Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB800577, James M. Dorr, Judge.
Russell S. Babcock, 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, and Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant pled guilty to one count of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and admitted that he had suffered one prior strike conviction (§§ 667, 1170.12) and two prior prison terms (§ 667.5, subd. (b)). In return, defendant was sentenced to a total term of eight years in state prison. On appeal, defendant contends (1) the trial court erred in ordering him to reimburse the county for court-appointed attorney fees in violation of section 987.8, and (2) the trial court erred in staying the two prior prison terms rather than striking them. We agree with defendant that the court erred in ordering defendant to pay his court-appointed attorney fees and will therefore reverse that order. We also agree with the parties that the trial court’s order staying the two 1-year prior prison term enhancements constituted an unauthorized sentence and must be modified to strike the enhancements rather than stay them.
All future statutory references are to the Penal Code unless otherwise stated.
The details of defendant’s criminal conduct are not relevant to the issues he raises in this appeal and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.
A. Imposition of Court-Appointed Attorney Fees
Defendant contends that the trial court erred in ordering him to pay $150 in attorney fees for the services of his public defender without providing him adequate notice and without conducting a hearing on his ability to pay. He further claims that his counsel’s failure to object to the reimbursement order denied him effective assistance of counsel.
The People argue that defendant forfeited any claims as to the reimbursement of attorney fees and that his counsel’s failure to object did not constitute ineffective assistance of counsel. In the alternative, the People claim if the issue is not forfeited, the matter should be remanded for a hearing on the actual cost and his ability to pay.
An assessment of attorney’s fees against a criminal defendant involves the taking of property, triggering constitutional concerns. Due process, therefore, requires that the defendant be afforded notice and a hearing before such a taking occurs. (People v. Amor (1974) 12 Cal.3d 20, 29-30; People v. Phillips (1994) 25 Cal.App.4th 62, 72.)
Section 987.8 sets forth the statutory procedure for ascertaining a criminal defendant’s ability to repay the county for the cost of services rendered by court-appointed counsel. It includes provisions for notice and a hearing to determine the defendant’s present ability to pay such fees. (Id., subd. (b).)
Here, there is no evidence in the record to suggest that the trial court complied with the provisions of section 987.8, subdivision (f), by advising defendant at his arraignment that a determination of his ability to pay for the cost of counsel would be made at the conclusion of criminal proceedings, or with the provisions of section 987.8 that come into play once criminal proceedings have concluded. At no time prior to sentencing was defendant given notice that a hearing would be held to determine his ability to reimburse the county for the cost of his defense, and no portion of the sentencing hearing was dedicated to an ascertainment or discussion of defendant’s ability to pay for the cost of his defense. The court simply announced that defendant would be responsible for paying attorney’s fees. Specifically, the court stated, “$150 attorney fees also to be collected from prison earnings.” In addition, there is no probation report in this case and as such defendant had no such notice from a probation report. A one-page memorandum from the probation officer merely notes the credit for time served. Also absent from the record is any evidence as to the actual amount expended by the county on defendant’s representation. Stated otherwise, the record in this case is completely devoid of any showing of compliance with section 987.8, subdivisions (b), (d), (e), and (f).
Defendant waived the preparation of a probation report.
The People do not dispute that the trial court failed to comply fully with the procedural safeguards of section 987.8. They urge us to conclude, however, that defendant’s failure to interpose an objection below constitutes a waiver or forfeiture of his contentions on appeal. We do not agree.
Implied in the trial court’s order requiring defendant to pay attorney’s fees is a finding that defendant had the ability to pay such fees. Defendant’s assertion that the record reflects an inability on his part to pay the attorney fees is a challenge to the sufficiency of the evidence supporting the court’s implied finding. No objection is required below to preserve such a challenge for appeal. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537; accord, People Rodriguez (1998) 17 Cal.4th 253, 262.)
Additionally, as noted, due process requires at a minimum notice and a hearing before an indigent defendant can be ordered to pay the cost of his government-provided legal representation.
