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People v. Wilson

California Court of Appeals, First District, Second Division
Jul 16, 2008
No. A118734 (Cal. Ct. App. Jul. 16, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. NIGEL IAN WILSON, Defendant and Appellant. A118734 California Court of Appeal, First District, Second Division July 16, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Napa County Super. Ct. No. CR134244

Lambden, J.

Defendant pled no contest to the charge of taking a vehicle (Veh. Code, § 10851, subd. (a)). Defendant moved to withdraw his plea pursuant to Penal Code section 1018, and the trial court denied this motion. At sentencing, the court ordered defendant to pay his legal costs in the amount of $600. Defendant challenges the lower court’s denial of his motion to withdraw his plea and the court’s order regarding reimbursement of his public defender’s fees. We conclude that the lower court did not abuse its discretion in denying defendant’s motion to withdraw his plea. However, the order regarding his legal costs was improper as he did not receive a fair hearing on this issue. Accordingly, we affirm the judgment of conviction, but reverse the order regarding reimbursement of the public defender’s fees and remand to the trial court for further proceedings on the issue of reimbursement.

All unspecified code sections refer to the Penal Code.

BACKGROUND

According to the probation report, on March 16, 2007, an officer stopped a vehicle driven by defendant because the vehicle did not have a front license plate. The officer also noticed that the car had rear paper plates. Dispatch confirmed that the vehicle had been reported stolen. Defendant was arrested. Defendant told the officer that he was given the vehicle to drive while he was repairing it. Two other people and defendant’s dog were also inside the stopped vehicle.

A complaint filed on March 19, 2007, charged defendant with the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and receiving stolen property (§ 496, subd. (a)). On this same date, the magistrate appointed the public defender to represent defendant. When appointing the public defender to represent defendant, the court explained: “And you may be required to reimburse the county the cost of the public defender. . . .” Defendant also signed the arraignment form that stated the following: “You have the right to be represented by an attorney in this case. If you are charged with a felony or misdemeanor, the Court will appoint a free attorney for you if you cannot afford to hire one, but, at the end of the case, you may be asked to pay all or part of the cost of that attorney, if you can afford to.”

On March 28, 2007, defendant pled no contest to the charge of taking a vehicle. In exchange, defendant was released on his own recognizance pending sentencing. The plea agreement also provided a maximum penalty of three years of probation with 180 days in county jail, and provided for dismissal of the receiving stolen property charge.

On June 11, 2007, defendant moved to withdraw his plea pursuant to section 1018. The trial court held a hearing on the motion on July 6, 2007. Defendant argued that he pled not guilty because, at the time of his arrest, he had his dog in the car. He explained that he had his dog for five years and the animal meant a lot to him. Defendant stated that he did not know how his dog was doing or whether his dog would be euthanized. He elaborated: “So my biggest concern was to get out of jail so I could get my dog out of the pound.” He stated that he entered his plea of not guilty to be released from custody to permit him to get his dog; he claimed that, otherwise, he would not have entered a guilty plea. Defendant reported that, upon his release, his friend lent him the money necessary to pick up his dog from the Napa County pound.

On cross-examination, defendant claimed that he did not ask his friend who loaned him the money to recover his dog from the pound because he could not remember his friend’s phone number. Defendant declared that the other person in the car with him when he was arrested could not be trusted to get his dog back because he was “really shifty” and a “drug addict.” Defendant noted that his father called the jail asking about his dog.

At the end of the hearing, the court pointed out that defendant had counsel when he entered his plea agreement. The court denied defendant’s motion to withdraw his plea and explained: “It appears to me that [his plea] was free and voluntarily entered on that date. [Defense counsel] does mention that [defendant] was concerned about his dog and that was discussed between her and [the prosecutor] when the plea was entered. [¶] The evidence as has been produced today, I don’t believe, rises to the level that it’s clear and convincing evidence of duress, that [defendant] had no other option but to enter a plea to get out of custody to take care of his dog. He could clearly have contacted his friends or his father between the time that he was placed in custody and the date of the 28th of March. I didn’t hear anything as to why he—that couldn’t have occurred.

“And so now to say that the only reason he was—he entered the plea was to get out of custody to take care of his dog seems to be somewhat contrived to me, and I don’t think it rises to the level of duress. And so I’m going to deny the motion to set aside his plea.”

The trial court held a sentencing hearing on July 12, 2007. The court suspended imposition of sentence and ordered defendant to serve three years on probation with 120 days in jail. The court ordered defendant to pay his public defender’s fees in the amount of $600. The court stated that it understood that defendant would make monthly payments; defendant responded, “Yes, your Honor.” The following day defendant signed his promise to appear form, which included a promise to pay $600 in indigent defense fees.

On August 7, 2007, defendant filed a request for a certificate of probable cause to appeal and a notice of appeal. Three days later, the trial court granted defendant’s request for a certificate of probable cause to appeal.

