Opinion
G044458 Super. Ct. No. 10NF0010
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. ADILSON JOSE MONTEIRO, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Reversed and remanded for further proceedings.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
After a two-day trial and approximately 20 minutes of deliberation, a jury found Adilson Jose Monteiro not guilty of forgery. The court assessed $1,000 in attorney fees, pursuant to Penal Code section 987.8, subdivision (b) (section 987.8(b)). Adilson Monteiro appeals from the court's order for attorney fees, arguing the order is based on insufficient evidence of his ability to pay. We agree the evidence is insufficient to sustain the court's order. The order is reversed and remanded for a hearing in conformance with section 987.8.
Penal Code section 987.8, subdivision (b) provides, "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, or upon the withdrawal of the public defender or appointed private counsel, 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. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided." All further statutory references are to the Penal Code unless otherwise stated.
I
FACTS
On the afternoon of January 1, 2010, Buena Park Police Sergeant Dirk O'Dette and Detective Nathaniel Caruso were checking the license plate numbers of cars parked at a particular motel in Buena Park for outstanding warrants and stolen car reports when they noticed Monteiro's 2002 Acura. Monteiro got out of the backseat of his car and met the officers. He gave them consent to search his car, and they found a black shaving kit in the backseat that contained toiletries and one $100 bill. Based on O'Dette's training and experience he thought the $100 bill was counterfeit.
Monteiro acknowledged that the bill was counterfeit, but he claimed he had innocently come into possession of the bill when he made change for someone during a party. A search of Monteiro's motel room failed to yield a wallet or any money. The officers arrested Monteiro, transported him to the police station, and interviewed him following a Miranda advisement. Initially, Monteiro repeated his earlier explanation of how he came to be in possession of a counterfeit bill. Later, he said he realized the bill was counterfeit and tried to find the person who had given it to him but stuffed it into his shaving kit when the search proved fruitless. When he woke up the next morning, he threw the shaving kit and the $100 bill into the trash, but later retrieved the items.
Miranda v. Arizona (1966) 384 U.S. 436
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Attorney Fees
Following the taking of the verdict and dismissal of the jury, the trial court broached the subject of attorney fees. The court stated to defense counsel, "I don't know what his exact financial situation is, but with arraignment, a preliminary hearing, a jury trial, and with the history of the case, probably somewhere in the neighborhood of $2,000." Counsel asserted an award of attorney fees following an acquittal was "essentially, punishing his election to assert his constitutional right to a trial." Counsel also downplayed the amount of time he had spent working on case preparation and court appearances, stating, "I think $2,000 would be quite a high hourly rate . . . ." The court emphasized the purpose of statutorily authorized remuneration to the county for the expense of court proceedings, notwithstanding the ultimate result, and ordered a hearing on the matter.
Monteiro waived his right to personally appear at the hearing because he lives outside of Orange County. At the hearing, his appointed counsel provided the following information on his ability to pay: "I did speak to Mr. Monteiro yesterday. I did not have the financial disclosure sheet in front of me to kind of run through that and get answers to that from him, but I did ask him, 'Are you currently working?' He is not. He has no income currently. I also asked whether he had any substantial assets in the form of a car or real estate or anything like that. And the answer to that was also in the negative."
The court valued "services [provided to defendant] [to be] in the neighborhood of $2,000." With respect to Monteiro's ability to pay, the court stated, "[the] defendant has, based on what I know of him, just from the circumstances of the offense itself, even though that's in the past, and just from the fact that I observed him and he appears not to be physically or mentally disabled and has potential of immediate earnings, should he desire to make immediate earnings; finds that he has the ability to pay $1,000 . . . ." The court granted a defense request for a continuance to provide time for the court to review cases presented by counsel at the hearing.
At the next hearing, the court restated its tentative ruling and found nothing in the authorities provided by counsel that would alter the result. Counsel represented that Monteiro had no income, assets, nor ready access to either in the foreseeable future. Counsel also pointed out that Monteiro was already paying fees in two other cases.
Notwithstanding counsel's representation of Monteiro's financial condition, the court found "that he has, within the meaning of the Code, the ability to pay given his overall capacity to reimburse costs in that amount, considering his ability to pay within the next six months, but no more than that, and considering the likelihood that he shall be able to obtain employment within six months, and all other factors bearing on his capability to reimburse, which includes, to be honest with you, what I learned during the course of the trial, which is that he is not mentally or physically disabled, and he was down here in Orange County attending a party all night, and he could afford to drive down here, and then, he was, apparently, throwing money around here in Orange County at this party. [¶] And it bothered me a little bit that he finds a $100 bill, throws it in the trash, and then takes it back, and he's at an all-night party at a place where, even if he's not currently employed, he appears to have ready funds available to him to engage in these kinds of activities. [¶] For all of these reasons, I find he has that ability to pay. And I order that he reimburse the County for $1,000 for attorney fees."
II
DISCUSSION
Section 987.8 provides, in relevant part, "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 by "the public defender or private counsel appointed by the court." (§ 987.8 subd. (b).) At the hearing, the defendant is entitled to, at a minimum, the following procedural due process: "(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." (§ 987.8, subd. (e).)
"'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 discernable 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 discernable financial position . . . [¶] (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." (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398, quoting section 987.8, subd. (g)(2).)
While a present ability to pay finding may be explicit or implicitly made, in either case it must be supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) That means an appellate court "defer[s] to a trial court's factual findings to the extent they are supported in the record . . . ." (People v. Butler (2003) 31 Cal.4th 1119, 1127, italics added.) In this case, the trial court's finding regarding Monteiro's ability to pay lacks any factual support from the record. Essentially, the court assumed Monteiro is mentally and physically able to work and that he financed the trip to Orange County that landed him in jail. Furthermore, the court was "bothered" that Monteiro found a counterfeit $100 bill, threw it in the trash, and then retrieved it, which somehow translated into "ready funds" regardless of his employment status. Meanwhile, Monteiro's attorney represented that her client was "currently without any income and without any asserts," an averment the trial court did not dispute.
In truth, the record contains not one piece of paper concerning Monteiro's financial status, past, present, or future. There is no probation report, nor is there a financial disclosure form. Nor is there testimonial evidence supporting the court's conclusion. Defense counsel presented hearsay testimony from her client indicating his current unemployment and complete lack of assets, but the court relied on the facts of the crime and unfounded suppositions derived from those facts. We simply cannot find any support for its conclusion Monteiro could pay $1000 in attorney's fees.
The Attorney General essentially concedes the issue by stating, "appellant is correct that there was little verified financial information before the trial court." We would have said no verified information, and we can find no appropriate remedy other than to remand the matter back to the trial court for further proceedings. Monteiro disagrees stating, "it would be inappropriate for this court to second guess the trial court[,]" which is odd because this is why he came here in the first place. In short, we remand the matter for a new hearing on Monteiro's ability to pay in conformance to the requirements of section 987.8. (See People v. Pacheco, supra, 187 Cal.App.4th p. 1401.)
III
DISPOSITION
The order for $1,000 in attorney fees is reversed and the matter remanded with directions for the trial court to determine, in accordance with section 987.8, Monteiro's ability to pay attorney fees.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.