Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210431
McAdams, J.
Defendant Joseph Johnson, Jr. appeals from an order of the trial court recommitting him to the Department of Mental Health for a period of two years – from 2002 to 2004 – under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He argues: (1) the trial court should have dismissed the recommitment petition before trial because it was moot; (2) trial on the moot petition violated his right to substantive due process; (3) the trial court abused its discretion by permitting the prosecution’s expert witnesses to testify about offenses for which defendant was arrested and charged but not convicted; (4) the trial court abused its discretion by permitting the prosecution’s experts to testify about a murder solicitation charge of which defendant was not convicted; (5) these evidentiary rulings violated his due process right to a fair trial; and (6) the trial court’s order requiring him to pay attorney fees is not supported by substantial evidence and did not comply with statutory procedures.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We find merit in defendant’s attorney fee claim. We will therefore strike the order requiring payment of attorney fees and remand the matter for a hearing on defendant’s ability to pay the actual costs of the legal services provided. However, because the commitment period at issue (2002 to 2004) has expired, we will dismiss this appeal as moot after deciding the attorney fee question for the guidance of future SVPA proceedings.
The following procedural summary is drawn in part from our opinion in Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 (Litmon).
“Petitioner Johnson was first committed as a sexually violent predator (SVP) on May 25, 2000. On April 25, 2002, the People filed a new petition to extend Johnson’s commitment for another two years, until May 24, 2004. The probable cause hearing commenced on May 21, 2002. After numerous continuances, the hearing concluded on June 27, 2003, with a finding of probable cause. On that day, Johnson demanded a jury trial and, in its order finding probable cause, the court set a trial date of April 5, 2004.
On August 22, 2001, we affirmed the trial court’s order committing Johnson as an SVP in an unpublished opinion, People v. Johnson, H021605.
On our own motion, we took judicial notice of the superior court files in the Litmon and Johnson matters. (Evid. Code § 452, subd. (d).)
“On February 17, 2004, while the first recommitment petition was still pending, the People filed a second recommitment petition to extend Johnson’s commitment for another two years, until May of 2006, alleging that Johnson’s ‘current commitment’ was due to expire on May 24, 2004, even though no commitment trial had yet been held. On March 5, 2004, the People submitted the matter to the trial court for a finding of probable cause on the basis of one evaluation by Dr. Korpi and two by Dr. Jeko; the doctors’ reports were admitted into evidence. At that point, Johnson ‘agreed to [a] continuance’ of the probable cause hearing, apparently to cross-examine the experts. The court continued the case to April 2, 2004, for the People’s motion to consolidate trial on the two petitions.
“The People filed a written motion to consolidate the first and second petitions on March 8, 2004. On March 18, 2004, the court held a hearing and ruled upon previously filed motions in limine relating to trial on the first petition. It also continued proceedings on the first petition for a further readiness hearing on April l and for trial on April 5.
“On March 24, 2004, the People filed a supplemental motion to consolidate. On March 29, Johnson’s counsel filed a written opposition to the motion to consolidate. On April 2, 2004, over Johnson’s objection, the court granted the People’s motion to consolidate; vacated the previously set April 5 trial date; set the continuation of the probable cause hearing on the second recommitment petition for April 30 and May 21; and ordered a new trial date of May 24, 2004, the last day of the underlying commitment period. Thereafter, the court granted Johnson’s request that the consolidated trial be held on September 1, 2004, instead of May 24.” (Litmon, supra, 123 Cal.App.4th at p. 1162.)
On April 23, 2004, defendant filed a petition for writ of mandate in this court to reverse the trial court’s order consolidating the two petitions for trial. On May 19, 2004, this court stayed all further proceedings in the trial court. (Litmon, supra, 123 Cal.App.4th at p. 1164.) On November 4, 2004, we vacated the temporary stay order and ordered issuance of a peremptory writ of mandate directing the superior court to vacate its consolidation and to set the 2002 petition “for trial forthwith.” (Id. at p. 1178.) The remittitur issued January 28, 2005.
On our own motion we take judicial notice of the records of this court and of the California Supreme Court relating to Johnson v. Superior Court, H027353. (Evid. Code § 452, subd. (d).)
