Opinion
B230150
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. PARRISH NAJARRO, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA109538)
APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed, modified and remanded.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Parrish Najarro was sentenced to more than 37 years in prison based on convictions for voluntary manslaughter, and attempted murder, as well as weapon enhancements. On appeal, he challenges the court's orders that he: (1) pay $8,447 to reimburse Los Angeles County pursuant to Penal Code section 987.8 for his appointed counsel's legal fees, contending he was denied a hearing to determine his ability to pay those fees; and (2) pay a $20 deoxyribonucleic acid ("DNA") penalty assessment pursuant to Government Code section 76104.7. The Attorney General acknowledges that appellant was not provided the required evidentiary hearing under section 987.8 and that the DNA assessment should not have been imposed. We agree.
All further statutory references will be to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of the charged crimes are not relevant to the issues on appeal and are therefore not included here.
In February 2010, appellant was charged with murder (§ 187, subd. (a); count 1), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 2), and attempted willful, deliberate, premeditated murder (§§ 664/187, subd. (a); count 3). The information further alleged as to counts 1 and 3 that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b) and personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c) and had discharged a firearm which proximately caused great bodily injury or death within the meaning of section 12022.53, subdivision (d). It was also alleged that appellant had suffered a prior serious or violent felony conviction within the meaning of section 667, and had served one prior prison term within the meaning of section 667.5. Appellant pleaded not guilty, and denied the special allegations.
The public defender's office represented appellant at trial. The jury found appellant guilty as charged in count 2. The jury also found appellant guilty of the lesser offense of voluntary manslaughter (§ 192, subd. (a)) as to count 1 and the lesser offense of assault with a firearm (§ 245, subd. (a)(2)) as to count 3. The jury further found as to counts 1 and 3 that appellant personally and intentionally used a firearm within the meaning of section 12022.5. Appellant subsequently admitted the prior conviction allegations.
The trial court sentenced appellant to a total of 37 years and eight months in prison. He was ordered to pay a fine of $200 pursuant to section 1202.4, subdivision (b), and a $200 parole revocation fine was imposed and suspended pursuant to section 1202.45. The court also ordered appellant to pay a $20 deoxyribonucleic acid ("DNA") penalty assessment pursuant to Government Code section 76104.7; a $90 court security fee pursuant to section 1465.8, subdivision (a)(1); and a $30 criminal conviction assessment pursuant to Government Code section 70373. The court further ordered appellant to pay $8,447 in attorney's fees to the public defender's office "based on the memorandum of understanding with the public defender and board of supervisors."
This appeal followed.
DISCUSSION
I. The trial court erred in ordering defendant to pay costs of defense without a hearing.
Before this court, appellant argues that the trial court erred in imposing an order that he pay $8,447 in appointed counsel costs to the public defender's office under section 987.8, without conducting a hearing on the matter. The Attorney General agrees. Further, appellant contends, and the Attorney General concedes, the trial court failed to determine that appellant had the present ability to pay the award. (§ 987.8; People v. Flores (2003) 30 Cal.4th 1059, 1068-1069.)
An assessment of attorney's fees against a criminal defendant involves the taking of property, triggering constitutional concerns. Due process, therefore, requires that the defendant be afforded notice and a hearing before such a taking occurs. (People v. Amor (1974) 12 Cal.3d 20, 29-30; People v. Phillips (1994) 25 Cal.App.4th 62, 72.)
Section 987.8 sets forth the statutory procedure for ascertaining a criminal defendant's ability to repay the county for the cost of services rendered by court- appointed counsel. It includes provisions for notice and a hearing to determine the defendant's present ability to pay such fees. (§ 987.8, subd. (b).)
Section 987.8, subdivision (b), "provides that, upon the conclusion of criminal proceedings in the trial court, the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him." (People v. Flores, supra, 30 Cal.4th at p. 1061.) As defined in section 987.8, subdivision (g)(2), "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. . . ." Subdivision (e) of the statute confirms the defendant's right to be heard in person, to present witnesses and documentary evidence and to confront any witnesses testifying about his or her ability to pay. (§ 987.8, subd. (e).) The defendant's present ability to pay may be inferred from the content and conduct of the hearing (See People v. Phillips (1994) 25 Cal.App.4th 62, 71); however, the finding of ability to pay, whether express or implied, must be supported by substantial evidence. (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.)
The failure to conduct a hearing to determine whether a defendant can pay for appointed counsel fees under section 987.8 typically requires a remand for such a hearing. (See People v. Flores, supra, 30 Cal.4th at pp. 1068-1069 [where trial court fails to conduct hearing on defendant's ability to pay under section 987.8, appellate court properly remands to allow the trial court to make an informed decision].)
