Opinion
C050050
12-5-2006
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL AARON MORGAN, Defendant and Appellant.
In case No. CM021544, defendant Michael Aaron Morgan pleaded no contest to three counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b) — counts 1-3); and admitted a prior prison term allegation (§ 667.5, subd. (b)). In case No. CM012492, he pleaded no contest to one count of identity theft. (§ 530.5, subd. (a) — count 1.) Defendant was sentenced to state prison for the aggregate term of six years and was ordered to pay attorney fees in the amount of $ 800.
Further undesignated section references are to the Penal Code.
Defendant requested that he be committed to the California Rehabilitation Center (CRC). The trial court initially rejected but ultimately granted his request. Defendant waived a medical examination and the parties stipulated to his addiction status. He was committed to the CRC and arrived there in November 2004.
In January 2005, CRC excluded defendant from its Civil Addict Program because of his dual commitment status as a felon and a civil addict. In April 2005, CRC referred defendant to the trial court for further proceedings on the criminal charges. CRC explained that "a person while serving a parole revocation term may not be committed to the Civil Addict Program."
In May 2005, the trial court reinstated criminal proceedings, confirmed the prison sentence, and awarded defendant 27 days of postsentence local custody credit (evidently for a period preceding his transfer to CRC) and 49 days of state custody credit (evidently for a period following his exclusion from CRC). Pursuant to People v. Bruner (1995) 9 Cal.4th 1178 (Bruner), the trial court disallowed 168 days of presentence credit for the period between May 7, 2004, and October 21, 2004, which defendant had spent in Butte County jail prior to his transfer to CRC. No one other than the court spoke at the hearing.
Thereafter, defendants appellate counsel unsuccessfully sought correction of his custody credits in the trial court.
At defendants request, we take judicial notice of the trial courts March 1, 2006, minute order denying his request for correction of presentence credits. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
On appeal, defendant contends (1) he is entitled to full credits for the time that he spent at CRC, and (2) the attorney fee order must be vacated. The People concede both points and further request correction of the abstract of judgment to reflect the number of days disallowed pursuant to Bruner. We shall vacate the attorney fee award, remand for computation of credits, and order correction of the abstract.
FACTS
The facts of defendants offenses are not at issue and need not be set forth in this opinion.
DISCUSSION
I
Defendant contends, and the People concede, that the matter must be remanded to the trial court to determine the credits that he is entitled to for the time he spent at CRC. We accept the Peoples concession.
In People v. Mitchell (2004) 118 Cal.App.4th 1145 (Mitchell ), the defendant was not eligible for a CRC commitment at the time he arrived at the CRC because of its "no-parolees-accepted policy." (Id. at p. 1149.) The trial court awarded the defendant "actual-day" custody credits for the period he was at CRC but did not award him either presentence conduct credits (§ 4019) or prison worktime credits (§ 2933). (Mitchell, supra, at p. 1147.) On appeal, the defendant argued he was entitled to both section 4019 credits and section 2933 credits. (Id. at p. 1148.) The Mitchell majority agreed with him in part and concluded he was entitled to section 2933 credits only. (Id. at pp. 1149-1150.)
The Mitchell majority explained: "In our view, ineligibility that is neither the result of the defendants postsentencing conduct nor within his control voids the commitment and triggers the defendants right to receive the same credits he would have received had he been sentenced to prison in the first instance. [Citations.] Equal protection permits no other result where, as here, there is nothing in the record to suggest Mitchell received treatment or any other benefit during any of the time he was confined at CRC. [Citation.]" (Mitchell, supra, 118 Cal.App.4th at p. 1149.) Rejecting the defendants claim to credit under both statutory schemes, the Mitchell majority stated: "Since the credit afforded by section 2933 is greater than the credit afforded by section 4019, and since Mitchell is entitled to the credit most favorable to him but not both, it follows that he is entitled to the section 2933 credits for these days, but not the section 4019 credits. [Citation.]" (Id. at p. 1150.) The cause was remanded to the trial court with directions to recalculate the defendants credits. (Ibid.)
The dissenting justice opined that the defendant had been excluded from CRC on the basis of excessive criminality, a matter within his control, pursuant to Welfare and Institutions Code section 3053, subdivision (a). (Mitchell, supra, 118 Cal.App.4th at p. 1154.) However, as in the present case, CRCs exclusion letter did not identify any such criminality or indicate whether, or why, it was perceived to be excessive. Rather, the letter relied on the blanket assertion that "a person while serving a parole revocation term, may not be committed to the Civil Addict Program." (Id. at p. 1152.) This assertion is not limited to "excessive" criminality, but plainly applies to even the slightest criminality for which parole may be imposed and revoked.
In this case, the trial court did not award defendant any custody credit or section 2933 credit for the time he was at CRC. Pursuant to Mitchell, supra, 118 Cal.App.4th 1145 and the Attorney Generals concession, the cause must be remanded to the trial court for calculation of appropriate credits.
II
As noted, the trial court disallowed defendants request for 168 days of presentence credit pursuant to Bruner, supra, 9 Cal.4th 1178, related to his confinement in the Butte County jail from May 7, 2004, until October 21, 2004. The abstract of judgment incorrectly states that defendant is not entitled to "186 days," not 168 days. This error must be corrected on the amended abstract of judgment.
III
Defendant contends, and the People concede, that the order to pay $800 in attorney fees must be vacated because the trial court failed to hold a hearing on defendants ability to pay the fee. We accept the Peoples concession.
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 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." (Italics added.)
Section 987.8, subdivision (g)(2), defines "ability to pay" as "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 defendants present financial position. [¶] (B) The defendants reasonably discernible 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 defendants reasonably discernible future financial position. 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. [¶] (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 defendants financial capability to reimburse the county for the costs of the legal assistance provided to the defendant."
A determination that the defendant has the ability to pay is a prerequisite for an attorney fee order. (§ 987.8, subd. (e).) An order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920.)
Because defendant pleaded no contest and no attorney fee hearing was held, any evidence of defendants ability to pay would have to be found in the probation report. The report lists defendants job skills as painting, construction, and general labor. He has been unemployed since 2003, because of being "in trouble." However, he had a "possible job opportunity upon release as an electricians apprentice." There was no evidence of defendants earnings at any time. His cash, personal property and real property were all listed as "$0." Thus, the probation report does not contain substantial evidence of defendants ability to pay the attorney fee award.
Moreover, defendant was sentenced to state prison. Unless the court found unusual circumstances, it could not have determined that he had a reasonably discernible future financial ability to reimburse the costs of his defense. (§ 987.8, subd. (g)(2)(B).) Based on the probation report, unusual circumstances do not seem to exist in this case.
We accept the Attorney Generals concession that a remand for further proceedings on the attorney fee award would likely be futile. Consequently, the attorney fee award must be vacated.
DISPOSITION
The attorney fee award is vacated. The cause is remanded to the trial court for a determination of defendants credits while at CRC. In all other respects, the judgment is affirmed. The amended abstract of judgment emanating from the determination of credits shall be corrected to reflect "168 days" of denied presentence credit.
We concur:
SIMS, Acting P.J.
HULL, J.