Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC758528
Mihara, J.
On April 19, 2007, defendant George Anthony Olmos pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and admitted to the personal use of a knife in the assault (Pen. Code, §§ 667, 1192.7). Pursuant to a negotiated plea agreement, the trial court dismissed a great bodily injury enhancement (§§ 12022.7, subd. (a), 1203, subd. (e)(3)) and placed defendant on formal probation for three years. The trial court also ordered defendant to serve one year in county jail and imposed a number of fines and fees. On appeal, defendant objects to the order to pay $300 in attorney’s fees pursuant to section 987.8. He also contends that the sentencing minute order does not accurately reflect the trial court’s order relating to a probation supervision fee. We strike the attorney’s fees award and direct the trial court to amend the minute order in regard to the probation supervision fee. The modified judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise noted.
I. Background
On February 21, 2007, several men, including defendant, assaulted the victim in the front yard of the victim’s friend’s house. The victim was stabbed in his left hand and the side of his abdomen. At the time of defendant’s arrest, he had a folding knife with dried blood in his possession, as did another suspect, defendant’s brother.
Because defendant pleaded no contest, we take these brief facts from the police report, which the trial court relied upon to establish a factual basis for the plea.
Defendant pleaded no contest to the primary charge of assault with a deadly weapon and waived a full probation report. At the sentencing hearing on May 15, 2007, the trial court placed defendant on probation and noted that he was “referred to the Department of Revenue for determination of [his] ability to pay fines and fees.” After reciting the conditions of defendant’s probation, the court imposed a $220 restitution fine, a $20 court security fee, a $129.75 criminal justice fee, a “[p]robation supervision fee not to exceed $64 per month[,]” and “[a]ttorney fees [of] $300 to the Public Defender’s Office.”
Defendant filed a timely notice of appeal.
II. Discussion
Defendant contends (1) that there is insufficient evidence to support the attorney’s fees order, (2) that in imposing the fees the trial court failed to comply with the notice and hearing requirements of section 987.8, and (3) that the court erroneously imposed the order as a condition of probation. Defendant further contends that defense counsel provided ineffective assistance, and violated her ethical obligations, in relation to the attorney’s fees issue. We find insufficient evidence to support the attorney’s fees order.
The People, citing People v. Whisenand (1995) 37 Cal.App.4th 1383 (Whisenand) and People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), argue initially that because defendant failed to object to the attorney’s fees order at the sentencing hearing, he has waived his claim. This court has held, however, that “no predicate objection in the trial court” is required to challenge the sufficiency of the evidence relating to the defendant’s ability to pay attorney’s fees pursuant to section 987.8. (People v. Viray (2005) 134 Cal.App.4th 1186, 1215-1217; see also People v. Rodriguez (1998) 17 Cal.4th 253, 262 [the claim that a judgment is not supported by substantial evidence cannot be waived].) Whisenand stands for the proposition that failure to object to a fee order on the grounds of lack of notice may waive challenge on that ground, but it does not address waiver of a claim based on lack of substantial evidence. (Whisenand, at pp. 1394-1396.) Likewise, in Valtakis, the defendant’s claims were primarily procedural and did not include a separate claim that the evidence was insufficient to support the fees ordered in that case. (Valtakis, at pp. 1068-1069.) We therefore reject the People’s waiver argument as applied to defendant’s challenge to the sufficiency of the evidence, and we proceed to the merits.
An order to reimburse the county for attorney’s fees is not mandatory under section 987.8, and a determination that the defendant has the ability to pay is a prerequisite for entry of such an order. (§ 987.8, subd. (e).) Section 987.8 provides, in relevant part, that “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 through “the public defender or private counsel appointed by the court.” (§ 987.8, subd. (b).) A finding of present ability to pay may be explicit or implicit, provided it is supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) “Under the substantial evidence rule, a reviewing court will defer to a trial court’s factual findings to the extent they are supported in the record, but must exercise its independent judgment in applying the particular legal standard to the facts as found.” (People v. Butler (2003) 31 Cal.4th 1119, 1127.)
Before we consider the sufficiency of the evidence, we address the People’s alternative argument that the trial court did not actually determine defendant’s ability to pay. The People contend that because the trial court referred defendant to the Department of Revenue for a determination of his ability to pay, “[defendant’s] next step was to address the matter with an official at the county Department of Revenue who would report back to the court.” Thus, the People’s argument implies, the court did not order attorney’s fees and committed no error. We disagree with this analysis.