On March 11, 2005, defendant filed a motion to dismiss the 2002 petition as moot. The motion was denied on April 6, 2005. Defendant agreed to a trial date in August 2005. Jury trial commenced August 15, 2005 and concluded on September 2, 2005, with a finding that the allegations of the 2002 petition were true. On September 2, 2005, the court ordered defendant committed for a two-year period beginning in May 2002 and ending in May 2004. Defendant filed a notice of appeal the same day.
STATEMENT OF FACTS
The Prosecution’s Case
The prosecution called two psychologists to testify as expert witnesses, Dr. Douglas Korpi, Ph.D. and Dr. Lisa Jeko, Ph. D. The court recognized Dr. Korpi as an expert in “forensic psychology with regard to diagnosis of mental disorders and risk assessment.” Defendant declined to be interviewed by Dr. Korpi in December 2003, November 2004 and June 2005.
Dr. Korpi’s Testimony
Dr. Korpi conducted a sexually violent predator assessment of defendant after reviewing defendant’s “rap sheets,” Interpol data relating to an offense in Denmark, police reports, probation reports and “committing documents.” He also reviewed hospital records from Atascadero, including psychiatric reports, social reports, daily notes written by “psych techs,” medical documents, and defendant’s central prison file.
Diagnoses
Dr. Korpi determined that defendant suffers from paraphilia not otherwise specified. To qualify for a diagnosis of paraphilia under the Diagnostic and Statistical Manual, the behavior must be at least six months in duration, meaning that “we want to have at least six months between the events.” In addition, the behavior must seriously affect one’s life in a negative way. Defendant fit both criteria because he had multiple events over nine years and he was repeatedly incarcerated. In addition, he had previous convictions for prowling or burglary, and he admitted to one evaluator in 1999 that the intent of his behavior was not to burglarize but to rape. Dr. Korpi also opined that as a result of his mental disorder, defendant had “volitional incapacity”: “He suffers a disorder compulsion like an alcoholic.”
Dr. Korpi also diagnosed defendant with antisocial personality disorder based primarily on defendant’s extensive history of arrests and convictions starting in junior high school. He also considered defendant’s arrest for “soliciting … somebody to kill one of the 1980 victims so she wouldn’t testify against him.”
Sex Offenses
In reaching his diagnosis of paraphilia, Dr. Korpi considered defendant’s pattern of sexual offending with various victims, and he discussed defendant’s sexual conduct with these victims in his testimony.
The first offense Dr. Korpi discussed occurred in Mountain View on November 15, 1980. In that case, defendant was convicted of rape. Kathy D. was asleep in her bed at approximately 4:00 a.m. and awoke to find that a man (defendant) was on top of her. He pulled some clothes over her head, rolled her on to the floor, turned her on her stomach and raped her. During the assault, defendant hit the victim repeatedly and tried to push his fingers into her eyes. She suffered multiple bruises and lacerations to her face.
The next offense Dr. Korpi discussed occurred in Mountain View approximately one week later, on November 22, 1980. In that case, defendant was also convicted of rape. Jean lived in a downstairs apartment. At 2:15 a.m., she woke up and saw a man standing in her open front doorway. She ran to the door and shut it to keep him from entering her apartment. Eileen H. lived upstairs. She awoke in the early morning hours to find a man (defendant) with his hand over her face. When she attempted to resist him, defendant struck her and stuck his fingers in her mouth, causing a deep gash, and then raped her.
Dr. Korpi also considered three offenses that occurred in Palo Alto in October 1971. Only one of these offenses resulted in conviction.
On October 2, 1971, defendant entered the apartment of Carleen L. at 4:00 a.m. She was asleep on the day bed in her living room when defendant climbed into her bed, put one hand over her mouth and throat and used his other hand to restrain her. She struggled against him and tried to scream. He told her several times if she shut up she wouldn’t get hurt. He tried to pull her panties down, but when the victim managed to scream, defendant fled. Defendant was driving a yellow Karmann Ghia. Defendant was found guilty of the attempted rape of Carleen L.
