Opinion
E063240
01-12-2017
THE PEOPLE, Plaintiff and Respondent, v. DEONDRE DAVONE NEAL, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Scott C. Taylor and Tami Falkenstein Hennick, Deputy Attorneys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1101759) OPINION APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed in part and reversed in part with directions. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Scott C. Taylor and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Deondre Davone Neal, of the first degree murder of Clyde Willis (Pen. Code, § 187, subd. (a)), the voluntary manslaughter of Dahmetri Ross (§ 192, subd. (a)), and assault with a deadly weapon against Akilah Franklin and Elvie White (§ 245, subd. (a)(1)). The jury also found true that defendant personally used a deadly and dangerous weapon in the commission of the murder and voluntary manslaughter (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury on White (§ 12022.7, subd. (a)). The court sentenced defendant to prison for an aggregate term of 41 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, defendant contends his trial counsel rendered ineffective assistance for two reasons. First, he argues counsel improperly failed to object to the prosecutor's misstatements of the law in closing argument about the heat of passion defense. Second, he contends counsel should have objected when the court imposed appointed counsel fees and the costs of the probation report and investigation on him. He urges us to order the fees and costs stricken or, alternatively, to remand for a determination of his ability to pay.
We reverse the orders imposing probation costs and appointed counsel fees and remand for a hearing on defendant's ability to pay. We also direct the clerk to correct certain errors in the abstract of judgment. We affirm the judgment in all other respects.
II. FACTS
A. Prosecution Evidence
Franklin dated defendant and lived with him on and off from 2009 to 2011. Defendant was possessive and abusive, and they argued a good deal. By April 2011, Franklin believed the two had a "mutual understanding" that they were no longer a couple, but they were still exchanging telephone calls and text messages daily.
Franklin had just started dating Willis when the couple went out one night in April 2011 with White and Ross, who were also dating each other. The group went to a bar in Redlands, where defendant appeared shortly after they arrived. When defendant saw Franklin, he put his hands around her neck, choked her, and pushed her down. Willis and Ross "exchang[ed] words" with defendant and his friend, and security escorted defendant and his friend out of the bar. Franklin followed defendant outside to warn him "not to do anything." Defendant pushed her against a wall and swung at her face, grazing her cheek. Franklin ran away and met Willis, White, and Ross at their car.
The group left the bar for Franklin's apartment and arrived there at approximately 2:00 a.m. They talked for a short time about what had happened and then went to bed. Franklin and Willis took her bedroom, while White and Ross took the second bedroom. Defendant no longer had a key to Franklin's apartment, but the lock on her door was not functioning properly because defendant had forced entry through the door on a previous occasion.
Benito Ortiz was defendant's friend and was with him that night, along with three other men. Defendant and his companions left the bar and went to San Manuel Indian Bingo & Casino until approximately 2:30 a.m. Defendant was driving. Several of his companions asked to be dropped at home, and Ortiz thought they were going home, but defendant drove to Franklin's apartment complex instead. Defendant went inside her apartment alone while his four companions waited in the complex nearby.
Franklin had fallen asleep and awoke to the lights turning on and defendant yelling she "was a 'cheating bitch.'" He was four to five feet from Willis's side of the bed and pointing a gun at them, which Franklin recognized as one she had seen in defendant's possession before. They told him to stop what he was doing and leave. Defendant replied that he had something for them and left the room. He returned seconds later with a knife from Franklin's kitchen and stabbed Willis multiple times while Willis was still in the bed. Willis bent forward in pain, but he did not try to grab for anything. When Franklin tried to stop defendant, he tried to stab her as well and grazed her with the knife. Defendant exited Franklin's room, and Franklin heard White scream.
White recalled waking up when she heard Franklin screaming, "Deondre, no. Stop." White went into the hallway and saw defendant there with a bloody knife. She asked him what was going on, and he responded by swinging the knife at her and, when she raised her hand to block it, cutting her hand. He also punched her in the eye and said, "shut up, bitch." Ross then emerged from the bedroom and scuffled with defendant as he tried to take the knife away from defendant. Defendant positioned himself behind Ross and stabbed him in the neck. Franklin ran out of her bedroom and found Ross on the floor with "his neck . . . open" and bleeding. Defendant was at the door pacing and ran out when Franklin told him to leave.
