Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCYKCRBF100129.
DUARTE, J.
Pursuant to a plea bargain, defendant pled guilty to attempted grand theft (Pen. Code, §§ 664/487, subd. (a)) and admitted an on-bail enhancement (Pen. Code, § 12022.1, subd. (b)). He was sentenced to two years and four months in prison. On appeal, defendant contends the trial court erred in ordering him to pay the cost of the probation report and booking fees. He further claims error as to the court’s order for attorney fees. For both claims, he argues that the trial court failed to determine his ability to pay.
We conclude that defendant has forfeited any claim of error as to the cost of the probation report and the booking fees by failing to object at sentencing. We reach a different conclusion, however, as to the order for reimbursement of attorney fees. As we will explain, there is a statutory presumption that, absent a finding of an unusual case, a defendant sentenced to prison shall be deemed to lack the financial ability to reimburse costs of his defense, and that an appellate forfeiture cannot “properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees.” (People v. Viray (2006) 134 Cal.App.4th 1186, 1215, original italics.) We will strike the order for payment of attorney fees and otherwise affirm.
We do not include any discussion of the underlying facts of the charges that formed the basis for defendant’s plea as they are not relevant to this appeal.
The probation report recommended that defendant pay various fines and fees. As relevant here, it recommended defendant reimburse the Siskiyou County Probation Department $340 for the cost of the preparation of the presentence report, pay a $148 booking fee, and reimburse appointed counsel fees. The amount of fees to be reimbursed was left blank. The report provided no evidence that defendant had the ability to pay these fees. To the contrary, the report indicated defendant’s auto shop had burned down and defendant claimed that he lost everything, including his business, house, and cars, as a result of his behavior.
Immediately before imposing sentence, the trial court asked defense counsel if he was appointed and how much attorney time he had spent on the case. Counsel responded he “had about three and a half hours in this case--well, four hours.” The court inserted “$260” in the area in the probation report that had been left blank for appointed counsel fees.
The court sentenced defendant to two years and four months in prison, consecutive to the term he was already serving. The court ordered defendant to pay a $400 restitution fine pursuant to Penal Code section 1202.4, subdivision (b)(2) and an additional restitution fine in the same amount pursuant to section 1202.45 of the Penal Code, which was suspended pending successful completion of parole.
The court asked defense counsel if he had reviewed the fines and fees with defendant. Counsel responded he thought the fines and fees were labeled as to be determined and he did not know if defendant wanted him to review those. Counsel had “just looked” at the probation report and reviewed it with defendant quickly. The court gave an “outline” of the fees and offered to read through them more completely. The fees were: $340 presentence report fee, $36 crime prevention fee, $30 court security fee, $30 criminal conviction assessment fee, and $148 booking fee. Defense counsel stipulated to those fees.
DISCUSSION
Defendant contends the trial court erred in imposing these fees because it failed to make an assessment of defendant’s ability to pay them as required for each fee.
I
Presentence Report Fee And Booking Fee
A. Ability to Pay
Penal Code section 1203.1b, subdivision (a), provides for payment of probation costs by the defendant. It provides in part as follows: “In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, ... the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost... of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203....” Section 1203.1b provides for a hearing before the probation officer to determine his ability to pay. (Pen. Code, § 1203.1b, subd. (a).) “The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (Ibid.) If defendant fails to waive the right to hearing before the court, such a hearing shall be scheduled and defendant shall have the right “to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses, and to disclosure of the evidence against the defendant, and a written statement of the findings of the court or the probation officer, or his or her authorized representative.” (Id., subd. (b)(1).)
This section is operative once the board of supervisors of the county adopts an ordinance to that effect. (Pen. Code, § 1203.1b, subd. (i).) Siskiyou County adopted such an ordinance in 1990. (Siskiyou County Code, § 2-26.01.)
The detailed provisions of the statute, including the requirement defendant be notified of his right to a hearing with full due process rights, were not followed here by either the probation department or the trial court. There was no finding of defendant’s ability to pay the cost of the probation report and defendant was not notified of his right to a hearing on his ability to pay.
Government Code section 29550.2 provides for a criminal justice administration fee for administrative costs incurred in arresting and booking a person into county jail if the person is convicted of an offense related to the arrest and booking. “If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person....” (Gov. Code, § 29550.2, subd. (a).)
Again, there was no finding that defendant had the ability to pay this fee.
B. Forfeiture
The People contend defendant forfeited these contentions by failing to object in the trial court. We agree.
The right to appellate review of a nonjurisdictional sentencing issue not raised in the trial court is forfeited. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-755; People v. Scott (1994) 9 Cal.4th 331, 356.) This rule of forfeiture has been repeatedly applied to the challenge of a fine or fee on appeal. (People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1072; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)
While the forfeiture rule might seem inconsistent with Penal Code section 1203.1b and its requirement of a knowing and intelligent waiver of hearing on the ability to pay, the waiver requirement has been found not to apply to appellate review. (See People v. Valtakis, supra, 105 Cal.App.4th at p. 1075.) “[S]ection 1203.1b and other recoupment statutes reflect a strong legislative policy in favor of shifting costs arising from criminal acts back to convicted defendants and replenishing public coffers from the pockets of those who have directly benefited from county expenditures.” (People v. Bradus (2007) 149 Cal.App.4th 636, 643.) It would be inconsistent with this legislative policy to permit convicted defendants to stand silently by, and to raise the issue for the first time on appeal, thus draining both appellate and trial court resources in the process. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1076.) On this record, defendant has forfeited his argument regarding the probation report fees.
