Opinion
H031568.
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. LEO PONDANERA TUBERA, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant pleaded no contest to petty theft with a prior petty theft, a felony. (Pen. Code §§ 484/666.) As part of the negotiated disposition, a second count charging violation of Health and Safety Code section 11550 (being under the influence of a narcotic drug) and a prior "strike" allegation were dismissed, and defendant was promised a probationary sentence involving no more or less than nine months in the county jail. At sentencing, imposition of sentence was suspended, and defendant was granted three years formal probation on certain terms and conditions, including a nine-month county jail sentence with eight days credit for time served, and the payment of $300 in attorney fees. Defendants sole contention on appeal is that the record is devoid of substantial evidence to support the attorney fee order. We agree.
STATEMENT OF FACTS
The historical facts underlying defendants conviction are not reflected in the record on appeal. Defendant waived referral to the probation department for a full report, and the abbreviated report included in the record on appeal contains no factual summary of the charges. The abbreviated report also contains no facts about defendants financial situation. The record does contain documents indicating that Bad Boys Bail Bonds posted $10,000 bail for defendant upon the payment of a $1,000 premium, but the documents do not show who posted the premium.
At the sentencing hearing, the court stated: "The defendant is placed on formal probation for three years on the following terms." The court then recited a list of terms, including a probation supervision fee not to exceed $64 per month and the sum of $300 in attorney fees. The court then asked defendant: "Do you understand and agree to each of these terms and conditions of probation?" Defendant said he did. The court stayed the nine-month jail term for six weeks.
DISCUSSION
On appeal, defendant challenges the attorney fee order on the grounds that the record is devoid of evidence to support the implied finding that he had the ability to pay attorney fees.
The Attorney General argues that People v. Lopez (2005) 129 Cal.App.4th 1508, in which we held that lack of sufficient evidence of the defendants ability to pay attorney fees can be raised for the first time on appeal, is distinguishable from this case because, unlike the defendant in Lopez, defendant here was not sentenced to state prison and there is no concomitant statutory presumption that he has no ability to pay. As we understand the Attorney Generals next argument, he also claims that since (1) someone put up the $1,000 premium for the bail bond, (2) defendant was not in custody from his release on bail in December 2006 until the commencement of his jail term in June 2007, and (3) the trial court followed the procedures set forth in section 987.8, no error has been shown and we should dismiss the appeal. Alternatively, the Attorney General argues that if defendants claim is cognizable on appeal, and there is trial court error, we should remand to the trial court for a hearing on defendants ability to pay.
Defendant counters that the court that did not follow the statutory procedures; it did not hold an ability to pay hearing and, as a consequence, there is no evidence to support even an implied finding that defendant paid the premium on the bail bond, was working, had job prospects, or otherwise had the ability to pay attorney fees. He asks that the court strike the fee or remand for a hearing, at the courts discretion. For the following reasons, we agree with defendant and reject the Attorney Generals arguments in favor of forfeiture. We also exercise our discretion to strike the attorney fees in this case.
Unauthorized Sentence
As a preliminary matter, we note that the imposition of attorney fees as a condition of probation is not authorized by section 987.8. Therefore, the rule of forfeiture stated in People v. Welch (1993) 5 Cal.4th 228 [appellate challenge to reasonableness of probation conditions forfeited absent objection below], People v. Scott (1994) 9 Cal.4th 331, 354 [appellate challenge to discretionary sentencing choices, i.e., "sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner"], and People v. Gonzalez (2003) 31 Cal.4th 745 [same], has no application where, as here, the court cannot lawfully impose attorney fees as a condition of probation in the first place.
The same rule holds true for probation costs, which the court also imposed here as a condition of probation. (People v. Hart (1998) 65 Cal.App.4th 902; People v. Bradus (2007) 149 Cal.App.4th 636; People v. Hall (2002) 103 Cal.App.4th 889; Brown v. Superior Court (2002) 101 Cal.App.4th 313; People v. Washington (2002) 100 Cal.App.4th 590 (Washington).) "These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay." (Washington, at p. 592.) Therefore, defendant can challenge at any time a probation condition that requires the defendant to pay fees related to probationary costs or attorney fees.