At the sentencing hearing, immediately after placing defendant on probation, the court noted that defendant was “referred to the Department of Revenue for a determination of [his] ability to pay fines and fees.” The court then imposed the conditions of probation and several fines and fees unrelated to section 987.8. In ordering the $300 in attorney’s fees, at the end of the hearing, the court made no mention of any qualification of the order or any future determination by the Department of Revenue. In the sentencing minute order, next to the heading “FINES/FEES: PAY TO[,]” the box for “Ref to DOR” is checked. However, the same order reflects that $300 in attorney’s fees was imposed at sentencing.
Although the court may have intended to condition the precise amount of the fee on the Department of Revenue’s subsequent determination of defendant’s ability to pay, the court did order defendant to pay a fee pursuant to section 987.8. No provision was made for the Department of Revenue to report back to the court prior to a final determination of the issue. Under section 987.8, only the court may “make a determination” regarding a defendant’s ability to pay. (See § 987.8, subd. (b).) The Department of Revenue’s role, if any, is only to inquire into the defendant’s ability to pay: “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.” (Id., italics added; cf. People v. Statum (2002) 28 Cal.4th 682, 689-690 [if the statutory language is clear and unambiguous, then the plain language of the statute establishes its meaning and the legislative intent].) As the trial court’s determination of the defendant’s ability to pay is a prerequisite to an attorney’s fees order, and we find such an order was made, we must consider whether there is sufficient evidence to support an implied finding by the court of defendant’s ability to pay.
Section 987.8 defines “‘[a]bility to pay’” as a defendant’s “overall” financial capability to pay and lists factors relevant to this determination: (1) the defendant’s “present financial position”; (2) the defendant’s “reasonably discernible future financial position” during the six months following the ability-to-pay hearing; (3) the likelihood of employment during that period; and (4) any other facts relevant to the defendant’s “financial capability.” (§ 987.8, subd. (g)(2)(A)-(D).)
Prior to the court’s order at the May 15, 2007 sentencing hearing, the court heard no evidence related to defendant’s employment or financial status. The probation officer’s abbreviated report does not include any analysis regarding defendant’s ability to pay and does not recommend attorney’s fees, but simply notes, “Attorney fees if appropriate.” There is no other evidence in the record relating to defendant’s financial resources prior to conviction, his earning ability or employment prospects, or any other aspect of his financial position or capabilities. Moreover, defendant was ordered to serve one year in county jail with 123 days credit for time served. Thus, at the time the fees were imposed, it was likely that defendant would not be released from custody, and therefore would be unable to obtain gainful employment, until almost six months from imposition of the attorney’s fees award (October 24, 2007 would have been the approximate custody release date, assuming the award of conduct credits). (See generally § 4019.) This fact points to a negative financial outlook in the six months post-hearing, and does not support a finding of defendant’s ability to pay the ordered fees. (See § 987.8, subd. (g)(2)(B)-(C).)
We conclude there was insufficient evidence before the trial court of defendant’s present ability to pay attorney’s fees. Because we so find, we do not consider defendant’s alternative arguments that the trial court’s ruling failed to satisfy the notice and hearing requirements of section 987.8, that the award was erroneously imposed as a condition of probation, and that counsel provided ineffective assistance vis-à-vis the attorney’s fees order. Due to the modest amount of fees involved, remanding this matter for further judicial proceedings is likely to result only in additional expense. In the interests of judicial efficiency and economy, we strike the order directing defendant to pay attorney’s fees.
Finally, defendant contends that the minute order does not accurately reflect the trial court’s oral order in regard to the imposition of a probation supervision fee. At the sentencing hearing, the court ordered defendant to pay a “[p]robation supervision fee not to exceed $64 per month.” The minute order states that defendant was ordered to pay $64 per month for probation supervision. The People assert that due to the court’s referral to the Department of Revenue for a determination of his ability to pay, the minute order has no impact on the actual fee defendant will pay. Even if this is correct as a practical matter, the minute order on its face is, at the least, ambiguous. Accordingly, we shall direct the trial court to modify the minute order to clarify that the probation supervision fee imposed is “not to exceed $64 per month.”
III. Disposition
The trial court is ordered to modify the May 15, 2007 minute order to reflect the imposition of a probation supervision fee “not to exceed $64 per month.” The judgment is modified to strike the attorney’s fees award. As modified, the judgment is affirmed.
WE CONCUR: Rushing, P.J., Premo, J.