unusual circumstances indicating defendant has the ability to pay $500 towards his defense costs despite his ongoing incarceration, we believe, given the record before us, the more appropriate remedy is to simply strike the attorney fee order. Put simply, the expenditure of public resources required to determine defendant's ability to pay under these circumstances would more than likely exceed the amount the County could expect to be reimbursed by defendant to cover his defense costs. (Cf. People v. Flores (2003) 30 Cal.4th 1059, 1063, 1068-1069 ["Recoupment statutes such as section 987.8(b) reflect a legislative concern for ' " 'replenishing a county treasury from the pockets of those who have directly benefited from county expenditures" ' "].)
DISPOSITION
The trial court's order that defendant pay $500 in attorney fees contingent upon a determination by the Department of Corrections that he has the ability to pay is stricken. The judgment is in all other regards affirmed.
Jenkins, J. We concur: McGuiness, P. J. Pollak, J.