Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F117
NICHOLSON, J.
Defendant Paul Noah Spohn pleaded no contest to a felony count of receiving stolen property (Pen. Code, § 496, subd. (a)), and he admitted a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced defendant to state prison for a total of three years: the middle term of two years on the stolen property count and an additional year for the special allegation. The court also ordered defendant to pay $2,500 in public defender fees.
Further undesignated references to sections are to the Penal Code.
Other counts alleged against him were dismissed pursuant to a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.)
Defendant appeals following the trial court’s issuance of a certificate of probable cause. He claims the trial court denied him his due process right to speak at sentencing, and it imposed attorney fees without providing a statutorily required hearing. He also asserts the abstract of judgment incorrectly states the day of sentencing and needs correction. We conclude defendant was not denied due process at sentencing. However, the trial court conducted an inadequate hearing on the attorney fee issue. We remand to allow the trial court to conduct a proper hearing. We also order the abstract of judgment to be corrected.
I
Right to Speak at Sentencing
Defendant claims the trial court prejudicially denied him a due process right to speak at his sentencing when the court refused to allow him to speak a second time. We disagree.
A. Additional background information
At sentencing, defendant’s attorney argued for the lower term, and then he advised that defendant wanted to address the court on the same issue. The prosecutor said he would comment after defendant spoke. The court allowed defendant to speak.
Defendant began by disputing the veracity of facts underlying earlier arrests and convictions, particularly the claim that he fired a weapon in 1998. The trial court interrupted defendant and asked him to confine his remarks to this case. Defendant said he understood the court, and he acknowledged that everything his attorney had told the court was correct. But then he disputed the probation report’s reliance on past conduct he claimed never occurred. The court again asked defendant to confine his statements to the case.
Defendant remarked that he could not state his position on sentencing any better than his counsel had. However, he said the only reason the court would even impose a 16-month sentence was because of his past record, and that record was not true. He also asserted he was not receiving proper representation.
For the third time, the court asked defendant to limit his comments to this case. In response, defendant said he did not have much else to say. He agreed with what his attorney had said, and he regretted what had happened.
With the court’s permission, the prosecutor spoke next. He argued in favor of the probation department’s recommendation of the high term, and then submitted the matter. Following the prosecutor’s remarks, the court stated it would proceed with sentencing. However, defense counsel asked to make a couple of comments in response, which he did. Defense counsel also submitted the matter.
Defendant then asked if he could “say one thing real quick . . . .” The court said, “No, you may not . . . . I’m proceeding with sentencing.”
B. Analysis
Defendant asserts the court’s refusal to let him speak a second time denied him a due process right to allocution at sentencing, or the right to personally address the court. We disagree.
“In legal parlance, the term ‘allocution’ has traditionally meant the trial court’s inquiry of a defendant as to whether there is any reason why judgment should not be pronounced. (People v. Cross (1963) 213 Cal.App.2d 678, 681; Barrett, Allocution (1944) 9 Mo.L.Rev. 115, 115-116; Black’s Law Dict. (5th ed. 1979) p. 70.) In recent years, however, the word ‘allocution’ has often been used for a mitigating statement made by a defendant in response to the court’s inquiry. (Black’s Law Dict. (8th ed. 2004) p. 83.)” (People v. Evans (2008) 44 Cal.4th 590, 592, fn. 2, italics in original (Evans).)
State statutes govern allocution in both of its meanings. Section 1200 addresses the traditional type of allocution. Section 1200 requires a court, when a convicted defendant appears before it for judgment, to ask “whether he has any legal cause to show why judgment should not be pronounced against him.” This inquiry, however, does not authorize defendant to make a statement for a lesser sentence. “[A] mitigating statement by defendant is not ‘legal cause to show why judgment should not be pronounced,’ and thus does not come within the plain meaning of section 1200. Thus, section 1200 does not entitle the defendant, in response to the trial court’s allocution, to offer a personal statement in mitigation of punishment.” (Evans, supra, 44 Cal.4th at p. 597, fn. omitted.)
Section 1204 governs allocution as a mitigating statement made by the defendant. Under section 1204, a defendant may make a mitigating statement under certain restrictions. The statute requires the circumstances of mitigation to “be presented by the testimony of witnesses [including defendant] in open court[.]” (§ 1204.) “By stating in section 1204 that mitigating evidence must be presented through ‘the testimony of witnesses examined in open court’ rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.” (Evans, supra, 44 Cal.4th at p. 598.)
However, a trial court in its discretion may choose a more informal method. “[A] trial court that prefers to proceed more informally may, with the parties’ consent, choose not to have the defendant testify under oath and instead allow the defendant to make a brief unsworn statement urging lesser punishment.” (Evans, supra, 44 Cal.4th at p. 599, italics in original.)
