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People v. Schuck

Court of Appeals of California, Third District, Butte.
Nov 4, 2003
No. C042645 (Cal. Ct. App. Nov. 4, 2003)

Opinion

C042645.

11-4-2003

THE PEOPLE, Plaintiff and Respondent, v. DALE LEE SCHUCK, Defendant and Appellant.


After the court appointed the public defender to represent him, defendant Dale Lee Schuck entered a negotiated plea of no contest to two counts of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and one count of forgery (§ 484e, subd. (d)). The remaining charges were dismissed. The court sentenced defendant to an aggregate term of three years and four months in state prison and ordered defendant to pay $400 in attorney fees.

Further undesignated statutory references are to the Penal Code.

Defendant also pled no contest to two counts of driving under the influence (Veh. Code, § 23152, subds. (a) & (b)) in unrelated cases for which he was ultimately sentenced to six months to run concurrent with his prison time.

On appeal, defendant argues that the absence of notice or a hearing before the court ordered him to pay the attorney fees violated his statutory and constitutional rights to due process and, therefore, the order must be stricken. The People agree that the trial court did not provide defendant with notice or a hearing and request the case be remanded to allow the court to make the appropriate determination. We reverse the order to pay attorney fees and remand to the superior court for the required notice and hearing on attorney fee reimbursement. (§ 987.8.)

DISCUSSION

The facts of the offenses are irrelevant to the issue on appeal.

Defendant argues and the People agree that defendant had no notice, either from the probation report, the prosecutor, the court or otherwise, and had no hearing on the matter of reimbursement to the county for attorney fees for court-appointed counsel. Defendant maintains that trial counsel was ineffective for failing to object to the attorney fee order. The People make no claim of waiver.

Section 987.8 provides in relevant part:

"(b) 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 . . . , 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."

Although the parties agree that reimbursement of attorney fees may not be ordered without notice and hearing, they disagree on the remedy appropriate in this particular case.

While this appeal was pending, the Supreme Court held that remand for notice and a hearing under section 987.8, subdivision (b), was an appropriate remedy when the trial court ordered reimbursement of attorney fees without first providing these procedural safeguards. (People v. Flores (2003) 30 Cal.4th 1059, 1068-1069.) Thus, we will reverse the judgment with respect to the order to pay attorney fees and remand the matter for the notice and hearing required by section 987.8.

Defendant contends that remand is unnecessary in this case because he was sentenced to prison. Defendant relies on section 987.8, subdivision (g)(2)(B), which provides in pertinent part: "Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense." Defendant argues that there is nothing in the record to overcome the presumption that he does not have the ability to reimburse attorney fees.

Whether defendants financial circumstances are unusual for someone sentenced to prison is not the issue on appeal, although we note that the probation report states defendant had recently received $10,000 from his fathers estate. (People v. Flores, supra, 30 Cal.4th 1059, 1069.) Because the trial court held no hearing on the matter, it made no finding as to whether defendants circumstances were unusual. The appropriate remedy is remand so that the trial court may, after conducting a hearing into the question, make an informed decision. (Id. at pp. 1068-1069.)

DISPOSITION

The order to pay attorney fees is reversed and the matter is remanded for notice and hearing under Penal Code section 987.8, subdivision (b). In all other respects, the judgment is affirmed.

We concur: DAVIS, J. RAYE, J.


Summaries of

People v. Schuck

Court of Appeals of California, Third District, Butte.
Nov 4, 2003
No. C042645 (Cal. Ct. App. Nov. 4, 2003)
Case details for

People v. Schuck

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DALE LEE SCHUCK, Defendant and…

Court:Court of Appeals of California, Third District, Butte.

Date published: Nov 4, 2003

Citations

No. C042645 (Cal. Ct. App. Nov. 4, 2003)