Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 06ZF0130, Daniel Barrett McNerney, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Following a felony conviction, defendant David Joseph Scharf was ordered to reimburse the County of Orange for the costs of his court-appointed attorneys and investigators, and was ordered to pay probation costs. Before making these orders, the trial court did not make any findings of defendant’s ability to pay, as required by Penal Code sections 987.8 and 1203.1b. There is no evidence in the record supporting an inferred finding of defendant’s ability to pay, and we therefore reverse and remand the matter to the trial court to conduct a hearing and make the appropriate findings, based on the evidence adduced.
Given the very limited nature of the issues raised on appeal, we need not detail the facts underlying the crimes of which defendant was convicted.
Following a jury trial, defendant was convicted of stalking (Pen. Code, § 646.9, subd. (a)), making harassing telephone calls (id., § 653m, subd. (a)), and violation of a protective order (id., § 273.6, subd. (a)). Imposition of sentence was suspended, and defendant was placed on formal probation for five years, subject to conditions. Among defendant’s probation conditions were that he serve 95 days in jail (with credit for 85 days already served), and that he complete a 12-month residential drug treatment program, leaving the trial court with discretion to transition defendant to complete the program on an outpatient basis during the course of the year. The trial court issued a 10-year protective order prohibiting defendant from contacting the victim or her family.
As one of the conditions of probation, the trial court ordered defendant to “[p]ay the costs of probation based on the ability to pay as directed by the Probation Officer pursuant to Penal Code section 1203.1b.” The probation and sentencing report had recommended, “the Court determine the defendant has the ability to pay for [the] cost of probation services in an amount not to exceed $136.78 per month throughout the period of probation supervision, cost of jail incarceration in an amount not to exceed $21.00 per day, and cost of the felony presentence report in the amount of $2,762.17, actual amounts to be based upon the defendant’s ability to pay pursuant to Penal Code [section] 1203.1b and 1203.1c, payable at monthly rates [to be] determined by the probation officer.”
At the sentencing hearing, the trial court ordered defendant to reimburse the county for the costs of appointed counsel and investigation costs, in the amount of $8,302.40. The court allowed defendant to reimburse that amount to the county over the course of the five-year probationary period.
The reporter’s transcript identifies the amount to be reimbursed as $830.42. The probation order and sentencing hearing minute order identify the amount as $8,302.40. Defendant and the Attorney General agree the reporter’s transcript contains a typographical error, and the correct amount is $8,302.40.
Defendant timely appealed.
Discussion
I.
Reimbursement of Legal Fees
A. Forfeiture
The Attorney General initially argues defendant has forfeited the issue of reimbursement of legal fees under Penal Code section 987.8. At the sentencing hearing, the following colloquy occurred:
“The Court: [¶]... [¶] And, [defendant], as you are aware you are entitled to a hearing to determine the cost and services of court-appointed counsel on your matters prior to and up to and including the time that you assumed representation of yourself. Alternate Defend[er] Services has calculated the total cost of attorneys fees for Mr. Reed, Mr. Sheaks, Ms. Kay and investigator Willet at $[8,302.40] and your attorney, Mr. Freeberg, and you have had an opportunity to review that and you agree to reimburse the county in that amount?
“The defendant: Well, my ability to pay is the only issue.
“The Court: I understand it. It would be the court’s intention, if you are in agreement with that, to reimburse the county with that amount, that I’ll simply sign the order and allow it to be reimbursed during the period of your probation which is five years.
“The defendant: I guess that’s fine.
“[Defendant’s counsel]: I think he’s nervous, Your Honor, about whether he has the ability to pay, but I stipulate to that amount. And I agree that’s the way it should be done.”
The most that can be said, based on the foregoing, is that defendant and his counsel stipulated to the amount the county was seeking in reimbursement. We conclude there was no waiver or forfeiture on the issue of his ability to pay. The Attorney General cites numerous cases holding that a defendant may not challenge a restitution order entered into as a part of a plea bargain. Those cases are inapposite here, because the reimbursement order was not entered as a part of a plea bargain, but rather was entered by the court following a conviction after a jury trial and sentencing.
B. Standard of Review
Whether the trial court properly entered the reimbursement order is reviewed for abuse of discretion. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1393.) We consider whether substantial evidence supports the findings necessary for a reimbursement order. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1218.)
C. Analysis
Defendant argues the trial court erred in entering the reimbursement order under Penal Code section 987.8, because there was no evidence of his ability to pay. The Attorney General effectively concedes the issue. Specifically, the Attorney General does not contend there was any evidence, much less substantial evidence, supporting the trial court’s order. The respondent’s brief reads, in relevant part, as follows: “If this Court deems that [defendant] is not barred from raising issues as to any defects in notice and defects in having an opportunity for a hearing as to ability to pay; and that the trial court erred in this regard, the proper remedy is to remand the matter for a hearing so that the trial court can make an informed decision as to the full amount of legal services and [defendant]’s ability to pay.”
Accordingly, we remand the matter to the trial court to conduct a hearing on defendant’s ability to reimburse the county for court appointed legal and investigative services, in the amount of $8,302.40. (See People v. Flores (2003) 30 Cal.4th 1059, 1068-1069 [where trial court does not conduct hearing on defendant’s ability to pay under Penal Code section 987.8, appellate court properly remands to allow trial court to make “an informed decision”].)
II.
Probation Costs
Defendant also argues the trial court erred in ordering him, under Penal Code section 1203.1b, to pay the costs of probation totaling $12,963.97.
The probation costs include $2,762.17 for preparation of the felony presentence report; $8,206.80 for the cost of probation supervision, calculated as $136.78 per month for the 60-month probation period; and $1,995 for the cost of jail incarceration, calculated at $21 per day for the 95 days’ jail time ordered as a condition of probation.
The Attorney General contends the argument is premature, because there is no order requiring defendant to pay probation costs. The probation order and the sentencing minute order set as a term and condition of defendant’s probation that he “[p]ay the costs of probation based on the ability to pay as directed by the Probation Officer pursuant to Penal Code section 1203.1b.” The Attorney General contends this language required defendant to cooperate with the probation department in determining the costs of probation and defendant’s ability to pay. This argument is belied by the record: the probation report already set out the costs of probation and the amount the probation department had determined defendant had the ability to pay.
The probation report does not contain any evidence supporting a finding that defendant had the ability to pay the probation costs. (Defendant does not challenge on appeal the amount of the probation costs claimed by the probation department.) As with the reimbursement order, we reverse the order requiring defendant to pay $12,963.97 in probation costs, and remand to permit the trial court to conduct a hearing on the issue of defendant’s ability to pay.
Defendant argues the trial court erred by making the reimbursement order and the order to pay probation costs conditions of his probation. The Attorney General concedes that such orders cannot be imposed as conditions of probation. (See People v. Flores, supra, 30 Cal.4th at p. 1067, fn. 5.) On remand, we direct the trial court not to make any reimbursement order or order to pay probation costs a condition of defendant’s probation.
Disposition
The reimbursement order and order to pay probation costs are reversed, and the matter is remanded for a hearing on defendant’s ability to pay. The trial court is directed not to make any reimbursement order or order to pay probation costs a condition of defendant’s probation.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.