Defendant was not denied due process by either the state’s allocution statutes on their face or by the manner in which they were applied to him. California’s statutory scheme regulating defendant’s ability to make a mitigating statement satisfies constitutional demands. “‘The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.”’ (Mathews v. Eldridge (1976) 424 U.S. 319, 333 [47 L.Ed.2d 18].) California law, through section 1204, gives a criminal defendant the right at sentencing to make a sworn personal statement in mitigation that is subject to cross-examination by the prosecution. This affords the defendant a meaningful opportunity to be heard and thus does not violate any of the defendant’s rights under the federal Constitution.” (Evans, supra, 44 Cal.4th at p. 600.)
Defendant’s opportunity in this case to present a mitigating statement also did not violate due process protections. To the extent the parties and the court consented to an informal statement, defendant was given more than a complete opportunity to provide a statement in mitigation. Unfortunately for him, he squandered this opportunity by not focusing his remarks on the merits of this case. However, his failure to utilize this opportunity did not obligate the court to give him a second opportunity, particularly since it warned him three times to direct his remarks to this case. Defendant received all the process he was due.
II
Imposition of Attorney Fees
Defendant claims the trial court ordered him to pay public defender attorney fees without first providing notice and a hearing regarding his ability to pay. The Attorney General claims notice was given and a hearing was held, but he acknowledges the trial court did not apply a required presumption of inability to pay. We agree with the parties that the hearing was inadequate.
A. Additional background information
The trial court informed defendant of a hearing on the reimbursement issue at his arraignment. At that time, the court told defendant that if it appointed an attorney to represent him, it would hold a hearing at the conclusion of his case to determine whether he had the financial ability to reimburse the county for the attorney’s services.
Defendant’s probation report addressed defendant’s financial circumstances briefly. Defendant was unemployed and transient. He had been in and out of incarceration for the last five years and unable to obtain work. However, the probation officer believed that, “[i]f given an appropriate amount of time the defendant may be able to address the issue of fines and restitution associated with this case.”
At sentencing, the court handled the reimbursement issue perfunctorily. It did not inquire if defendant wanted to make a statement or present witnesses. Instead, it simply asked defense counsel how much time he had put into the case. When counsel said he had put in 50 or 60 hours, the court stated: “All right. Based on [defendant’s] circumstances, I’m going to limit the reimbursement to the county for his attorneys fees to $2,500.” It then remanded defendant to the sheriff’s custody.
B. Analysis
Section 987.8 authorizes a court to order a defendant to reimburse the county the cost of his appointed counsel if, at a hearing on the matter, the court determines the defendant has the present ability to pay all or a portion of that cost. (§ 987.8, subd. (b).) Notice of the hearing must occur prior to the furnishing of counsel. (§ 987.8, subd. (f).)
At the hearing, the defendant is entitled (but not limited) to the following rights: to be personally heard; to present witnesses and other documentary evidence; to have the opportunity for confrontation and cross-examination; to have adverse evidence disclosed; and to a written statement of findings. (§ 987.8, subd. (e).)
“Ability to pay” is defined as the defendant’s “overall capability” to reimburse all or a part of the costs and includes consideration of (1) present financial position, (2) “reasonably discernible future financial position” up to six months or (3) the likelihood of obtaining employment in six months, and (4) “[a]ny other factor [that] may bear” on this question. (§ 987.8, subd. (g)(2).)
Absent unusual circumstances, a person sentenced to state prison must be considered unable to reimburse the county for legal representation. (§ 987.8, subd. (g)(2)(B).) Before ordering reimbursement from a person sentenced to prison, the court must make “an express finding of unusual circumstances.” (People v Lopez (2005) 129 Cal.App.4th 1508, 1537.)
The trial court did not comply with the requirements of section 987.8. It did not offer defendant any of the procedural rights to which he was entitled. It made no determination of defendant’s present ability to pay. It did not presume him to have been unable to reimburse the county, nor did it make an express finding of unusual circumstances to overcome that required presumption.
We remand this matter to allow the trial court to convene a new hearing under section 987.8 and to conduct the hearing according to the statute’s terms.
III
Correction of Abstract
Defendant claims the abstract of judgment incorrectly lists the date of his conviction as December 4, 2007, when, in fact, he pleaded to the charge on October 29, 2007. He argues the date of conviction should be corrected. The Attorney General agrees, as do we. “A plea of guilty is the equivalent of a conviction and nothing remains to be done aside from pronouncing judgment and determining punishment.” (People v. Hill (1974) 12 Cal.3d 731, 767, disapproved on another ground in People v. De Vaughn (1977) 18 Cal.3d 889, 896, fn. 5.) We order the abstract of judgment to list the date of conviction as October 29, 2007.
DISPOSITION
The judgment is reversed and the case is remanded solely on the issue of reimbursement of attorney fees. The trial court shall conduct a hearing on that issue in compliance with section 987.8. In all other respects, the judgment is affirmed.
The clerk of the trial court is ordered to file an amended abstract of judgment stating the date of conviction was October 29, 2007, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., HULL, J.