Opinion
A147219
07-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JERRY LEROY MONCKTON, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR176657)
On appeal from a judgment of conviction for indecent exposure and making criminal threats, defendant Jerry Leroy Monckton contends the trial court's order requiring him to pay a portion of his defense costs must be reversed. He argues that the order was entered without notice or an opportunity to be heard and is contrary to the statutory presumption that a defendant who is sentenced to prison lacks the ability to pay defense costs. He also claims the evidence before the court was insufficient to support a finding that he had the ability to pay the costs of his defense. We agree with defendant and shall reverse the challenged order.
PROCEDURAL HISTORY
Because the facts of defendant's offenses are not relevant to our determination of the issues on appeal, we limit the recitation of the facts to the procedural history relevant to defendant's claim.
The Napa County District Attorney filed an information charging defendant with two counts of making criminal threats (Pen. Code, § 422) and one count of indecent exposure (§ 314, subd. (1)). The district attorney further alleged that defendant had served prior prison terms within the meaning of section 667.5, subdivision (b). A jury found defendant guilty as charged of the three crimes alleged in the information. At the prosecutor's request, the court dismissed the prior prison term allegations.
All further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced defendant to serve two years in state prison, composed of the middle term of two years for one count of making criminal threats, a concurrent term of two years for the second count of making criminal threats, plus a concurrent term of six months for indecent exposure. The trial court imposed a restitution fine of $300, a parole revocation fine of $300, a court security fee of $120, and a criminal conviction assessment of $90.
As relevant here, the court estimated it cost $3,000 in attorney fees to provide a defense for defendant but agreed to waive $2,750 of that amount, resulting in an order requiring defendant to pay $250 for the costs of his defense at trial. Defendant timely appealed.
DISCUSSION
Defendant contends the order requiring him to pay costs for his defense at trial must be reversed because it was entered without notice or an opportunity to be heard and is contrary to the statutory presumption that he is unable to pay. The Attorney General does not dispute the merits of defendant's claim but instead argues that defendant forfeited his challenge to the order as a result of his failure to object at the time the order was imposed. Because defendant himself objected to the order on the ground he lacked the ability to pay, we do not agree that he forfeited his right to pursue the claim on appeal. And, because the record does not reveal that defendant has the present ability to pay for the cost of his representation, the order must be reversed.
Section 987.8 permits a court to order a defendant to pay all or a portion of the cost of court-appointed counsel after notice and a hearing to determine if the defendant has the present ability to pay. In assessing a defendant's ability to pay, the court may consider both the defendant's present financial position and the defendant's reasonably discernible future financial position, limited to a period of six months in the future. (§ 987.8, subd. (g)(2).) A defendant who is sentenced to prison "shall be determined not to have a reasonably discernible future financial ability to reimburse" defense costs "[u]nless the court finds unusual circumstances." (§ 987.8, subd. (g)(2)(B).)
Section 987.8, subdivision (b) provides in relevant part: "In any case in which a defendant is provided legal assistance, either through the public defender or appointed private counsel, the court may, after notice and hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof."
The statute sets forth a number of procedural requirements that must be satisfied before a court may require a defendant to reimburse attorney fees. Before the court initially appoints an attorney for a defendant at public expense, it must give notice to the defendant that the court may require the defendant to reimburse all or a portion of the cost of representation following notice and a hearing if it is determined that the defendant has the present ability to pay. (§ 987.8, subd. (f).) The statute further specifies that a reimbursement order may only be imposed after giving the defendant notice and an opportunity to be heard on the issue of the defendant's present ability to pay. (§ 987.8, subds. (b), (d).) In the case of a defendant sentenced to prison, the court must make an express finding of unusual circumstances before ordering the defendant to reimburse the cost of representing the defendant. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
B. Background
The parties have not pointed to anything in the record on appeal to suggest defendant was informed at the time he was first appointed counsel that he might be required to pay all or a portion of the cost of his representation. There is also nothing in the record to indicate he had any notice in advance of the sentencing hearing that the court would consider requiring him to reimburse attorney fees incurred in his representation.
According to the probation officer's report, defendant was unemployed and received $935 per month in Supplemental Security Income (SSI) disability payments at the time he was sentenced. The report does not contain any information suggesting that defendant had any assets or other sources of income. The probation officer did not recommend that defendant pay the costs of his defense pursuant to section 987.8.
At the sentencing hearing, the court imposed various fines and fees and then, without prompting from the prosecutor or defense counsel, raised the issue of reimbursing the cost of the defense at trial: "With respect to attorney's fees, the matter went to a jury trial. I think it was three days or less. Was the trial three days?" Defense counsel confirmed the trial lasted three days. The court then stated: "That would be $3,000 in attorney's fees. Mr. Monckton will be sentenced to prison. Accordingly, I'm going to order the attorney's fees reduced to $250.00." After asking counsel whether there was "anything else," defendant interjected: "Your Honor, can I get - can I get anything else, any of that money waived? Because I got no money. I'm not going to be able to pay that money right now." The court responded that it reduced the defense costs by over 90 percent and that the other fees were mandatory.