DISCUSSION

I. Motion to Withdraw Plea

Defendant moved to withdraw his plea pursuant to section 1018. Section 1018 provides in relevant part: “Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. . . . On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, . . ., for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.”

In order to withdraw the plea, the defendant must show good cause based on clear and convincing evidence. (People v. Weaver (2004) 118 Cal.App.4th 131, 145.) “ ‘To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant’s free judgment include inadvertence, fraud or duress. [Citations.]’ [Citation.] ‘The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.’ [Citation.]” (Id. at pp. 145-146.)

Defendant argues extensively that due process requires that the burden of proof for withdrawing a plea should be that of a preponderance of the evidence rather than that of clear and convincing evidence. This argument was raised and rejected in People v. Nance (1991) 1 Cal.App.4th 1453, 1457-1458. As the Nance court explained: “Countless courts have held that the correct burden of proof to be applied in a prejudgment motion to withdraw a plea of guilty for good cause is clear and convincing evidence. (See, e.g., People v. Cooper (1954) 123 Cal.App.2d 353, 356 . . .; People v. Ottenstror (1954) 127 Cal.App.2d 104, 109 . . .; People v. Beck (1961) 188 Cal.App.2d 549, 552 . . .; People v. Parker (1961) 196 Cal.App.2d 704, 708 . . .; People v. McDonough (1961) 198 Cal.App.2d 84, 90 . . .; People v. Gannaro (1963) 216 Cal.App.2d 25, 28 . . .; People v. Caruso (1959) 174 Cal.App.2d 624, 634 . . .; People v. Moffett (1955) 137 Cal.App.2d 626, 629 . . .; People v. Perry (1963) 220 Cal.App.2d 841, 844 . . .; People v. Singh (1957) 156 Cal.App.2d 363, 366 . . .; People v. Brotherton (1966) 239 Cal.App.2d 195, 200 . . .; People v. Dena (1972) 25 Cal.App.3d 1001, 1008-1009 . . .; People v. Waters (1975) 52 Cal.App.3d 323, 328 . . .; People v. Urfer (1979) 94 Cal.App.3d 887, 892 . . .; People v. Harvey (1984) 151 Cal.App.3d 660, 666-667 . . . .) [¶] It seems beyond question that the burden of proof necessary to establish good cause for the withdrawal of a guilty plea prior to judgment is by clear and convincing evidence. In addition to the plethora of cases from the Courts of Appeal, the California Supreme Court has embraced it . . . . Indeed, this burden of proof is so entrenched in the case law of California that it has taken on the character of bright line law. We stand on the principle of stare decisis. If this burden of proof was erroneously adopted, we leave it to the Supreme Court to abandon it and state a new one.” (Ibid.) We agree with the reasoning of the court in Nance and reject defendant’s challenge to the clear and convincing standard of proof. (See also People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [applied clear and convincing standard of proof]; People v. Cruz (1974) 12 Cal.3d 562, 566 [same].)

“ ‘When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]’ [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (People v. Weaver, supra, 118 Cal.App.4th at p. 146.)

Here, defendant argued in the lower court that he was under duress when he agreed to the plea because he was worried about his dog. At the time of his arrest, defendant’s dog was in the car, and defendant said that he needed to get released from jail to rescue his dog from the pound. The lower court, however, found defendant’s explanation for giving his plea unconvincing or “contrived,” and the record supports this finding. Defendant knew several people in the area who could have retrieved the dog, but did not even attempt to contact them. Further, he acknowledged that his father called the jail to inquire about his dog, but provided no explanation for failing to ask his father to retrieve his dog from the pound. Defendant’s father lived in El Dorado Hills, and there was no evidence that defendant’s father was unable to get the dog.

We conclude that the record supported the lower court’s finding that defendant failed to establish by clear and convincing evidence that he entered his plea under duress due to his need to retrieve his dog, himself, from the pound. Accordingly, the lower court did not abuse its discretion in denying his motion to set aside his plea.

II. The Public Defender Fees

Defendant contends that the trial court erred when it ordered him to reimburse the county for his public defender’s fees. He maintains that the court failed to hold a hearing as required by section 987.8. The People respond that defendant waived this claim and, even if we determine there is no waiver, his claim lacks merit.

Defendant argues that the order violates section 987.6 in his opening brief. In his reply brief, he correctly refers to section 987.8.

A. The Requirements of Notice and a Hearing

Section 987.8, subdivision (b) provides: “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 in the trial court, or upon the withdrawal of the public defender or appointed private counsel, 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. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.”

Section 987.8, subdivision (e) sets forth that the defendant shall be entitled to, but not limited to, the following at the hearing: “(1) The right to be heard in person. [¶] (2) The right to present witnesses and other documentary evidence. [¶] (3) The right to confront and cross-examine adverse witnesses. [¶] (4) The right to have the evidence against him or her disclosed to him or her. [¶] (5) The right to a written statement of the findings of the court.”