Ortiz and the others heard screams coming from the apartment and ran to defendant's car. Defendant emerged from the apartment carrying a knife. He drove off and stopped to throw the bloody knife out of the car. In the car, defendant said, "Man, I fucked up," and "I killed that man." He dropped three of his companions on a street around the corner from Franklin's apartment and drove Ortiz home from there.
Franklin had known Willis and Ross for roughly one month and had never known them to have a gun during that time. White had known them both since high school and had never known either of them to have a gun. Police investigators did not find a gun in Franklin's apartment, although they found four .25-caliber cartridges in Franklin's bedroom, three on the floor and one on the bed.
According to the autopsy findings, Ross suffered a long incised wound on his scalp that went down to the bone; a deep incised wound across the front of his neck that went all the way to his spine and severed his muscles, trachea, gullet, carotid artery, and jugular veins; and minor wounds on his nose, lip, and shoulder. The neck wound caused his death.
According to the autopsy findings, Willis suffered a stab wound in the back of his neck that went through the muscles on the side of his neck and ended in the back of his mouth; two stab wounds around his shoulder blade that went into his right lung; a stab wound just below his shoulder blade that went into his liver; and a stab wound in his armpit that went through his right lung and severed his aorta. The deepest stab wound was approximately nine to 10 inches deep. These multiple wounds and the extensive internal bleeding from these wounds caused Willis's death. B. Defense Evidence
Defendant testified in his own defense. According to him, he and Franklin were a couple at the time of these events. As far as he knew, there was no mutual agreement to end the relationship. For approximately three days leading up to the stabbings, they did not see each other, but they were communicating through text messages and telephone calls.
Defendant tried to invite Franklin to the bar that night, but she did not answer his telephone call. He ran into her at the bar and asked her what was going on. They argued and agreed to go outside to talk. Willis then "jumped in [his] face" and argued with him, and security told them to leave. Outside, they argued again and pushed each other. Franklin's group emerged from the club and Franklin pleaded with Willis not to fight with defendant. White did the same with Ross. Franklin, Willis, White, and Ross got into their car, and as they drove past defendant, the car slowed down and someone put their hand out of the window. Defendant ducked, even though he did not see anything in the hand.
Defendant and his companions left the bar and went to the casino until approximately 2:00 a.m. While there, defendant talked to another friend, who invited them to her house. He accepted the invitation but said he wanted to get some personal belongings and meet at her house later. He drove his group to the home of his children's mother, where he collected some belongings while his companions stayed in the car.
He drove next to Franklin's apartment. He wanted to talk with her to "see if everything was fine" and to pick up more belongings. While defendant was angry when he saw Franklin at the bar, he was not angry at this point. He did not have a gun. He had a key to the apartment but did not use it because the door was ajar when he arrived.
He went to Franklin's bedroom and turned on the lights, and Willis jumped up and started arguing with him. Willis started reaching towards his pillow. Defendant became scared, left the room, and grabbed "[t]he first thing" he saw—a knife on the table. He went back to the bedroom and Willis was "moving the cover . . . grabbing something." Defendant hit him and heard something heavy fall and hit the headboard. He stabbed Willis next, "thinking that whatever [Willis] had could have harmed" him.
Defendant was scared and nervous after that and did not realize White was in the apartment. She came out of the second bedroom and scared him further. He hit her to clear his way as he tried to leave. Ross followed and grabbed him at the door as he was going out. They started swinging at and hitting each other. Defendant did not realize he had cut Ross. He ran out of the apartment, scared, nervous, and feeling like he "had been set up."