Here, there is no evidence in the record that the trial court complied with the provisions of section 987.8, subdivision (b) to conduct a hearing to determine whether appellant had the present ability to pay the fees ordered. At no time prior to sentencing was appellant given notice that a hearing would be held to determine his ability to reimburse the county for the cost of his defense, and no portion of the sentencing hearing was dedicated to an ascertainment or discussion of appellant's ability to pay for the cost of his defense. The court simply announced that appellant would be responsible for paying the $8,447 in court-appointed counsel fees. In sum, the record in this case is completely devoid of any showing of compliance with section 987.8.
The question remaining for this court is whether this is an appropriate case for remand. Appellant claims that it would be a waste of judicial resources to remand for further proceedings because there is no evidence to suggest he has the ability to pay appointed counsel fees. Accordingly, he urges this court to strike the order to pay fees in the interests of judicial economy rather than remanding the matter for further proceedings.
The record below does not appear to support this contention. At the sentencing hearing, appellant's trial counsel told the court that appellant had a "good job." At trial, appellant indicated that he owned a black Cadillac and a motorcycle. Thus, there is some evidence in the record that appellant was employed and had assets at the time of his arrest.
Relying on People v. Flores, supra, 30 Cal.4th at page 1068, the Attorney General argues that the matter should be remanded to the trial court for a determination of appellant's ability to pay. As the Attorney General points out, the defendant in Flores made the same argument appellant makes to this court. The Supreme Court held that rather than speculate on the defendant's financial condition, remand was appropriate "so that the trial court may, after having conducted a hearing into the question, make an informed decision." (Id. at p. 1069 ["[d]efendant may not be able to pay the $5,000 ordered by the trial court, but he may be able to pay something, and if he can, he is obligated by the statute to do so"].)
Indeed, section 987.8 places on the trial court, not this court, the authority to initially determine whether the defendant has the present ability to pay legal fees. This court will not invade the trial court's authority by making this determination. Accordingly, we strike the order, and remand the case to the trial court to hold a hearing to determine appellant's ability to pay. (People v. Flores, supra, 30 Cal.4th at pp. 1068-1069.) If there are reasons a section 987.8 reimbursement should not be ordered, appellant will have ample opportunity to present them to the trial court.
II. DNA Penalty Assessment
Appellant contends that the trial court erred when it imposed a DNA penalty assessment under Government Code section 76104.7. The Attorney General concedes that appellant is correct and that the DNA penalty assessment should be stricken.
As appellant points out in his opening brief, the DNA assessment is also infirm for the additional reason that the court did not expressly impose it during the sentencing hearing. At sentencing, the court orally announced that appellant would "[p]rovide DNA as to Penal Code 296." Although the court did not orally impose a $20 DNA statutory fee during the hearing, the court clerk entered the $20 DNA fee in the minute order and it was included in the abstract of judgment. In general, the court's oral pronouncement of sentence controls over the minute order and abstract of judgment. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402 [striking fees entered in the clerk's minute order that were not imposed by the court during the sentencing hearing].)
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Government Code section 76104.7, subdivision (a), provides in pertinent part: "Except as otherwise provided in this section, in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of three dollars ($3) for every ten dollars ($10), . . . in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. . . ." In this case, the trial court did not impose an assessment under Government Code section 76104.6. Consequently, an assessment under Government Code section 76104.7 cannot be imposed.
Moreover, there was no fine, penalty, or forfeiture imposed that supported a DNA penalty assessment under either Government Code section 76104.6 or Government Code section 76104.7. The trial court imposed a restitution fine of $200 pursuant to section 1202.4 and a parole revocation restitution fine in the same amount pursuant to section 1202.45, a court security assessment (§ 1465.8), and a criminal conviction assessment. By its express terms, the DNA penalty assessment does not apply to any restitution fine. (Gov. Code, § 76104.7, subd. (c)(1).) In addition, the DNA penalty assessment does not apply to the court security fee imposed under section 1465.8. (See § 1465.8, subd. (b) ["The penalties authorized by Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and the state surcharge authorized by Section 1465.7, do not apply to this fee"]; see also People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.) Finally, the criminal conviction assessment for court facilities imposed under Government Code section 70373 does not carry a DNA penalty assessment. (Gov. Code, § 70373, subd. (b).) Thus, the $20 DNA penalty assessment must be stricken.
DISPOSITION
The order that appellant pay $8,447 for appointed counsel fees is vacated and the matter is remanded to the trial court to conduct proceedings to determine appellant's ability to pay appointed counsel fees in accordance with the requirements of section 987.8. The judgment is also modified to strike the $20 DNA penalty assessment under Government Code section 76104.7. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting this modification. In all other respects, the judgment is affirmed.
WOODS, Acting P. J.
We concur:
ZELON, J.
JACKSON, J.