Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct. No. RIF148127, Sharon J. Waters, Judge.
Gregory L. Cannon, 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, Gil Gonzalez and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Clarence Anthony Montoya appeals following a jury trial. He challenges the sufficiency of the evidence to support the trial court’s order requiring him to pay $2,400 in attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted defendant of robbery (Pen. Code, § 211) and assault with a deadly weapon (§ 245, subd. (a)(1)). With respect to the robbery, the jury further found defendant personally used a deadly weapon, a metal pipe, in the commission of the offense. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) With respect to both offenses, the jury found defendant personally inflicted great bodily injury on the victim. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) In a bifurcated proceeding, defendant admitted he had a prior serious felony conviction (§§ 667, (c), (e)(1), 1170.12, subd. (c)(1)) and had previously served four prior prison terms (§ 667.5, subd. (b)). The facts of the offenses are not relevant to the issue raised on appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
As a result of the jury’s verdicts, the trial court imposed a total of 18 years in state prison. To reach the total term, the trial court imposed the upper term of five years on count 1, doubled to 10 years as a result of the strike. The trial court then added a consecutive term of one year for the use of a weapon and another three-year consecutive term for the infliction of great bodily injury. Finally, the trial court added four one-year consecutive terms under section 667.5 as a result of the prior prison terms. The sentence on count 2 was stayed pursuant to section 654.
DISCUSSION
At the end of the sentencing hearing and at the request of defense counsel, the trial court ordered defendant to pay attorney fees in the amount of $2,400 to the public defender’s office. Defendant contends this was an abuse of discretion because the trial court did not make an explicit finding based on substantial evidence that defendant had the ability to pay those fees.
Although the trial court did not state the statutory basis for ordering defendant to pay attorney fees, subdivision (b) of section 987.8 provides as follows: “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.” (Italics added.) “ ‘Ability to pay’ ” is defined in section 987.8, subdivision (g)(2), to mean “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.” This subdivision also includes a number of factors to be considered in making a determination as to whether a defendant has the “ ‘[a]bility to pay.’ ” (§ 987.8, subd. (g)(2).) In particular, subdivision (g)(2)(B) of section 987.8 states: “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.”
A finding of a present ability to pay is a “condition to an order assessing attorney fees.” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.) “[A]ny finding of ability to pay must be supported by substantial evidence. [Citations.]” (Ibid.) If there is no substantial evidence to support a defendant’s present ability to pay, an order to pay fees is erroneous as a matter of law. (People v. Nilsen (1988) 199 Cal.App.3d 344, 351.) Here, we agree with defendant and the People that the record does not show any evidence of defendant’s ability to pay attorney fees. The order to pay attorney fees is therefore erroneous and must be reversed.
DISPOSITION
The order requiring defendant to pay $2,400 in attorney fees is reversed. The matter is remanded with directions for the trial court to determine, in accordance with applicable statutes, defendant’s ability to pay any such fees. If any order directing fees or costs is entered on remand, the trial court shall state the statutory and factual basis for the order in the record. The superior court clerk is further directed to make any necessary corrections to the minutes and abstract of judgment. The judgment is affirmed in all other respects.
We concur: HOLLENHORST J., MILLER J.