C. Forfeiture
The Attorney General contends defendant has forfeited his challenge to the reimbursement order by failing to object in the trial court, relying upon our Supreme Court's recent decision in People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar). In Aguilar, the Supreme Court held that a defendant is generally precluded from asserting an appellate challenge to an order for reimbursement of fees paid to appointed counsel under section 987.8 when the defendant failed to object to the order in the trial court. (Aguilar, supra, 60 Cal.4th at p. 864.) However, the court noted that the case "did not present" and the court therefore did not address "whether a challenge to an order for payment of the cost of the services of appointed counsel is forfeited when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part." (Id. at p. 868, fn. 4.) The court cited to People v. Viray (2005) 134 Cal.App.4th 1186 (Viray) as an example of a case addressing such a conflict of interest. (Aguilar, supra, at p. 868, fn. 4.) In Viray, the appellate court held that a forfeiture to an appellate challenge to an attorney fee reimbursement order cannot "properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees," given the "patent conflict of interest." (Viray, supra, 134 Cal.App.4th at p. 1215.) Defendant claims the exception to the Aguilar forfeiture rule relied upon in Viray is applicable here because the public defender had a conflict of interest in both seeking to represent defendant's interests and recover the costs incurred in the defense.
We observe that the facts of this case are distinguishable from Aguilar. There, the defendant was placed on probation instead of being sent to prison. (Aguilar, supra, 60 Cal.4th at p. 864.) The sentencing court largely tracked the recommendations of the probation report when it imposed a reimbursement order without objection from defense counsel. (Aguilar, supra, 60 Cal.4th at pp. 867-868.) As the court observed in Aguilar, the application of the forfeiture rule was particularly appropriate in that case because the defendant had multiple opportunities to object to the fees the court imposed, including in response to the recommendations of the probation report. (Id. at p. 868.) The sentencing court advised the defendant in Aguilar that he would have the opportunity to assert the inability to pay in subsequent proceedings before his probation officer. (Ibid.) By contrast, in this case defendant had no advance notice that the court was contemplating requiring him to reimburse the costs of his defense. Unlike in Aguilar, defendant was sentenced to prison and, as a consequence, there was a statutory presumption that he was unable to pay the costs of his defense. (§ 987.8, subd. (g)(2)(B).) Whereas in Aguilar it was reasonable to assume the defendant would be able to raise the issue of his inability to pay when he reported to his probation officer on a regular basis, the same assumption does not apply to a defendant who is sentenced to state prison.
It is unnecessary to address the scope of the forfeiture rule in Aguilar because we conclude that defendant himself preserved his challenge to the attorney fee reimbursement order. As a general rule, to preserve a challenge to a fee or fine on appeal, a defendant must object in the trial court. (See People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) A defendant's objection is sufficient as long as it "fairly apprises the trial court of the issue it is being called upon to decide." (People v. Scott (1978) 21 Cal.3d 284, 290.) The purpose of the forfeiture doctrine is to bring errors to the trial court's attention so the court can correct or avoid the errors. (People v. Gibson, supra, at p. 1468.)
Here, although defense counsel did not object at the time of sentencing, defendant himself squarely presented the issue of his inability to pay. Defendant fairly apprised the court not only of his objection but also of the basis for the objection. His statements at the sentencing hearing are sufficient to preserve his right to challenge the attorney fee reimbursement order on appeal.
In light of our conclusion, it is also unnecessary to address defendant's claim that he was denied constitutionally ineffective assistance of counsel as a result of his attorney's failure to object. --------
D. Sufficiency of the evidence
A finding of the ability to pay must be supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) Here, there was no evidence before the court that defendant had any assets with which to pay a fee reimbursement order. He was incarcerated at the time of the sentencing hearing and was not working. His only source of income was an SSI disability stipend, which by regulation would have been cut off when he was sentenced to prison for a felony. (See 20 C.F.R. § 404.468. subd. (a).) In assessing defendant's present ability to pay, the court was limited to considering a period no more than six months from the date of the hearing (§ 987.8(g)(2)(B)), yet defendant was sentenced to serve two years in prison so there was no reason to believe he would have the ability to pay within six months of his sentencing. Further, as noted above, in a case where the defendant is sentenced to prison, the presumption is that the defendant has no "reasonably discernible future financial ability to reimburse" defense costs unless the court finds unusual circumstances. (§ 987.8, subd. (g)(2)(B).) There is nothing in the record that would support a finding of unusual circumstances sufficient to overcome the statutory presumption.
Accordingly, because there is no substantial evidence in the record to support a finding that defendant had the ability to pay for all or a portion of the cost of his representation by the public defender, the reimbursement order must be stricken.
The Attorney General urges that we remand the matter to the trial court for further proceedings to determine whether unusual circumstances might support a reimbursement order. In the interests of judicial economy, we decline to do so here. There is nothing in the record to suggest defendant had any assets or income available to satisfy a reimbursement order. By contrast, in the case relied upon by the Attorney General to support a remand order, there was at least some reason to believe the defendant had the ability to reimburse defense costs. (See People v. Flores (2003) 30 Cal.4th 1059, 1069 [at time of sentencing, defendant was stable, employed, and had $1,500 worth of jewelry].)
DISPOSITION
The order requiring defendant to pay $250 as reimbursement for defense costs is reversed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment striking the attorney fee reimbursement order and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
McGuiness, P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.