III. DISCUSSION
A. The Prosecutor's Misstatements About the Heat of Passion
Defendant contends the prosecutor committed misconduct during closing argument when he misstated the law regarding a heat of passion killing. The failure to object to prosecutorial misconduct and request a curative admonition forfeits the claim on appeal. (People v. Hill (1998) 17 Cal.4th 800, 820.) Although defense counsel failed to object below and forfeited defendant's claim of prosecutorial misconduct, defendant urges us to review his claim on the merits because counsel's omission amounted to ineffective assistance. We review the merits of defendant's prosecutorial misconduct argument, but find no ineffective assistance of counsel requiring reversal.
1. Relevant Background
In his closing argument, the prosecutor argued against a heat of passion defense as follows: "Now, let's talk about another possible defense, what they call a heat-of-passion defense. That requires an explanation of what that is first. The definition of it is—there's a number of things here: [¶] Sufficient provocation by a victim that a reasonable person would do the same in the same circumstances. And if there's an important term in that phrase, there's—the important terms would be provocation and reasonable person. And this would make the killing from a murder into a manslaughter. It would negate that malice that we talked about. [¶] But what's important about heat of passion is reasonable person standard. . . . [¶] And the provocation has to be sufficient. It just can't be like a little bit of provocation. It has to be sufficient provocation causing a reasonable person—see, there's that word again, reasonable. A reasonable person in the same circumstances. [¶] So it's not enough that, well, the defendant is thinking this and the defendant is thinking that. It has to be what a reasonable person. It's an objective standard, not a subjective standard."
The prosecutor returned to the reasonableness standard a short time later: "A couple [of] other things: Remember we're talking about a reasonable person. And his whole actions weren't reasonable here, especially in just showing up at the apartment. [¶] Someone you have an argument with who you're on the outs with and you have not been staying at her house for a couple days, showing up there at 2:00 a.m. with your friends, a couple of people who she didn't even know, his cousins from [Los Angeles], and then breaking into the apartment—remember, he didn't have a key—not turning on the lights. Nothing about his actions here were reasonable. And it's very important for this defense for reasonableness, and it's not what we have here."
In her closing argument, defense counsel argued defendant killed Willis in self-defense because Willis had a gun, or at least defendant thought he had a gun. Alternatively, she argued he killed in the heat of passion, reducing the killing to voluntary manslaughter.
Among other instructions, the court properly instructed the jury with CALCRIM No. 570 on the heat of passion reducing murder to voluntary manslaughter.
2. Defendant Has Not Established Ineffective Assistance of Counsel
"To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both [1] that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and [2] that counsel's deficient performance resulted in prejudice to defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" (People v. Kipp (1998) 18 Cal.4th 349, 366.) Defendant fails to establish both deficient performance and prejudice.
(a) Deficient Performance
It is misconduct for the prosecutor to misstate the applicable law, even if the misstatement was unintentional. (People v. Boyette (2002) 29 Cal.4th 381, 435; People v. Hill, supra, 17 Cal.4th at pp. 822-823.) The pertinent law here deals with the heat of passion and voluntary manslaughter.
Murder requires a mental state constituting either express or implied malice. (People v. Beltran (2013) 56 Cal.4th 935, 942.) "Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." (Ibid., fn. omitted; accord, § 192, subd. (a).) It "arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.'" (People v. Barton (1995) 12 Cal.4th 186, 201.)
The standard focuses on whether a reasonable person would react rashly and without deliberation—not whether a reasonable person would be moved to kill. (People v. Beltran, supra, 56 Cal.4th at p. 949.) "The proper focus is placed on the defendant's state of mind, not on his particular act. To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. . . . Framed another way, provocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured." (Ibid.)
People v. Najera (2006) 138 Cal.App.4th 212 is instructive. In that case, the court concluded the prosecutor misstated the law in closing argument when the prosecutor focused on the defendant's actions in response to provocation. (Id. at pp. 223-224.) For instance, the prosecutor argued: "'Would a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody? That's the standard.'" (Id. at p. 223.) And in rebuttal, the prosecutor stated: "'[T]he reasonable, prudent person standard . . . [is] based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that's not a reasonable person standard.'" (Ibid.) The court determined the prosecutor's statements were wrong because the focus should be "on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Ibid.)