On October 26, 1971, Paula R. lived in a rear cottage that was attached to a garage and was difficult to access. She was awakened at 1:00 a.m. by a man in a ski mask standing at the end of her bed. He told her to be quiet and she wouldn’t get hurt. He then got into bed with her and climbed on top of her. She started to scream. He put his hand over her mouth and on her throat and tried to pull off her pajamas. She tried to pull off the ski mask and continued to scream and struggle. He told her to watch out or she would get hurt, and that he was not leaving until he was through. When she continued to scream, he ran away. She could hear the sound of a Volkswagen speeding away.
She told the police later that to get to her cottage, one has to go through two gates, but that she had brought defendant to her cottage previously. He had driven a yellow Karmann Ghia and wore the same cologne as the intruder. Defendant was charged with assault with intent to commit rape but not convicted of this offense.
On October 31, 1971, at 4:30 a.m. Matsumi S. was awakened and sat up in bed when someone turned off a lamp in her room. The person pushed her back down and told her in a slow husky voice not to make any noise. Instead of screaming, she asked the intruder if she could get up to get something first. He agreed, and Matsumi went to get a towel. She was about to get on the towel when she started screaming. The man panicked and fled. Matsumi told police the intruder was Black and wore a cologne she could smell. A friend of Matsumi’s who lived down the hall recalled that defendant had visited the apartment, tried to date one of the occupants, smelled strongly of cologne and drove a Karmann Ghia. Defendant was charged with assault with intent to commit rape.
As to this offense, Dr. Korpi testified that because defendant was arrested but was not convicted, he was “[c]ertainly … not going to give it the weight of conviction [but] I am not going to throw it out as irrelevant if the facts seem to make sense. So I am giving this some weight.”
Defendant was brought to court on these cases in 1971. However, he escaped from the courtroom and fled to Denmark. According to Dr. Korpi, defendant has spoken to various probation officers, psychologists and police officers over the years about his time in Denmark. He has variously told them that he was working in theater, and that he was pimping; that a prostitute accused him of rape on May 30, 1972; that he was acquitted by a jury, or that the case was dismissed; and that he was deported as a result. That is all that is known.
After Dr. Korpi testified about the particulars of the offenses for which defendant had been arrested but not convicted, the court gave the following admonition: “We are about to take a break. Keep in mind when an expert, such as this one, or any of the others that testify, they are going to talk to you about the basis or reasons for their opinions. That is not for the truth of the matter, but the basis for their opinion. It’s talking about the reasons how they come to a conclusion. If you see me leaving wearing a raincoat and carrying an umbrella, it’s because my court reporter told me it was raining outside. It does not mean that it is actually raining outside. But it is explaining why I am actually doing that.”
Subsequently, in 1973, when defendant was re-arrested, Paula R. and Matsumi S. were out of the country and unavailable for trial. Those two cases were dropped.
Defendant was out of custody from his prior prison sentence for three years and three months before the Mountain View incidents occurred.
Likelihood of Reoffense
Dr. Korpi employed four actuarial assessment devices to measure the statistical likelihood that defendant would reoffend if he were released. Defendant received high scores on all of them. The scores indicated that if defendant were released, within the next five to seven years, he stood a 45 to 50 percent chance of reoffending. In Dr. Korpi’s opinion, “it is likely that he will act out in a sexually violent fashion against persons he doesn’t know very well or strangers.”
Defendant’s Testimony
Defendant was called as witness by the prosecution. He disagreed with Dr. Korpi’s diagnoses of paraphilia and antisocial personality disorder. He does not currently have, nor has he ever had, those disorders. He has never availed himself of any sex offender treatment available at Atascadero State Hospital.
Defendant admitted that he “broke into the house and attempted to assault Paula R.” on October 26, 1971. He did not recall attempting to assault Matsumi S. on October 31, 1971.
Later in his testimony defendant recanted this admission.
He admitted the incident with Carleen B., the 1971 offense of which he was convicted. However, he was “pretty drunk and drugged out” at the time, and accidentally tripped and fell on her sleeping on the bed. He went into her place with the intent to steal, but after he fell on her his intent changed to rape. At that time, he was driving a 1969 Karmann Ghia, but it was brown or beige, not yellow. It sounded like a normal Volkswagen.
