Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. VA111999 Lori A. Fournier, Judge.
Lori E. Kantor, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
After appellant’s conviction on two counts of grand theft auto (Pen. Code, § 487, subd. (d)(1)), the trial court ordered appellant “to pay attorney fees in the amount of $8265.18” to reimburse the county for the cost of his defense by the public defender. Section 987.8 of the Penal Code authorizes such an order, after notice and hearing to the defendant and upon written findings based on a showing of the defendant’s present ability to pay the ordered costs, or his likely ability to pay them within no more than six months of the order. (Pen. Code, § 987.8, subd. (e).)
We are faced in this appeal with a record that reflects no notice to defendant of the potential for such an order, and no indication of the order’s grounds or evidentiary basis, nor of the procedure by which the court determined either the amount to be reimbursed or the defendant’s ability to pay. We have only appellant’s probation report, which states that his occupation and financial status are “unknown, ” and his sentence, which indicates it is likely he will remain in state prison for most of the next five years. On this record we are constrained to set aside the order and otherwise affirm the judgment.
Background
The evidence at trial indicated that, after asking to examine two Ford pickup trucks at a Long Beach Ford dealership, appellant Kevin Ray Jones and a companion obtained keys to the trucks from a salesman. After Jones’s companion test drove the trucks, Jones and his companion switched the trucks’ keys for fake keys, then some time later returned and used the keys to take the trucks with the intention to sell them.
Jones was charged by information with two counts of grand theft auto (§ 487, subd. (d)(1)), and two counts of grand theft auto with two qualifying prior convictions (§ 666.5). He was convicted following a jury trial on two counts of grand theft auto (Pen. Code, § 487, subd. (d)(1).) He was sentenced to the high term of four years in state prison on count 1, and to an additional one year consecutive term on count 2, less 220 days of presentence custody credit. In addition to a court security fee and criminal conviction assessment, the trial court ordered Jones to “to pay attorney fees in the amount of $8265.18, ” apparently pursuant to Penal Code section 987.8. Jones filed a timely notice of appeal. (Cal. Rules of Court, rule 8.308(a).)
Jones’s appeal challenges neither his conviction nor his sentence, but only the order requiring him to reimburse the county $8265.18 for its costs of providing him with legal representation by the public defender.
By letter dated October 7, 2010, this court requested that appellant’s counsel address the sufficiency of the record to support the reimbursement order, and afforded respondent 30 days in which to respond. Appellant’s Supplemental Opening Brief was filed November 17, 2010. Respondent filed a late response, with the court’s permission, that concedes the error and concedes that the challenged order should be stricken without remand.
Discussion
Penal Code section 987.8 authorizes the trial court to order a defendant to reimburse the county for the costs of legal representation provided him at public expense, and sets forth the prerequisites for such an order. The record in this case, however, contains no reference to the subject beyond the order itself-no notice to defendant of the potential for such an order, no indication of the grounds or the evidentiary basis for the order, no hint that Jones was afforded an opportunity to be heard, and no indication of the procedure by which the court determined either the amount to be reimbursed, or the defendant’s ability to pay. The only indication on the subject in the record is the probation report, prepared before trial but filed on the date of sentencing (and not mentioned by the court in connection with the challenged order), which states that Jones’s occupation and financial status are “unknown.”
Code citations are to the Penal Code unless otherwise indicated.
In People v. Viray (2005) 134 Cal.App.4th 186, 1213-1214, the defendant contended on appeal that the trial court had erred by ordering her to reimburse the public defender’s office pursuant to section 987.8, as Jones contends here, on the grounds that the record failed to show that she had notice of the hearing at which the court imposed the order; that the hearing itself was inadequate because defendant’s position was not solicited or presented; that the evidence was insufficient to establish the defendant’s ability to pay the fees; and that the amount awarded was unsupported by evidence of the actual costs incurred by the county to provide representation. Because the third and fourth of these grounds were meritorious, the Court of Appeal in People v. Viray did not consider or discuss the first two grounds. (134 Cal.App.4th at p. 1214.)
In People v. Viray, the court first held that because her attorney was an employee of the party seeking reimbursement-the county-the defendant was effectively unrepresented and could not be faulted for having failed to object to the reimbursement order. (134 Cal.App.4th at pp. 1214, 1216.) Here, the same is true-except that here the record fails even to show what party originated the request for the order.
In People v. Flores (2003) 30 Cal.4th 1059, our Supreme Court held that under section 987.8, the court must presume that a defendant who has been sentenced to incarceration for more than six months cannot afford to reimburse the county for its cost of providing representation; the reimbursement order therefore must be supported by evidence sufficient to overcome that presumption. (Id. at pp. 1068-1069.) Here, the presumption is not overcome. The record contains no evidence at all with respect to Jones’s financial ability to reimburse the county in any amount at all, and the law presumes in the absence of contrary evidence that he has no such ability. The absence from the record of evidence sufficient to support a finding that Jones had the ability to reimburse the county for attorney fees in any amount at all therefore is fatal here, just as it was in People v. Viray, supra, 134 Cal.App.4th at pp. 1214, 1216.
The order is equally unsupported by evidence that $8,265.18 fairly represents the amount incurred by the county for Jones’s defense, an essential element of the proof required to support the order. (People v. Viray, supra, 134 Cal.App.4th at p. 1217.) As with respect to every other aspect of the order, the record in this case contains no evidence at all. For that defect, too, the order must be set aside.
In light of the record’s insufficiency to support the order, we need not reach or discuss the impact of the record’s failure to show compliance with other of the statute’s express requirements. (See People v. Viray, supra, 134 Cal.App.4th at p. 1214.) Nor is the record sufficient to determine whether a valid reimbursement order could now be imposed consistent with section 989.8’s requirements and Jones’s due process rights.
For example, notice to Jones at the time counsel was appointed that reimbursement might be required (see § 987.8, subd. (b)); notice of the amount of the reimbursement request (see § 987.8, subd. (d)(1)); notice of Jones’s procedural rights with respect to the reimbursement order, and of the time within which he may respond to it (see § 987.8, subds. (d)(2), (d)(3)); the opportunity to be heard, to present evidence, to cross-examine witnesses, and to have the evidence disclosed to him with respect to the reimbursement request (see § 987.8, subds. (e)(1-4)); and the right to a written statement of the court’s findings with respect to its reimbursement order (see § 987.8, subd. (e)(5)).
Disposition
The trial court’s order for Jones to pay attorney fees in the amount of $8265.18 is stricken. The judgment is in all other respects affirmed.
We concur: MALLANO, P. J., JOHNSON, J.
Section 987.8 provides in pertinent part:
“(b) 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....
“(c) In any case... in which the defendant, at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, ... the court shall make a determination of the defendant’s ability to pay as provided in subdivision (b), and may, in its discretion, make other orders as provided in that subdivision. [¶]... [¶]
“(f) 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.
“(g) As used in this section: [¶] … [¶]
“(2) ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following:
“(A) The defendant’s present financial position.
“(B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. 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.
“(C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing.
“(D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.”