Here, the prosecutor similarly misstated the law when he argued the jury should focus on whether "a reasonable person would do the same in the same circumstances." (Italics added.) The prosecutor further suggested defendant's actions in response to the provocation of seeing Franklin and Willis together—going to Franklin's apartment—had to be objectively reasonable. But the pertinent question was whether a reasonable person would react rashly and without reflection, not whether defendant's specific actions were those of a reasonable person.
As we have discussed, defense counsel did not object to this misstatement of the law. We "defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) On direct appeal, we will reverse on the ground of inadequate counsel only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (Id. at p. 437.) Counsel's failure to object rarely establishes incompetent representation because deciding whether to object is inherently tactical. (People v. Huggins (2006) 38 Cal.4th 175, 252; People v. Hillhouse (2002) 27 Cal.4th 469, 502; People v. Ghent (1987) 43 Cal.3d 739, 772-773.) Several of our high court's decisions have recognized that not objecting may very well be a tactical decision because an objection will focus a jury's attention on evidence or arguments "in ways that would not be helpful to the defense." (People v. Harris (2008) 43 Cal.4th 1269, 1290; accord, People v. Huggins, supra, at p. 253; People v. Ghent, supra, at p. 773 ["Counsel may well have tactically assumed that an objection or request for admonition would simply draw closer attention to the prosecutor's isolated comments."].)
Defendant contends there could be no rational tactical reason for defense counsel's failure to object. The People argue several reasons could have justified the omission—defense counsel may have believed the jury instructions adequately addressed any misstatement, or counsel may have believed an objection would have drawn more attention to the prosecutor's remarks. We agree with the People that a desire to de-emphasize the prosecutor's comments offered a rational tactical purpose for not objecting, especially when the objectionable comments were brief and isolated relative to the whole of the closing argument. Tactically, defense counsel may not have wanted to highlight the heat of passion theory more than necessary. Defendant's version of events supported his self-defense theory and undermined the heat of passion theory; he stated he was not angry when he went to Franklin's apartment and emphasized that he was scared and nervous that Willis had a gun, not that he was provoked and suffered an intense emotional reaction obscuring his reason.
(b) Prejudice
But even if we assume defense counsel had no valid tactical purpose for failing to object, and her performance was therefore deficient, defendant has not demonstrated her purportedly deficient performance resulted in prejudice.
The standard of prejudice in this context is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694.) In determining prejudice, we "presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law" (ibid.), and we presume juries follow the instructions trial courts give them (People v. Boyette, supra, 29 Cal.4th at p. 436).
In this case, defendant suffered no prejudice because it was not reasonably probable the jury would have convicted him of the voluntary manslaughter of Willis, as opposed to first degree murder, had counsel objected. Notwithstanding counsel's passing misstatement of the law, after closing arguments, the court properly instructed the jurors on the heat of passion, telling them, in pertinent part: "The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] One. The defendant was provoked; [¶] Two. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] And three. The provocation would have caused a person of average disposition to act rashly or without due deliberation, that is, from passion rather than from judgment. [¶] . . . [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570.) At the beginning of the instructions, the court also instructed the jurors that they had to follow the law as the court explained it, particularly if the attorney's comments conflicted with the instructions, and we presume the jurors did so. (CALCRIM No. 200.)
Accordingly, any misstatement by the prosecutor and subsequent failure to object was cured by the court's proper instructions on the law and its directive to follow the instructions. An objection at the time of the prosecutor's misstatement might have resulted in an admonition to the jury that it should follow the instructions the court gives it, not the statements of counsel, and perhaps in the court giving a brief statement of the correct standard. In other words, an admonition would have achieved only what the court's instructions, given just after closing arguments, achieved.
