Opinion
H032509
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JOSEPH RAEL, Defendant and Appellant.
Not to be Published
STATEMENT OF THE CASE
Under a negotiated agreement, defendant Matthew Joseph Rael pleaded no contest to second degree robbery, and the trial court suspended imposition of sentence, granted probation on condition defendant serve 10 months in jail, imposed various fines, and ordered him to pay $300 to reimburse the county for the services of his public defender. (Pen. Code, § 987.8.) On appeal from the judgment, defendant claims the court erred in ordering reimbursement without a prior determination of his ability to pay.
We agree and remand the matter for such a determination.
FACTUAL AND PROCEDURAL BACKGROUND
On October 10, 2007, defendant and codefendant Allen Wilks robbed a teenager at knife point, taking his money, cell phone, and backpack. They fled but were found nearby and arrested.
Defendant initially pleaded not guilty to charges of second degree robbery but later changed his plea with the understanding that he would not receive a prison term. Before defendant changed his plea, the court informed him that, as a consequence, he would have to pay restitution to the victim and various fines, fees, and penalty assessments. At sentencing, the court ordered defendant to report to the "probation department, the department of revenue immediately upon his release." The court also ordered him to pay $5,200 in restitution and imposed fines and fees, including attorney fees "not to exceed 300 dollars actually under 987.8 of the Penal Code." The abstract of judgment reflects an order to pay $300.
DISCUSSION
Section 987.8 subdivision (b) provides, "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."
The plain meaning of the statute authorizes the court to order a criminal defendant to pay all or part of the cost of his or her appointed counsel after the trial court, or a designated county officer, has determined that the defendant has a present ability to pay. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) Without prior notice and a hearing to determine a defendants ability to pay, it is error to order payment of attorney fees under section 987.8 subdivision (b), and such an order is invalid. (People v. Flores (2003) 30 Cal.4th 1059, 1061, 1068; People v. Turner (1993) 15 Cal.App.4th 1690, 1695, overruled on other grounds in People v. Flores, supra, 30 Cal.4th at pp. 1067-1068.)
The Attorney General claims that the court did not make a final order to pay attorney fees. Rather, in directing defendant to report to the Department of Revenue and ordering him to pay "attorneys fees not to exceed $300[,]" the court made a conditional order under section 987.8, subdivision (b) subject to a determination by the department of revenue—i.e., a county officer—of his ability to pay. (See People v. Lopez, supra, 129 Cal.App.4th at p. 1536, fn. 18.) Thus, the Attorney General argues that the appeal should be dismissed.
As noted, the abstract of judgment shows an order for defendant to pay $300 in attorney fees. The Attorney General does not claim that defendant is not subject to an order to pay that amount, and we presume that, in seeking a hearing on his ability to pay, defendant is subject to such an order. Moreover, notwithstanding the referral to the Department of Revenue, the record does not show that either the court or the department conducted an inquiry into defendants ability to pay. Under the circumstances, therefore, we conclude that the fee order is invalid.
The Attorney General concedes that if it was error to order reimbursement, the matter must be remanded for an ability-to-pay hearing.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with instructions to vacate its previous order that directed defendant to pay $300 in attorney fees and to conduct further proceedings consistent with section 987.8 and enter a new judgment. The remainder of the existing judgment is unaffected by this decision.
We Concur:
MIHARA, J.
McADAMS, J. --------------- Notes: All further unspecified statutory references are to the Penal Code.