Some sentencing matters may be waived if not objected to below. In People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court held that “the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (Id. at p. 353.) The court has discretion to determine the defendant’s ability to pay and discretion to determine the manner of payment, but, as this court previously held, there is apparently no discretion to determine a reasonable amount of attorney fees; evidence of actual costs is required. (People v. Poindexter (1989) 210 Cal.App.3d 803, 811.) Similarly, the court has no discretion simply to dispense entirely with notice and a hearing on the issue. Accordingly, this case does not fall within the waiver rule of Scott.
The People’s reliance on People v. Whisenand (1995) 37 Cal.App.4th 1383 is misplaced. In that case, we found that, by failing to raise the issue in the trial court, the defendant had forfeited her right to argue that she did not receive notice that the reimbursement of attorney fees would be addressed at a particular proceeding. (Id. at p. 1394.) While “neither the probation report nor the sentencing hearing gave defendant any notice that the issue of reimbursement for counsel fees was pending” (id. at p. 1395), the trial court held a three-day hearing on the issue of victim restitution at which defendant’s ability to pay was addressed. (Id. at pp. 1387, 1395.) “From that hearing, the trial court drew the conclusion that she was able to reimburse the county for the costs of legal representation.” (Id. at p. 1395.) Here, defendant’s ability to pay was not the subject of any hearing.
The People’s reliance on People v. Klockman (1997) 59 Cal.App.4th 621 is also misplaced. In that case, defense counsel told the court he was willing to reduce the 55 hours he spent on the case to an order of $500 in attorney fees. Defendant expressly waived a hearing, stating that he would accept the reduction. (Id. at pp. 625, 628.) Hence, the defendant in that case, unlike here, received some form of notice.
Moreover, leaving aside the question of notice, it is evident from our Supreme Court’s decision in People v. Flores (2003) 30 Cal.4th 1059 that summarily awarding attorney fees at sentencing without conducting a hearing on the issue at that time, if there was no previous hearing on it, is inadequate. Neither party is able to point to any place in the record showing that a prior hearing on attorney fees was conducted. Thus, this case stands in the same posture as Flores, in which “[a]t sentencing, without having given him the notice or hearing required by section 987.8[, subdivision] (b), the trial court ordered defendant” to pay attorney fees. (Id. at p. 1062.)
Defendant here had no reason to expect he might be ordered to pay attorney fees, and no inquiry was made into his ability to pay. We conclude defendant had no meaningful opportunity to object to the imposition of attorney fees and thus did not forfeit his right to challenge those fees on appeal.
The question remaining is whether this is an appropriate case for remand. Defendant contends it would be a waste of judicial economy to remand for further proceedings, in that there is no evidence to suggest defendant “has the access to any funds outside whatever meager prison earnings he accumulates.” We agree.
Unlike People v. Flores, supra, 30 Cal.4th 1059 in which our Supreme Court concluded that “a showing of unusual circumstances was conceivable” because the probation report stated that the defendant possessed a substantial amount of jewelry at the time of sentencing (id. at p. 1068), there is nothing in the record suggesting that a showing of unusual circumstances is conceivable here. In fact, it appears defendant had suffered from a mental illness. The current offense occurred while he was at Patton State Hospital. Judicial economy compels us to strike the order imposing attorney’s fees.
B. Correction of the Sentence on the Two Prior Prison Terms
Defendant also contends, and the People correctly concede, that the trial court erred by staying his two prior prison term enhancements (§ 667.5, subd. (b)). We agree. Such enhancements must be imposed or stricken but may not be stayed. (People v. Jones (1993) 5 Cal.4th 1142, 1153; People v. Johnson (2002) 96 Cal.App.4th 188, 209.) Accordingly, the two prior prison term enhancements must be stricken. The abstract of judgment and the trial court’s minute order of the sentencing hearing should be corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
The plea agreement contemplated an eight-year prison term, consisting of the upper term of four years on count 1, doubled pursuant to the three strikes law. The agreement also provided that the two prior prison terms would be stayed. Defendant was sentenced in accordance with his plea agreement.
III DISPOSITION
The order directing defendant to pay attorney’s fees in the amount of $150 is reversed. The judgment is modified to strike, rather than stay, defendant’s two prior prison term enhancements. The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Director of the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: KING, J., MILLER, J.