Defendant finds evidence of prejudice in the jury's deliberations over the course of five and a half days and its several questions relating to the killing of Willis. Specifically, the jury asked to see the text messages Franklin and defendant exchanged in the days leading up to the killing, to see Franklin's "testimony . . . regarding the initial assault in her bedroom," and for "additional information regarding the requirements for second degree murder." The court responded to the question about second degree murder by referring the jurors to CALCRIM Nos. 520 and 522. CALCRIM No. 520 defined the elements of murder with malice aforethought and instructed the jury that, if it found defendant committed murder, the murder was of the second degree, unless the People had proven first degree murder beyond a reasonable doubt. CALCRIM No. 522 instructed the jurors on provocation as it affects the degree of murder. It stated: "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter."
Regardless of the length of the jury's deliberations on the multiple counts relating to multiple victims, or its questions, the jury's verdict of first degree murder convinces us defendant suffered no prejudice. The jury decided defendant acted willfully, deliberately, and with premeditation in killing Willis. In addition to the court's proper instructions on the heat of passion, in the course of instructing the jury on first degree murder, the court stated that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated." (CALCRIM No. 521.) In finding defendant guilty of premeditation and deliberation beyond a reasonable doubt, the jury necessarily determined defendant did not kill Willis "rashly, impulsively, or without careful consideration," regardless of whether a reasonable person would have reacted rashly and without deliberation in the same situation.
This means the jury found against defendant on the second essential element of voluntary manslaughter—whether defendant acted rashly and under the influence of an intense emotion obscuring his reasoning or judgment. (CALCRIM No. 570.) The prosecutor's misstatement of the law related to the third element—whether a person of average disposition would have reacted in the same way. (CALCRIM No. 570.) Thus, even if the jury was operating with the prosecutor's misstatement in mind, the jury would have still rejected the voluntary manslaughter theory, because it did not believe defendant actually acted rashly in killing Willis. There was no reasonable probability of a different result, absent defense counsel's error. B. Appointed Counsel Fees and Costs of the Probation Report and Investigation
Defendant next contends his counsel was ineffective for failing to object at the sentencing hearing when the court imposed $750 in appointed counsel fees and $665 for the costs of the probation report and investigation. We agree and order a limited remand to assess defendant's ability to pay these fees and costs.
1. Relevant Background
The probation officer's report indicated defendant had no job, no income, and no assets. The report nevertheless recommended that the court find defendant had the present ability to pay appointed counsel fees of $750 and $665 in probation costs. The court imposed both at the sentencing hearing, consistent with the probation officer's recommendation, but made no express finding of defendant's ability to pay. Defense counsel did not object to the imposition of either the appointed counsel fees or the probation costs. The court also ordered defendant to pay a victim restitution fine of $3,000 and restitution to the Victim's Compensation Board of $13,228.15.
2. The Imposition of Probation Costs
Preliminarily, defendant recognizes that the failure to object to the probation costs "may have forfeited the issue." The forfeiture rule does, indeed, apply to a defendant's failure to challenge the court's imposition of probation costs. (People v. Trujillo (2015) 60 Cal.4th 850, 858.) Because defendant asserts the omission amounted to ineffective assistance, we review the merits of the challenge.
Section 1203.1b governs the imposition of probation costs on defendant. In pertinent part, it provides the probation officer shall determine the ability of the defendant to pay all or a portion of the reasonable cost of investigating and preparing the presentence probation report, taking into account any fines, assessments, and restitution the defendant must also pay. (§ 1203.1b, subd. (a).) The court orders the defendant to appear before the probation officer to inquire into the ability of the defendant to pay these costs. (Ibid.) "The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount." (Ibid.) The defendant must knowingly and intelligently waive the right to a court hearing on the issue, otherwise the probation officer must refer the matter to the court for the scheduling of a hearing, at which the court will determine the defendant's ability to pay. (§ 1203.1b, subds. (a)-(b).)