He admitted that a former prostitute who had worked for him in Denmark accused him of rape; however, he denied that he was guilty of rape, and he was never convicted of rape in Denmark. He denied telling an evaluator that sometimes he burglarized to rape.
Defendant admitted he was “completely guilty” of the rapes of Eileen H. and Kathy B. While free on bail, he was arrested for two counts of soliciting the murders of the two rape victims, but the charges were dismissed. He was convicted of three counts of burglary and two counts of rape. At the age of 33 he was sentenced to prison for 33 years of which he served 17 years.
If released, he could find work as a gemologist. He also would have real estate investment opportunities through a friend, Henry Price.
Dr. Jeko’s Testimony
The court recognized Dr. Jeko as an expert in “forensic schooling” qualified to evaluate sexually violent predators. She evaluated defendant on January 28, 2004, December 1, 2004, and June 24, 2005. Defendant declined to be interviewed by her for the evaluations. She conducted her evaluations by reviewing Department of Corrections’ files, which included rule violations, staff recommendations, abstracts of judgment of the actual convictions, felony complaints through the years, and FBI and California “rap sheets.” She also reviewed police reports and medical reports in defendant’s Atascadero file.
She diagnosed defendant with paraphilia not otherwise specified, nonconsenting females; polysubstance dependence on marijuana, alcohol and cocaine, in institutional remission; and antisocial personality. Based on the records, especially defendant’s statements to an evaluator in 1999, she found that defendant’s volitional capacity was impaired. She also found that he was emotionally impaired, as evidenced by his high score on a test for psychopathy. Based on the defendant’s score on the Static 99, which she considered the most “consistently validated” of the actuarial risk assessment tools, as well as other dynamic variables she considered, Dr. Jekel concluded that defendant remained a risk for sexual reoffending and met the criteria of a sexually violent predator.
In her June 2005 evaluation, Dr. Jeko had raised defendant’s score on the Static 99 from a 6 to an 8 on scale of 0 to 12 based on her receipt of the police reports about the Carleen, Matsumi and Paula assaults and burglaries, which was new information she did not previously have.
The Defense Case
Dr. Raymond Anderson, a clinical psychologist testified on defendant’s behalf. The court recognized Dr. Anderson as an expert “in the area of SVP assessments of individuals.” Dr. Anderson met with defendant on several occasions in mid 2004 and administered a number of personality and sexual functioning tests which took defendant two days to complete. In his opinion, defendant does not “suffer from any mental disorder, and specifically not from a preferential rape disorder” or from a paraphilia. In his opinion, defendant did not pose a serious and well-found risk of reoffending.
Dr. Ollie Glover, a clinical and forensic psychologist, also testified on defendant’s behalf. The court recognized him as an expert in forensic psychology and in the assessment of whether or not individuals meet the criteria for SVPs. He met with defendant at the county jail three times for a total of seven hours. He administered several tests. In Dr. Glover’s opinion, defendant does not currently suffer from a mental disorder, and does not currently meet the criteria for placement in a facility. Specifically, he did not think defendant suffers from paraphilia or from antisocial personality disorder. In forming his opinion, he took into account the June 2004 and March 2005 reports from Atascadero, neither of which found that defendant had an antisocial personality disorder. He could not definitively say whether defendant suffered from a mental disorder in the 1970’s or 1980’s when he committed his crimes. Based on test results, interviews with defendant and hospital and state prison records, Dr. Glover opined that defendant did not have serious difficult in controlling his behavior. In Dr. Glover’s opinion, neither defendant’s volitional or emotional capacity is currently impaired. Dr. Glover did not conduct any assessment of defendant’s potential for committing future sexual offenses, as he does not “personally believe from a professional viewpoint that behavioral scientists have reached a point in our profession that we can predict with any degree of accuracy future behavior.”
Henry Price is a childhood friend of defendant and has kept in contact with him over the years. He has a 1990 felony manslaughter conviction for which he went to prison. When he was younger he used drugs. Mr. Price had made changes in his life, and he had noticed positive changes in defendant. They talk about God together. Mr. Price sells real estate for a living and he would be willing to help defendant find employment in the real estate field if defendant is released.
