Opinion
D048112
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. TONY K. REDMAN, Defendant and Appellant.
Tony K. Redman entered a negotiated guilty plea to selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and admitted a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668). The court sentenced him to a stipulated term of six years in prison: double the three-year lower term for selling a controlled substance with a prior strike and ordered him to pay $570 for appointed counsel fees. Redman contends the trial court erred in ordering him to pay for appointed counsel fees absent notice or a hearing on that issue.
DISCUSSION
The People concede, as they must, that the trial court erred in ordering Redman to pay for appointed counsel fees without providing him with notice or a hearing on his present ability to do so. (See Pen. Code, § 987.8, subd. (b); People v. Flores (2003) 30 Cal.4th 1059, 1068.) The only issue the parties disagree on is whether we should remanded for determination of Redmans present ability to pay for all or part of the attorney representation fees or strike the order because the costs of remand will exceed the amount ordered to be reimbursed. As the People point out, the defendant in People v. Flores, supra, made the same argument. (Id. at p. 1068.) The Supreme Court held that rather than speculate on the defendants 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.)
Redman agues that People v. Flores, supra, Cal.4th 1059 is distinguishable on the remand issue because the trial court there ordered the defendant to pay $5,000 in attorney fees, the defendant owned $1,500 worth of jewelry when sentenced, and the defendant had been regularly employed before the crime. However, Penal Code 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 attorney fees. We will not invade the trial courts authority by making this determination absent a trial courts determination.
DISPOSITION
The conviction and sentence are affirmed but for the order that Redman pay $570 for appointed counsel fees. That order is reversed and the matter is remanded for a determination on Redmans present ability to pay all or part of the amount.
We Concur:
BENKE, Acting P. J.
McDONALD, J. --------------- Notes: Because Redman raises an issue unrelated to the facts underlying the conviction we need not recite the facts.