Here, there is no indication in the record that defendant waived his right to a hearing on his ability to pay, and the court did not hold such a hearing. Despite defendant's lack of a job, income, or assets, defense counsel did not object to the imposition of probation costs or argue the court should determine his ability to pay. In addition to the substantial amount of restitution the court ordered defendant to pay, it also ordered him to pay probation costs. Under these circumstances, we can see no rational tactical purpose for failing to object or request an ability-to-pay hearing. Defense counsel's performance was deficient in this regard.
Section 1203.1b entitles the defendant to certain procedural protections at the hearing, including "the opportunity to be heard in person, to present witnesses and other documentary evidence, . . . to confront and cross-examine adverse witnesses, . . . to disclosure of the evidence against the defendant, and a written statement of the findings of the court or the probation officer . . . ." (§ 1203.1b, subd. (b)(1).)
As to the second prong of the ineffective assistance of counsel claim, there is a reasonable probability that, but for defense counsel's omission, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.) Defense counsel's assertion of the right to a hearing would have resulted in the court hearing the matter. (§ 1203.1b, subd. (b).) According to section 1203.1b, in determining the defendants' ability to pay, the court should consider the defendants' current financial position, their reasonably discernible future financial position up to one year from the date of the hearing, the likelihood the defendants will be able to find a job within one year from the date of the hearing, and any other factors bearing on the defendants' financial capability. (§ 1203.1b, subd. (e)(1)-(4).) It seems reasonably probable the court would have determined defendant did not have the ability to pay, given his total lack of current financial means, likely lack of future financial means one year into his lengthy prison term, and the large restitution payment for which he was also responsible. Based on defense counsel's ineffective assistance on this issue, we shall remand the matter for the court to conduct a hearing on defendant's ability to pay the probation costs.
The People argue defendant has not established prejudice because he "is not wholly without recourse" for defense counsel's failure to object. The People rely on subdivision (f) of section 1203.1b, which permits a defendant "during the pendency of the judgment" to petition the court "to modify or vacate its previous judgment on the grounds of a change of circumstances with regard to the defendant's ability to pay the judgment." The People argue defendant's discovery of defense counsel's failure to advise him about the ability-to-pay hearing and the waiver requirement may constitute a "change of circumstances" supporting such a petition. (People v. Trujillo, supra, 60 Cal.4th at pp. 860-861 [a defendant who has forfeited the issue of ability to pay probation costs has recourse through a postsentencing petition for a hearing based on change of circumstances].) The People do not deny section 1203.1b entitled defendant to a hearing on his ability to pay in the absence of his waiver. Yet the People urge us to affirm the judgment and compel defendant to secure a hearing by petitioning the trial court. Our reversal and remand will achieve the same ends and expend fewer judicial resources in the process. We see no reason to delay the ability-to-pay hearing further.
3. The Imposition of Appointed Counsel Fees
As to the threshold matter, defendant argues the forfeiture rule should not apply to counsel's failure to object to appointed counsel fees because the omission "raised the specter of a conflict of interest." In People v. Aguilar (2015) 60 Cal.4th 862, 864, 867 and 868, our Supreme Court held the failure to object to the imposition of appointed counsel fees forfeits the issue on appeal. But the court expressly declined to decide whether the issue was 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.) At least one appellate court has held that a forfeiture cannot "be predicated on the failure of a[n] [appointed] trial attorney to challenge an order concerning his own fees" because "[i]t seems obvious . . . that when a defendant's attorney stands before the court asking for an order taking money from the client and giving it to the attorney's employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel's omissions to the client." (People v. Viray (2005) 134 Cal.App.4th 1186, 1215.)
We need not decide whether a conflict of interest precludes forfeiture of the issue. Regardless of the forfeiture rule, defendant argues in the alternative that counsel was ineffective for failing to object, and we consider the merits of the claim in this context.
Before the court may impose attorney fees, defendants represented by the public defender or private appointed counsel are entitled to a noticed hearing to determine their "present ability" to pay all or a portion of the appointed counsel fees. (§ 987.8, subd. (b); People v. Prescott (2013) 213 Cal.App.4th 1473, 1476.) Defendant did not receive the noticed hearing on the issue to which he was entitled. Counsel was therefore deficient for failing to request it.