In his reply brief, defendant contends he is challenging the sufficiency of the evidence to support imposition of these fees and such challenge is not forfeited by failure to object in the trial court. This court recently rejected this contention in People v. McCullough (2011) 193 Cal.App.4th 864. We distinguished People v. Butler (2003) 31 Cal.4th 1119, 1126, whichheld a defendant could challenge the sufficiency of the evidence to support an order for AIDS testing even in the absence of an objection in the trial court. Butler limited its holding to its particular facts. “Our conclusion in this case is controlled not only by the specific terms of section 1202.1 but also by the general mandate that involuntary HIV testing is strictly limited by statute. For this reason, nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal....” (People v. Butler, supra, 31 Cal.4th at p. 1128, fn. 5.) “[I]t remains the case that other sentencing determinations may not be challenged for the first time on appeal, even if the defendant claims that the resulting sentence is unsupported by the evidence. This includes claims that the record fails to demonstrate the defendant’s ability to pay a fine [citations]....” (Id. at p. 1130 (conc. opn. of Baxter, J.); italics omitted.)
We also distinguished cases that did not apply the forfeiture rule to the imposition of a fee to reimburse the cost of court-appointed counsel. We discuss those cases post.
Defendant has forfeited his challenges to the presentence report and booking fees by failing to object in the trial court. Indeed, at sentencing defendant expressly stipulated to these fees.
II
Attorney Fees
Penal Code section 987.8 provides that a court may order defendant to pay the cost of court-appointed counsel after a hearing to determine if defendant has the ability to pay. “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.” (Pen. Code, § 987.8, subd. (b).) “At a hearing, the defendant shall be entitled to, but shall not be limited to, all of the following rights: [¶] (1) The right to be heard in person. [¶] (2) The right to present witnesses and other documentary evidence. [¶] (3) The right to confront and cross-examine adverse witnesses. [¶]
(4) The right to have the evidence against him or her disclosed to him or her. [¶] (5) The right to a written statement of the findings of the court. [¶] If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability.” (Id., subd. (e).)
In considering defendant’s ability to pay, the court shall consider defendant’s present financial condition and his reasonably discernable future financial position for a period of no more than six months from the date of the hearing. (Pen. Code, § 987.8, subd. (g)(2).) “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.” (Ibid.) This provision has been construed to require an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
The trial court held no hearing on defendant’s ability to pay and there was no evidence in the record to support a finding defendant had the ability to pay. Further, although defendant was sentenced to prison, the court failed to make a finding that this was an unusual case or to otherwise acknowledge the statutory presumption that a defendant sentenced to prison has no financial ability to reimburse the costs of his defense.
The People again assert that defendant forfeited his challenge to the reimbursement order by failing to object in the trial court. We disagree.
An exception to the forfeiture rule has been found for an order requiring reimbursement of counsel fees based on defendant’s right to effective assistance of counsel. In People v. Viray, supra, 134 Cal.App.4th 1186, defendant, who had been granted conditional probation, was ordered to reimburse the public defender’s office $9,200 in defense attorney fees. The court found insufficient evidence of an ability to reimburse (id. at pp. 1217-1218), but first it considered whether the challenge to the reimbursement order was forfeited. “[W]e must consider respondent’s contention that defendant has failed to preserve her challenge to the reimbursement order for appeal because she lodged no predicate objection in the trial court. We recognize that such a view has been adopted by published authority, but we find that authority distinguishable, and do not believe it can be rationally extended to bar objections to an order for reimbursement of counsel fees, for the reason that unless the defendant has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsel’s failure to object to an order reimbursing his own fees.” (Id. at p. 1214, original italics.) “We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees. It seems obvious to us that when a defendant’s attorney stands before the court asking for an order taking money from the client and giving it to the attorney’s employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel’s omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client’s representative. Counsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment.” (Id. at pp. 1215-1216, original italics.)
Here the conflict is not as great as in Viray, where it was defense counsel who brought the fee request to the court’s attention, saying, “‘We’re asking the Court to assess attorney’s fees’ and ‘We’re asking--the amount we’re asking is $9,200 in attorneys fees.’” (People v. Viray, supra, 134 Cal.App.4th at p. 1216.) Nonetheless, defense counsel responded to the court’s request for the number of hours he had on the case without objection or citation to the limiting provisions of subdivision (g) of Penal Code section 987.8.
We find the objection to reimbursement of counsel fees was not forfeited. Since there is no evidence in the record to support a finding of an unusual case, the reimbursement order cannot stand. Given the particular circumstances of defendant’s case, we will strike the attorney fee award without remand in the interest of judicial economy.
DISPOSITION
The order for reimbursement of attorney fees under Penal Code section 987.8 is stricken. In all other respects, the judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment striking the reimbursement order and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
I concur: HULL, Acting P. J.
I fully concur in this opinion but write separately only to encourage trial judges to more carefully follow the law in sentencing and not rely on forfeiture to avoid reversal.
ROBIE, J.