Mr. James Burris, Jr. has known defendant for about four years and saw him every day when they were inmates together at Atascadero. They talked about God and about how to live right. Together they created a two-page document entitled “Steps to Change” modeled on the 12-step program developed by Alcoholics Anonymous. Mr. Burris has suffered numerous felony convictions, including robbery, assault, rape, and lewd and lascivious acts with a child. At Atascadero, Burris had observed defendant interacting in a helpful way with hospital staff. He had never known defendant to act sexually inappropriately or violently. He had never seen defendant use illegal drugs at the hospital, although he had seen others do so.
Eleanor Childs is defendant’s younger sister who lives in Vacaville with her 25-year-old son and owns her own home. In 1992 she suffered a conviction for felony petty theft with a prior conviction. Over the years she has visited defendant in different prisons once or twice a month, more often when he was incarcerated in Vacaville. She has not visited him at Atascadero, but she writes him there and occasionally speaks to him on the phone. She has a close relationship with defendant. She and defendant have discussed religion for more than 10 years. In her opinion, defendant is a different person now who “loves the Lord a lot.” If he were to be released, defendant could live with her and she would give him her full support.
Defendant owned some property with Ms. Childs’ stepfather that was worth $500,000 when her stepfather sold it the previous year. The proceeds from the sale were divided among all the siblings, but Ms. Childs has set aside probably $200,000 for defendant.
DISCUSSION
1. Effect of Mootness
In Litmon this court, faced with a novel question of civil procedure, agreed to decide whether the seemingly intractable problem of delay in some SVPA proceedings could be solved by the consolidation of overlapping recommitment petitions. We did so even though we recognized that writ review of interim orders is an extraordinary remedy, and that the 2002 petition at issue was technically moot because the recommitment period had already expired. We believed writ review was nevertheless appropriate because “the question whether serial SVP petitions for re-commitment may be consolidated for trial is one of first impression and writ review is appropriate to provide guidance to the bench and bar on SVPA trial procedures.” (Litmon, supra, 123 Cal.App.4th at p. 1166.) We also believed we had the discretion to decide the question, despite its mootness, because it was “an important question affecting the public interest that is capable of repetition, yet evading review.” (Ibid., internal quotation marks omitted.)
In his Reply to the Attorney General’s Return, defendant argued that the petition for writ of mandate was not moot because “there has been no adjudication of the first petition.”
In Litmon’s and defendant’s cases the trial court consolidated, over defense objections, successive recommitment petitions that had not been tried due to delays in the SVPA proceedings. We determined that “the courts’ ‘inherent power to create new procedures if necessary in pending cases’ encompasses the power to consolidate recommitment petitions under the SVPA in the proper case.” (Litmon, supra, 123 Cal.App.4th at p. 1175.) However, “because the SVPA evidences a legislative intent to provide a trial on every filed recommitment petition as close in time to the expiration of the prior commitment as practicable,” we further determined that the power to consolidate is limited. (Id. at p. 1176.) “[A] motion to consolidate successive petitions should not be granted unless the SVP consents to consolidation or the consolidation will not delay the trial of the earlier petition.” (Id. at p. 1177.) We also held that consolidation is permissible only where “consolidation will not prejudice the SVP’s right to a fair trial….” (Ibid.) Finally, we determined that because trial on defendant’s earlier recommitment petition had been delayed solely to accommodate a consolidated trial on the consolidated earlier and later recommitment petitions, the trial court erred in ordering consolidation of defendant’s two pending recommitment petitions. (Ibid.)