As with probation costs, counsel's omission prejudiced defendant. The factors courts should consider in determining the defendants' ability to pay are similar to the factors considered with respect to probation costs: (1) the defendants' present financial position; (2) their reasonably discernible future financial position up to six months from the hearing, except that the defendants sentenced to state prison shall be determined to have no future financial ability to pay fees, absent unusual circumstances; (3) the likelihood that the defendants will be able to find a job within six months of the hearing; and (4) any other factors bearing on the defendants' financial ability to pay fees. (§ 987.8, subd. (g)(2)(A)-(D).) In light of defendant's lack of financial resources and his lengthy prison sentence, which carries a presumption that he does not have the ability to pay defense fees (People v. Prescott, supra, 213 Cal.App.4th at p. 1476), it is reasonably probable the court would have found him unable to pay the appointed counsel fees.
Defendant urges us to strike the appointed counsel fees order, but the preferred solution when a court fails to hold the required ability-to-pay hearing and make the necessary finding is to remand the case for a hearing on the matter. (People v. Prescott, supra, 213 Cal.App.4th at p. 1476.) This is especially appropriate here, where we are already remanding for a hearing on defendant's ability to pay probation costs. We will direct the trial court to consider the appointed counsel fees as well.
The People assert there was also no prejudice to defendant on the issue of the appointed counsel fees because, like probation costs, defendant has recourse through a postsentencing petition for a hearing on the issue based on a change in circumstances. (§ 987.8, subd. (h) ["At any time during the pendency of the judgment rendered according to the terms of this section, a defendant against whom a judgment has been rendered may petition the rendering court to modify or vacate its previous judgment on the grounds of a change in circumstances with regard to the defendant's ability to pay the judgment."].) We reject this argument for the same reasons explained in part III.B.2. C. The Abstract of Judgment
Defendant's total sentence consisted of an indeterminate term of 25 years to life for first degree murder, one year for the weapon enhancement on that count, and a remaining determinate term of 15 years for the remaining counts and enhancements.
The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect. (§ 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accuracy is essential in this document, and we have the authority to correct clerical errors in it at any time. (People v. Mitchell, supra, at pp.185-187.)
The clerk prepared the abstract of judgment in this case on a single form, Judicial Council form CR-290 (rev. July 1, 2009), which includes both the indeterminate and the determinate terms imposed. Additionally, the abstract indicates the enhancement on count 6 for personally inflicting great bodily injury on White was a term of zero years.
The abstract is in error. The indeterminate sentence and the one-year enhancement on the first degree murder count should have been entered on the appropriate abstract of judgment form, CR-292, while the determinate term only should have been entered on form CR-290. Also, the form for the determinate term should reflect a one-year term for the great bodily injury enhancement (§ 12022.7, subd. (a)) on count 6, consistent with the court's oral pronouncement. We shall direct the clerk to amend the abstract of judgment as follows: Judicial Council form CR-292 is to be used for count 1, for which the court imposed the term of 25 years to life plus an enhancement of one year pursuant to section 12022, subdivision (b)(1). The terms for the remaining counts, which are determinate terms, are to be entered on Judicial Council form CR-290 as follows: a term of 11 years on count 2 plus an enhancement of one year pursuant to section 12022, subdivision (b)(1); a term of one year on count 5; and a term of one year on count 6 plus an enhancement of one year pursuant to section 12022.7, subdivision (a).
IV. DISPOSITION
The judgment is reversed as to the $750 appointed counsel fees order and the $665 probation costs order. On remand, the court shall hold a hearing on defendant's ability to pay these fees and costs. Additionally, the clerk is directed to amend the abstract of judgment to use the appropriate Judicial Council form CR-292 for the indeterminate term on count 1 and the enhancement on count 1, and use a separate Judicial Council form CR-290 for the remaining determinate portion of the sentence, including the one-year enhancement on count 6, as set forth in part III.C of this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: HOLLENHORST
J. McKINSTER
J.