Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF08-3343
BLEASE, J.
Defendant Joseph Leroy Tombs pleaded no contest to second degree burglary (Pen. Code, § 459) in exchange for “no immediate state prison with credit for time served” and dismissal of the remaining charges. The trial court suspended imposition of sentence and placed defendant on five years formal probation, on the condition he serve 12 days in county jail, with credit for time served. Defendant was ordered to pay $3,850 in victim restitution, as well as a $385 surcharge (§ 1202.4, subd. (f)); a $200 restitution fine (§ 1202.4, subd. (b)); a $200 probation revocation fine (§ 1202.44); a $20 court security fee (§ 1465.8, subd. (a)(1)); a $30 conviction fee (Gov. Code, § 70373, subd. (a)(1)); $40 a month for probation supervision (§ 1203.1b, subd. (a)); and $200 for attorney fees (§ 987.8, subd. (b)).
Further undesignated statutory references are to the Penal Code.
Defendant appeals, contending there is insufficient evidence to support the assessment of attorney fees. The People respond that the matter is forfeited because defendant did not raise the issue below, and alternatively, there was sufficient evidence to support the assessment of such fees. We shall remand the matter to the trial court with directions to follow the statutory procedure on this issue.
The facts of the underlying offense are not germane to the issues raised on appeal.
As a preliminary matter, we disagree with the People’s assertion that defendant has forfeited his claim on appeal. If the issue here were a lack of notice or failure to conduct a hearing, the matter could be forfeited by failure to object at the trial level. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395-1396.) However, that is not defendant’s claim. Rather, he claims there is insufficient evidence to support the assessment of attorney fees. Such a challenge requires no predicate objection in the trial court. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217, citing People v. Butler (2003) 31 Cal.4th 1119, 1126.)
So, we turn to the question whether there was substantial evidence that defendant had the ability to pay the attorney fees. Section 987.8, subdivision (b), provides that where a defendant has been provided legal assistance, at the conclusion of the case the court may “make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.”
Upon determining that the defendant does have “the present ability to pay all or a part of the cost” of legal assistance, “the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county....” (§ 987.8, subd. (e).)
A defendant may be made to pay attorney fees only where the trial court determines he has the present ability to pay. (People v. Faatiliga (1992) 10 Cal.App.4th 1276, 1280, overruled on other grounds by People v. Flores (2003) 30 Cal.4th 1059, 1068.) Section 987.8 defines “[a]bility to pay” as “the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (§ 987.8, subd. (g)(2).)
The trial court did not make an express finding that defendant has the present ability to pay attorney fees. While such a determination may be implied (People v. Phillips (1994) 25 Cal.App.4th 62, 71), the order cannot be upheld on review unless it is supported by substantial evidence (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920).
Because there was no hearing on the issue of defendant’s ability to pay attorney fees, the evidence on that issue is limited to the probation report and a letter from defendant following the preparation of that report. Because the probation report did not recommend attorney fees be assessed, it does not directly address defendant’s financial condition. Accordingly, the evidence bearing upon defendant’s present ability to pay attorney fees is limited to the following: Defendant is 51 years old and suffers from “knee problems.” He is separated from his third wife and has two adult children. He lives with his girlfriend, whose occupation is listed as “parolee.” Although the probation report indicates defendant was employed by Alberto Castillo from 2007-2009, it provides no information concerning defendant’s salary, stating only that it “varies.” Moreover, according to Castillo, defendant “worked out for a while, but then started showing up late and then there were days that he would not show up at all, ” and Castillo told him that “he could not have that because it was bad for business.” From 2003 to 2007, defendant worked as a truck driver in Arkansas. There is no indication in the record, however, that defendant could obtain employment as a truck driver in California in the next six months. Nor is there any indication he has the ability to work as a truck driver given his knee problems. It also is unlikely defendant could obtain employment with Castillo, given that he stored stolen property in Castillo’s shop. Furthermore, there is no information in the record concerning defendants’ assets, if any, or his monthly expenses, other than the other fines and fees imposed. Finally, at the time the probation report was prepared, defendant was in custody, having committed a new felony offense while out on bail in this case.
Absent additional information concerning financial status, we are unable to find substantial evidence to support an implied finding that defendant has the present ability to pay attorney fees. Because the lack of evidence is a result of procedural deficiencies, not a demonstrated lack of evidence, we will remand the matter to the trial court for further proceedings.
Pursuant to this court’s miscellaneous order number 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitled him to additional presentence credits. As expressed in the recent opinion in People v. Brown (2010) 182 Cal.App.4th 1354, 1365, we conclude that the amendments do apply to all appeals pending as of January 25, 2010. Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 4019, subds. (b), (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant having served eight days of presentence custody, is entitled to eight days of conduct credit. Because, however, defendant was ordered to serve 12 days in jail with credit for time served, this is a moot point.
DISPOSITION
The matter is remanded to the trial court with instructions to vacate its order directing defendant to pay $200 in attorney fees and to conduct further proceedings to determine defendant’s ability to pay pursuant to Penal Code section 987.8. In all other respects, the judgment is affirmed.
We concur: SCOTLAND, P. J. ROBIE, J.