At no time did defendant seek dismissal of the 2002 petition in this court as a remedy for an erroneous consolidation order, and we never considered whether such a remedy would be appropriate. Instead, we concluded that “Litmon and Johnson were entitled to undelayed trials of the earlier recommitment petitions months ago. We cannot undo the delay that has already occurred. On remand, the sole remedy that we can afford these petitioners is to direct the trial court to immediately schedule trials on the earlier petitions and to deny any motions to consolidate the earlier and later petitions unless the SVPs agree to consolidation.” (Litmon, supra, 123 Cal.App.4th at p. 1177.) Defendant, who at all times during the writ proceedings in this court was represented by counsel, did not petition for rehearing of our disposition. However, defendant filed a pro per petition for review in the California Supreme Court arguing for the first time that because the 2002 to 2004 commitment period had already expired, the recommitment petition was moot and must be dismissed because “the SVPA does not provide[] for determinations of one’s mental condition and dangerousness after the fact [and] clearly the remedy should have been an order[] that all recommitment petitions be dismissed, and Johnson be released forthwith.” The Supreme Court denied review.
See footnote 5, ante.
Over defense objections of mootness, the trial court carried out our disposition and defendant was given his trial on the 2002 petition. Now, on appeal from an unfavorable verdict, defendant complains that he should never have had a trial at all because, by the time the trial took place, he had long since served the two-year recommitment period to which the 2002 petition pertained.
Assuming for the sake of argument that trial on the 2002 petition was moot, this appeal is also moot for the same reasons: defendant has already served the two-year recommitment period to which the 2002 petition pertained; furthermore, he has already had the trial which he says he should not have had. Moreover, defendant’s current confinement is not related to the 2002 petition. He has already been tried on the consolidated petitions for the periods from 2004 to 2006 and 2006 to 2008, and is currently confined in a state hospital pursuant to the court’s June 29, 2007 order adjudging him a sexually violent predator. An appeal from that order is pending.
The People urge us to dismiss this appeal as moot because reversal of the court’s 2005 order can have no practical effect, and because the issues are not “likely to recur while evading appellate review” and do not “involve[] … public interest.” (People v. Cheek (2001) 25 Cal.4th at 894, 897-898 (Cheek); People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado); Litmon, supra, 123 Cal.App.4th at p. 1166.) The People acknowledge that in Cheek and Hurtado our Supreme Court nevertheless chose to decide the issues before them, despite their mootness, because the issues involved questions of statutory construction affecting all SVPA trials. They argue that this case is distinguishable, because the asserted trial errors here do not involve issues of statewide importance, and defendant’s motion to dismiss for mootness “is dependant on the unique factual circumstances of this case and the specific directions” we gave in Litmon.
Defendant responds that the People’s argument is “illogical,” that this court did not decide in Litmon that “the underlying case is in some sense moot,” and that the mootness issue is one of first impression and therefore of statewide importance, capable of repetition yet evading review. He also disputes that a ruling would have no practical effect, arguing that vacating the judgment would have the effect of “alleviating the collateral effects of that judgment” such as the attorney fee order.
In our view, for the most part, this appeal does not raise issues affecting the public interest, or that are capable of repetition yet evade review. The trial in this case was ordered as a unique remedy for a particular problem in two discrete cases – Litmon’s and Johnson’s. We see no likelihood that the situation of which defendant now complains will be repeated on a statewide basis. If such repetition does occur, we may decide at some future time that moot trials in SVP cases raise issues of statewide importance that are capable of repetition yet evade review. We therefore decline to review defendant’s claims that (1) dismissal of the petition was required because of mootness or that (2) the petition should have been dismissed because of mootness or that (3) defendant was deprived of substantive due process by having a trial on a moot recommitment petition.
We also decline to review defendant’s claims of evidentiary error. The arguments made do not raise novel issues of statewide importance. The issues, if they arise again in the context of defendant’s latest trial, are subject to review in defendant’s pending appeal. It would be speculative to assume that defendant’s appeal from the court’s most recent order will become moot, or that a new recommitment will be filed to extend defendant’s commitment from 2008 to 2010. Thus, no purpose would be served by issuing an advisory opinion on any evidentiary issue which may or may not recur.
However, we do agree that our review of defendant’s attorney fee claim will have some practical effect in his case, and that the statutory authority for imposition of attorney fees in cases arising under the SVPA warrants discussion. Therefore, we will review defendant’s attorney fee claim; for the reasons stated below we will strike the court’s attorney fee order and remand the matter for a hearing on defendant’s ability to pay the actual costs of the legal services provided; but, for the reasons heretofore stated, we will then dismiss defendant’s appeal as moot.
