Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC942117
Mihara, J.
In a negotiated disposition, defendant Jamie Saechao pleaded guilty to two counts of receiving stolen property (Pen. Code, § 496, subd. (a)), two counts of forgery (§ 470, subd. (d)), grand theft (§§ 484, 487, subd. (a)), attempted grand theft (§§ 664, 484, 487, subd. (a)), using a stolen access card (§§ 484g, subd. (a), 488), using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). The trial court suspended imposition of sentence and placed him on formal probation for three years, conditioned on his serving a nine-month jail term. The court also ordered restitution and imposed a variety of fines, fees, and penalty assessments, including $100.00 in attorney’s fees pursuant to section 987.8.
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant challenges the attorney’s fees order. We conclude there was insufficient evidence of his ability to pay those fees, and we strike the order.
I. Background
The details of defendant’s crimes are irrelevant to the issue he raises on appeal, so we need not recount them. The parties stipulated that the police reports provided a factual basis for the entry of defendant’s pleas.
At the sentencing hearing, the trial court referred defendant to the Department of Revenue for a determination of his ability to pay fines and fees and ordered “restitution in the amount of $1,706 to the named victim.” The court then stated, “A restitution fund fine of $200 plus a 10 percent administrative fee is imposed. The same amount is imposed and stayed pursuant to 1202.44 of the Penal Code. A court security fee in the amount of $180 is imposed. A criminal conviction assessment in the amount of $270 is imposed. A criminal booking fee in the amount of $129.75 is imposed to the City of San Jose. A $50 criminal laboratory fee and assessment is imposed.” “A $10 fine and assessment is imposed... pursuant to 1202.5 of the Penal Code. [¶] A $70 AIDS education fine and assessments [are] imposed. [¶] A probation supervision fee... of $64 is imposed. One hundred dollars attorney’s fees is imposed.” Defendant filed a timely notice of appeal.
II. Discussion
Defendant’s sole contention on appeal is that there was an insufficient factual basis to support the attorney’s fees order. We agree.
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 by “the public defender or private counsel appointed by the court.” (§ 987.8, subd. (b).) The determination that a defendant has the present ability to pay is a prerequisite for entry of an order that defendant pay all or part of the cost of legal assistance. (§ 987.8, subd. (e).) Only the trial court can make the determination that a defendant has the present ability to pay attorney’s fees. (See § 987.8, subd. (b).) However, “[t]he 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.” (Ibid., italics added.)
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.)
We begin with a threshold issue-the Attorney General’s contention that since the trial court “did not make a finding, express or implied, concerning defendant’s ability to pay,” but instead referred him to the Department of Revenue for that determination, defendant’s obligation remains merely contingent. “Until such a determination has been made,” the Attorney General argues, “[defendant’s] claim of error cannot be sustained and the matter is not ripe for review.” We disagree.
The Attorney General’s argument implies that the trial court did not order attorney’s fees and thus committed no error. The record does not support that analysis. At the sentencing hearing, the court referred defendant “to the Department of Revenue for a determination of his ability to pay fines and fees.” The court then ordered $1,706 in restitution to defendant’s brother, imposed a variety of fines and fees unrelated to section 987.8, and added, “One hundred dollars attorney’s fees is imposed.” No mention was made about the Department of Revenue reporting back to the court before (or for that matter, after) the trial court imposed the attorney’s fees order. The record makes it clear the court ordered defendant to pay the fee: “One hundred dollars attorney’s fees is imposed.” (Italics added.)
Defendant points out that in the sentencing minute order, a $100 fee was mistakenly noted in the space marked “P/INVEST,” and the space marked “ATTY” was left blank. Because the transcript of the sentencing hearing does not reflect the imposition of a “P/INVEST” fee, we agree with defendant that the $100 in attorney’s fees was mistakenly noted on the wrong line. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [trial court’s oral pronouncement of judgment controls]; People v. Mesa (1975) 14 Cal.3d 466, 471 [“Entering the judgment in the minutes being a clerical function (Pen. Code, § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error”].)
Under section 987.8, only the court can “make a determination” about a defendant’s ability to pay attorney’s fees. (See§ 987.8, subd. (b).) The Department of Revenue’s role is statutorily limited to “mak[ing] an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” (§ 987.8, subd. (b); 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].) We conclude that the trial court ordered defendant to pay $100 in attorney’s fees, and we reject the Attorney General’s contention that the matter is not ripe for review.
Because the trial court’s determination of a 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 was sufficient evidence to support the trial court’s implied finding that defendant had the present ability to pay those fees.
Section 987.8 defines “ ‘[a]bility to pay’ ” as a defendant’s “overall” financial capability to pay and lists factors relevant to this determination: the defendant’s (1) “present financial position”; (2) “reasonably discernible future financial position” in 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).)
The record here reflects that the sentencing court “read, considered, and reviewed” the probation report, but beyond that heard no evidence related to defendant’s assets, income, employment, or financial status before ordering him to pay $100 in attorney’s fees. The probation report does not analyze defendant’s ability to pay, nor does it recommend attorney fees; it merely notes, “[a]ttorney fees if appropriate.” What little evidence can be gleaned from the report suggests defendant lacked the present ability to pay attorney’s fees. Defendant is 21 years old. He has a drug problem. It can be inferred that he is currently unemployed, because the probation report recommends that he “shall seek and maintain gainful employment and maintain academic and/or vocational training as directed....” (Italics added.) There is no indication that he has any future employment opportunities or plans. That the court ordered him to serve nine months in the county jail as a condition of probation further limits his financial opportunities during the relevant six-month period.
Defendant waived a full probation report.
Asserting that “less than four months” remained of defendant’s jail sentence when the fine was imposed, and pointing to the probation condition that defendant shall seek and maintain gainful employment, the Attorney General argues “it is probable that [defendant’s] wages now or within the next six months are sufficient to justify an order for payment in attorney’s fees.” We disagree. There is nothing in the record to suggest defendant has any current job prospects and no reason to conclude he will find employment quickly. Moreover, a mere potential ability to pay is an insufficient basis for an attorney’s fees order. (People v. McDowell (1977) 74 Cal.App.3d 1, 5 [no “present ‘ability’ to pay” where facts reflected mere “potential” that defendant would prevail in contest for proceeds of life insurance policy].)
We conclude there was insufficient evidence of defendant’s present ability to pay $100 in attorney’s fees to support the trial court’s section 987.8 order. The order must therefore be stricken. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [fee award entirely unsupported by evidence must be stricken].)
The question of an appropriate remedy remains. Defendant urges us simply to strike the attorney’s fees order, while the Attorney General contends we should remand the matter for the trial court to make the requisite factual determination.
It was proper for the trial court to refer defendant to the Department of Revenue to determine his present ability to pay attorney’s fees. (§ 987.8, subd. (e).) That referral should have been followed by a hearing and final determination by the court. (§ 987.8, subd. (b).) Here, the trial court ordered payment of attorney’s fees without a hearing. While we could remand with directions to conduct a hearing, we conclude, in the interests of judicial economy and efficiency and in light of the minimal amount of attorney’s fees ordered, that the appropriate action is simply to strike the attorney’s fees order.
III. Disposition
We modify the order of probation by striking the provision directing defendant to pay $100 in attorney’s fees pursuant to section 987.8. As modified, the order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.