Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB052781. Brian S. McCarville, Judge. Affirmed.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
For the second time, defendant Riad Jacob Khouri (defendant) appeals from the trial court’s order assessing him for costs of a presentence probation investigation and for defense attorney fees. We will affirm.
FACTS AND PROCEDURAL HISTORY
On August 14, 2008, we issued an order taking judicial notice of the opinion in case No. E040829. On the court’s own motion, we hereby take judicial notice of the entire record in that case. Some of the facts about defendant’s original crime are taken from our opinion and from the record in that case, particularly the presentence probation report of May 12, 2006.
On October 26, 2005, defendant was arrested after having twice tried to pass counterfeit money at a convenience store. At the time of his arrest, he had about $4,500 in legitimate money in his possession.
On March 21, 2006, a jury found defendant guilty of two felony counts of possession of counterfeit bills and determined that an allegation that he had a prior “strike” conviction was true. (Pen. Code, §§ 475, subd. (a), 1170.12, subd. (c)(1), 667, subd. (e)(1)) Defendant told the probation officer who interviewed him for the presentence probation report that the money in his possession at the time of his arrest actually belonged to his brother, who had given it to him to repair their mother’s house. The report recommended that he be found unable to pay for defense and probation costs.
All further statutory references are to the Penal Code unless otherwise indicated.
On June 23, 2006, the trial court sentenced defendant to five years four months in state prison. The court also imposed a $600 restitution fine to be paid out of prison earnings, and assessed defendant $2,500 in estimated fees for his court-appointed defense attorney, plus $400 for the costs of the probation investigation and report. After it recalled how much money defendant had in his possession when he was arrested, the court changed the order specifying that the restitution fine was to be deducted from prison earnings and ordered all three amounts deducted from the money taken by the sheriff at the time of defendant’s arrest.
On appeal, we affirmed defendant’s convictions but, pursuant to the provisions of sections 987.8, 1203.1, and 1203.1b, remanded the matter for a hearing regarding the actual amounts of the defense and probation report costs and defendant’s ability to pay them.
The Current Matter:
At a hearing on December 12, 2007, the trial court received memoranda from defense counsel detailing his work on defendant’s case and from the probation department regarding the cost of preparing the presentence report. Defense attorney fees were $183 more than the court had estimated at sentencing, but it allowed the original amount to stand, along with the original amount assessed for the presentence probation report. Over the People’s objection, the court continued the hearing to January 25, 2008, to give defendant more time to submit evidence regarding his ability to pay.
At the continued hearing on January 25, 2008, defendant’s brother, Steven Tyler (Tyler), testified that in September 2005 he and another brother, Kelly Khouri (Khouri), gave defendant a check for $16,000. On query from defense counsel, Tyler agreed that the money had been “loaned.” A copy of the $16,000 check, dated September 6, 2005, was submitted into evidence and examined by the court. The brothers gave defendant the money, Tyler said, to start a business. Two months later, when it became apparent that defendant had not started the business, the brothers decided to allow him to keep the money and use it to instead renovate their mother’s house. Tyler and Khouri hoped that the project would “keep him busy and maybe refocus him.” Defendant did not do any renovations on the property and did not give the money back to his brothers. Tyler did not know if defendant had a job in 2005 when they were lending him money.
Sometime later, before defendant’s arrest for the forgeries in October 2005, Tyler said that defendant had been stopped by San Bernardino police in another matter. At that time he had $9,280 in his possession. In December 2006 the police department had returned that money to Tyler.
Tyler was probably referring to his brother’s arrest on August 23, 2005, as documented on page 2 of the presentence probation report in case No. E040829. According to the report, defendant was convicted in that matter on September 1, 2005, of possession of marijuana (Health & Saf. Code, §§ 11377, subd. (a), 11357, subd. (b)) and sentenced to 50 days in jail.
On October 27, 2005, the day after his arrest for the forgeries, defendant was released from jail. Also on October 27, the sheriff’s department issued him a check for $4,559.03. Just before his trial in 2006, Tyler said, he gave defendant more money because, “I wanted him to have some use of some money.” Tyler gave defendant the additional money by opening a joint account and putting about $3,000 in it. He also gave defendant a PIN number so that he could access all of Tyler’s other accounts.