2. Attorney Fees
Defendant contends the trial court erred in imposing $23,000 in attorney fees. Specifically, defendant challenges the sufficiency of the evidence with regard to his ability to pay attorney fees and the amount of the attorney fees ordered. He also contends the court failed to follow the statutory procedures for imposing attorney fees in an SVP case. The Attorney General argues that defendant’s complaint is “premature” because “there was no final order assessing the attorney’s fees.”
Both parties agree, and we concur, that the primary statutory authority for imposing attorney fees to reimburse the county for providing an SVP with legal representation is Government Code section 27712. That statute provides, in relevant part: “In any case in which a party is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the proceedings, or upon the withdrawal of the public defender or private counsel, after a hearing on the matter, the court may make a determination of the ability of the party to pay all or a portion of the cost of such legal assistance. Such determination of ability to pay shall only be made after a hearing conducted according to the provisions of Section 987.8 of the Penal Code; except that, in any court where a county financial evaluation officer is available, the court shall order the party to appear before the county financial evaluation officer, who shall make an inquiry into the party’s ability to pay this cost as well as other court-related costs. The party shall have the right to dispute the county financial evaluation officer’s evaluation, in which case he or she shall be entitled to a hearing pursuant to Section 27752. … If the court determines, or upon petition by the county financial evaluation officer is satisfied, that the party has the ability to pay all or part of the cost, it shall order the party to pay the sum to the county in any installments and manner which it believes reasonable and compatible with the party’s ability to pay. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order shall not be enforced by contempt. [¶] The court, or in a county which has a county financial evaluation officer, the board of supervisors, shall adjudge a standard by which to measure the cost of legal assistance provided, which standard shall reflect the actual cost of legal services provided. Appointed counsel shall provide evidence of the services performed pursuant to such standard.”
Penal Code section 987.8 provides, in relevant part, that “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” of legal assistance provided through “the public defender or private counsel appointed by the court.” (§ 987.8, subd. (b).) The statute defines “[a]bility to pay” as a defendant’s “overall” financial capability to pay and lists factors relevant to this determination: (1) the defendant’s “present financial position”; (2) the defendant’s “reasonably discernible future financial position” during the six months following the ability-to-pay hearing; (3) the likelihood of employment during that period; and (4) any other facts relevant to the defendant’s “financial capability.” (§ 987.8, subd. (g)(2)(A)-(D).) The statute further provides: “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 discernable future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernable future financial ability to reimburse costs of his or her defense.” (§ 987.8, subd. (g)(2)(B).)
We first address the Attorney General’s argument that the trial court did not actually order attorney fees. The Attorney General contends the court made no order because it “referred [defendant] to the Department of Revenue for an evaluation of whether you have the ability to pay.” We disagree.
Before referring defendant to the Department of Revenue, the court ordered defendant to pay $23,000 in attorney fees based on (1) Eleanor Childs’ testimony at trial that she had set aside $200,000 for defendant from the proceeds of the sale of property owned by her stepfather and defendant; and (2) its general knowledge of “what the attorney force in this county gets paid” and the experts’ testimony about their fees. After the referral, no mention was made of the Department of Revenue reporting back to the court prior to imposition of an attorney fees order. The sentencing minute order reflects that $23,000 in attorney fees were ordered.
Although the court may well have intended to fine-tune the precise amount of the fee after the Department of Revenue’s subsequent determination of the extent of defendant’s ability to pay, it is nevertheless clear from the record that the court ordered defendant to pay attorney fees in the presumptive amount of $23,000 and that, in fact, no provision was made for the Department of Revenue to report back to the court prior to a final determination of the issue. Furthermore, under both Penal Code section 987.8 and Government Code section 27712 only the court has the authority to “make a determination” regarding a defendant’s ability to pay; the financial officer is authorized only to make an “inquiry.” Under these circumstances, we find that the court made an order and that this appeal is not premature.