In addition, we think the attorney fee order is unauthorized for another reason. An attorney fee order is not mandatory under section 987.8, and a determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fees order. (§ 987.8, subd. (e).) Thus, the factual predicate of the order — defendants ability to pay — defines the substantive authority of the court to make the order. (People v. Butler (2003) 31 Cal.4th 1119, 1126.) "`Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception. [Citation.] This principle of appellate review is not limited to judgments...." (Ibid., fn. omitted.)
Furthermore, while the determination of ability to pay may be implied, the order cannot be upheld on review unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) In our view, the Lopez courts recognition of this principle is not tethered to whether the defendant goes to prison or jail, or whether a statutory presumption of inability to pay arises. We therefore conclude that defendants claim of factual insufficiency for the attorney fees order was not forfeited by his failure to object on that ground below.
For the following reasons, we find defendants claim is meritorious, and the proper remedy in this case is to strike the order imposing fees.
Insufficient Evidence
Under section 987.8, subdivision (b), "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" of legal assistance provided through "the public defender or private counsel appointed by the court." (Italics added.) 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).)
Section 987.8, subdivision (g)(2) sets forth the definition of "ability to pay" and what factors the court must consider in making that determination: "`Ability to pay means 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 defendants present financial position. [¶] (B) The defendants 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 defendants 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 defendants financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." (Italics added.)
When the issue on appeal is sufficiency of the evidence, "we must draw all reasonable inferences in favor of the judgment." (People v. Mercer (1999) 70 Cal.App.4th 463, 467.) Here, drawing all inferences in favor of the judgment, we cannot agree with the Attorney General that the record contains substantial evidence of defendants ability to pay attorney fees. The record is devoid of any evidence from which we can draw any inferences about defendants ability to pay attorney fees. The record does not disclose whether he paid for the premium on his bail bond, was gainfully employed, was looking for work or, for that matter, was disabled or for some other reason unable to work. From this record all we can reasonably infer is that "six months from the date of the hearing for purposes of determining the defendants reasonably discernible future financial position," defendant would still be incarcerated. For all the record shows, the court may have granted defendant a six-week reprieve from his jail sentence so that he could undergo surgery or visit a sick relative in a foreign country. We are constrained to conclude that, here, as in People v. Kozden (1974) 36 Cal.App.3d 918, 920, "there is no substantial evidence to support the trial courts determination that [defendant] possessed the present ability to pay the sum assessed...."
Nor is this an appropriate case to remand to the trial court for possible development of a factual predicate for the order. This is not a case such as People v. Flores (2003) 30 Cal.4th 1059, 1068, in which the probation report showed that the defendant possessed $1,500 worth of jewelry at the time of sentencing. The Attorney General has not directed our attention to any fact that would indicate defendant has any assets. Also, defendants nine-month jail sentence eliminates the "likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing." (§ 987.8, subd. (g)(2)(C).) We believe that in light of defendants jail sentence, and the modest fee order, a further judicial proceeding would only generate more costs. In the interests of judicial economy and efficiency, we will therefore strike the order assessing attorney fees.
We will also exercise our power to correct an unauthorized sentence to strike the probation costs as a condition of probation. However, we will modify the judgment to include an order for the payment of such costs.
CONCLUSION
Substantial evidence to support the courts order of attorney fees is lacking. We strike the fees as well as the probation costs in the amount of $64 per month or less.
disposition
The judgment is modified to strike the award of attorney fees and probation costs from the probation order; however, the order that defendant pay such probation costs is affirmed. As modified, the judgment is affirmed.
We Concur:
Bamattre-Manoukian, Acting P.J.,
Mihara, J. --------------- Notes: Unless otherwise indicated, all statutory references are to the Penal Code.