In closing, defense counsel argued that the money defendant had in his possession at the time of his arrest was not his: “It was a loan of some kind from his brother, Steven Tyler, or from Kelly Khouri.” The district attorney countered that defendant had $4,500 when he was released after his arrest in October 2005 and was given another $3,000 in 2006. It appeared, counsel argued, that his family was in the habit of giving him large sums of money without getting it back and gave him money even when he had no job so could not be expected to pay it back.
After hearing evidence and argument, the court explained its decision to leave the defense fees and probation report costs in place as originally ordered. “It appears to me from the testimony of the defendant’s brother that the family was in the habit of giving money, kind of without any strings at all. [¶] I’m convinced by . . . clear and convincing evidence that the money that he had at the time of his arrest, that was taken by the Sheriff’s Department, that was the money that was taken on the case where he was actually convicted, and I sent him to prison. I find that he had clear custody, care and control of it. It was his money to do with as he saw fit. [¶] . . . [¶] So the Court finds by clear and convincing evidence that [defendant] at the time had the ability to re-pay. And the previous order for attorney’s fees and reimbursement remains.”
DISCUSSION
As we noted in our opinion in defendant’s underlying case, a court may order a defendant who has the financial ability to do so to pay for defense attorney fees and for costs associated with the production of a presentence probation report. (§§ 987.8, subd. (b), 1203.1b, subd. (a).) In both instances, however, the court must give the defendant notice of its intent to levy and must review evidence of actual costs and determine the defendant’s ability to pay them before making an assessment. (§§ 987.8, subd. (b), 1203.1b, subd. (a); People v. Poindexter (1989) 210 Cal.App.3d 803, 810-811.)
The ability to pay is the overall capability of a defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him and includes an assessment of his present financial position. (§ 987.8, subd. (g)(2)(A).) There is a presumption under section 987.8 that a defendant sentenced to state prison does not have “‘a reasonably discernible future financial ability’” to reimburse the costs of his defense unless the trial court finds “‘unusual circumstances’” as provided by section 987.8, subdivision (g)(2)(B). (People v. Flores (2003) 30 Cal.4th 1059, 1068.) If a defendant cannot pay all of the costs and fees but can pay some portion, he must do so. (Id. at pp. 1068-1069.) We review a trial court’s decision regarding a defendant’s ability to pay the assessed amounts for abuse of discretion. (Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1393.) A finding of present ability to pay will not be reversed if supported by substantial evidence, which will be viewed in the light most favorable to the judgment below and will include every fact that can reasonably be deduced from the evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 71-72.)
Here, at the two-day hearing held on December 12, 2007, and January 25, 2008, the court heard testimony and received documentary evidence regarding costs and fees and defendant’s ability to pay them. By the close of the first day of the hearing, the court had before it memoranda regarding probation investigation costs and defense attorney fees. By the close of the second day, it had evidence that, whatever his future ability to pay might be, defendant’s circumstances were unusual compared to most criminal defendants in that he had indeed had the ability to pay the costs of the probation investigation and defense attorney fees at the time of his sentencing in June 2006. It is true, as defendant claims, that the court seems not to have realized that the money taken from him when he was arrested on October 26, 2005, had been returned to him the very next day. But, although the court did not specifically reference it when announcing its decision, the court had other evidence from which it could reasonably deduce that he had more than the total amount of money necessary to pay the assessed amounts: Tyler’s testimony that he had placed $3,000 in an account for defendant’s “use” right before his trial and had given his brother access to all his other accounts. Moreover, as the court said, it appeared from Tyler’s testimony that defendant’s family was in the habit of giving him large amounts of money with no strings—and, we might add, no loan documents—attached.
Defendant places much emphasis on the probation officer’s recommendation that he be found without ability to pay defense or probation investigation costs. When a trial court’s determination of the defendant’s ability to pay is different from the recommendation made by the probation officer, it must state on the record the reasons for its orders. (§ 1203.1b, subd. (b)(4).) The court here did that. It clearly believed that the money defendant had in his possession at the time of his arrest, as well as the additional monies given him by his family was his. Defense counsel’s suggestion that it was “a loan of some sort” was simply unconvincing. Moreover, the probation report and recommendation had been based on defendant’s incomplete and self-serving representations to the interviewing officer. Defendant apparently omitted information about the $3,000 he had been given just before trial. He also failed to mention the open line of credit his brother Tyler had apparently conferred on him when he gave defendant a PIN number so that he could access all of Tyler’s other accounts.
In sum, we find that the court’s deduction that defendant had the ability to pay costs and fees was reasonably supported by the evidence and did not constitute an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.