A finding of present ability to pay may be explicit or implicit, provided it is supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) “Under the substantial evidence rule, a reviewing court will defer to a trial court’s factual findings to the extent they are supported in the record, but must exercise its independent judgment in applying the particular legal standard to the facts as found.” (People v. Butler (2003) 31 Cal.4th 1119, 1127.) Turning to the question whether substantial evidence supports the court’s findings in this case, we note that the Attorney General does not address the merits of this question.
Since Government Code section 27712 specifically references Penal Code section 987.8, we look to the cases interpreting that statute for guidance. “The specific language of section 987.8 expressly requires a finding of present ability to pay for defense costs. ‘The section 987.8 requires that there be a finding of “present” ability to pay.’ (People v. McDowell (1977) 74 Cal.App.3d 1, 4.) ‘In arriving at the meaning of the words “present ability” as used in the statute, we think it significant to note the word “present” did not find its way into the statute by accident. As originally framed in the Senate, the bill proposing the addition of the code section required only a determination of the defendant’s “ability” to pay for his attorney. The modifying word “present” was inserted by amendment in the Assembly. [Citation.]’ (People v. Kozden, [1974] 36 Cal.App.3d 918, 921-922.) ‘Used as an adjective, the word “present” connotes now, existing, at hand.’ (Id., at p. 922.)” (People v. Nilsen, supra, 199 Cal.App.3d at pp. 350-351.)
In our view, Ms. Childs’ sworn testimony that she had set aside “probably 200,000” for defendant’s use upon his release out of the proceeds of the sale of some real estate in which defendant had an interest, shows no more present ability to pay than the proceeds from the insurance policy on the victim’s life in People v. McDowell, or the unspent monies in retained counsel’s trust account in People v. Nilsen. Child’s testimony did not establish that defendant had a legal right to the money, or access to the money independent of her, or that she was willing to disburse any money to him while he was still confined. As far as could be determined from her testimony, if she changed her mind about giving defendant the money, defendant might or might not have any legal recourse. “The existence of a mere potentiality of ability to pay in the future is not a basis for an order of immediate payment. [¶] … The statute requires present ‘ability’ to pay; a right to payment at some indefinite time in the future may, under some circumstances, be a ‘vested’ right, but until collected (or at least immediately collectable) such a right does not show an ability to pay ‘presently.’ ” (People v. McDowell, supra, 74 Cal.App.3d at pp. 4-5.)
Furthermore, in contravention of the statutory directive that the standard used by the court to assess fees “reflect the actual cost of legal services provided,” and that “[a]ppointed counsel shall provide evidence of the services performed pursuant to such standard,” the court’s determination of the fees to be paid by defendant did not reflect actual costs and defense counsel did not even present an itemized bill for her services. (Gov. Code § 27712.) “The court must review evidence of the actual costs to the county before it can assess costs or attorney’s fees to the defendant.” (People v. Poindexter (1989) 210 Cal.App.3d 803, 811.)
Thus, the court’s determination that defendant should pay $23,000 in attorney fees is not supported by substantial evidence. (See People v. Poindexter, supra, 210 Cal.App.3d at pp. 810-811; People v. Cruz (1989) 209 Cal.App.3d 560, 565-566; Conservatorship of Berry (1989) 210 Cal.App.3d 706, 727.) However, because Mrs. Childs’ testimony at the very least suggests that defendant may have access to a substantial amount of money, we think this is an appropriate case to remand for a hearing on defendant’s real ability to pay the actual costs of the legal services provided.
CONCLUSION
Because defendant’s appeal is moot and, for the most part, does not raise issues which are of statewide importance or are capable of repetition yet evading review, we will dismiss the appeal as moot. However, because review of defendant’s challenge to the court’s attorney fee order can have practical effect in his case and provide guidance on the imposition of attorney fees in cases arising under the SVPA, we review that claim and conclude the order imposing attorney fees is not supported by substantial evidence. We will therefore strike the order and remand the matter for a hearing on defendant’s ability to pay the actual costs of the legal services provided before dismissing the appeal.
DISPOSITION
The order directing defendant to pay attorney fees is stricken. The matter is remanded for a hearing on defendant’s ability to pay the actual costs of the legal services provided. The appeal is dismissed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.