Subdivision (g)(2) of section 987.8 defines “ability 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.” That subdivision further specifies that “ability to pay” includes, but is not limited to, “[t]he defendant’s present financial position,” “[t]he defendant’s reasonably discernible future financial position,” “[t]he likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing,” and “[a]ny other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the cost of legal assistance provided to the defendant.” (§ 987.8, subd. (g)(2)(A)-(D).)

Subdivision (g)(2)(B) of section 987.8 also provides that “[i]n 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” and “[u]nless 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.”

Absent notice and hearing, an order to reimburse legal fees is invalid. (People v. Flores (2003) 30 Cal.4th 1059, 1068.) In the present case, defendant agrees that he was provided notice that he could be ordered to reimburse the county for the services of his public defender. At the time the court appointed an attorney for defendant, it advised him that he may be asked to pay all or part of the cost of his attorney. Defendant also agreed in writing to a provision in his plea form that indicated that he may be asked to pay all or part of his attorney fee. Defendant, however, asserts that he did not have a hearing on reimbursement.

B. Waiver

The People argue that defendant waived any challenge to an improper hearing. At the close of the sentencing hearing, the court announced that defendant was to pay his public defender $600 and defendant agreed to pay this sum. Defendant did not ask to present any evidence or witnesses. Additionally, the People point out that defendant signed a form promising to appear, which also indicated that he agreed to pay $600 in indigent defense public defender fees. The People argue that defendant’s agreement to pay the fees at the hearing without requesting to put on any evidence waived any challenge to the court’s order regarding fees.

The People’s argument of waiver is contrary to the holding in People v. Viray (2005) 134 Cal.App.4th 1186 (Viray). The court in Viray held that a challenge to a section 987.8 fee is not waived by the defendant’s failure to object. (Viray, supra, at p. 1186.) In Viray, the defendant appealed the trial court’s order to reimburse the public defender’s office in the amount of $9,200 pursuant to section 987.8. (Viray, supra, at p. 1213.) The reviewing court held that insufficient evidence supported a finding that the defendant was able to pay the fees and the evidence did not support the finding to the specific amount of fees ordered. (Id. at pp. 1215-1217.) The court addressed the argument that the defendant had forfeited her right to challenge the reimbursement order because she did not object to the imposition of the fees at trial. The court rejected the argument of waiver and reasoned that unless the defendant “has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsel’s failure to object to an order reimbursing his [or her] own fees.” (Id. at p. 1214.) The court concluded that an appellate forfeiture could not be predicated on the failure of a trial attorney to challenge an order concerning his or her own fees. (Id. at pp. 1215-1216.) Additionally, the Viray court concluded that, because the defendant’s contentions went to the sufficiency of the evidence to support the order, no predicate objection in the trial court was necessary. (Id. at p. 1217.)

The People claim that Viray was wrongly decided, that the facts in the present case are distinguishable from those in Viray, and that the Viray’s court’s statements on the conflict between the issue of reimbursement and the public defender’s interests were dicta. We disagree with each of these contentions.

In arguing that Viray was wrongly decided, the People claim that the reviewing court cited no authority in support of its conclusion that the public defender has a conflict in challenging the fee for his or her legal services to the defendant. The People maintain that the public defender will be paid whether the defendant pays his legal fees or not and therefore there is no conflict. The People, however, ignore that the challenge can also encompass the amount charged. Clearly, the public defender has a conflict in arguing that the fees he or she has charged are excessive. Accordingly, we do not disagree with the reasoning underlying the Viray decision.

Another flaw in the Viray court’s reasoning, according to the People, is that it could result in endless hearings on reimbursement. The People claim that, once new counsel is appointed on the hearing for reimbursement, new counsel would also have to be appointed in a hearing on reimbursement for the legal representation in the prior reimbursement hearing. The People assert that the appointment of new counsel and the holding of new hearings on the issue of reimbursement could go on endlessly. This argument, however, lacks merit. A defendant is not entitled to counsel at a reimbursement hearing and therefore the defendant could represent him or herself at any subsequent hearings. In the present case, defendant could not effectively represent himself because the record does not indicate that he was ever advised of his right to a hearing or any of the rights he had at a hearing.

We also are not persuaded by the People’s arguments that the Viray court’s statements regarding the public defender’s conflict were dicta and that the facts of Viray are distinguishable from the present case. The court in Viray made clear that it had two independent bases for rejecting the argument of waiver. The Viray court held that forfeiture could not be based on the failure of the public defender to object to his or her own fees and forfeiture never applies to a sufficiency of the evidence claim. (Viray, supra, 134 Cal.App.4th at pp. 1215-1216.) Moreover, even though the People assert that defendant’s claim is not based on the sufficiency of the evidence, and is thus distinguishable from Viray, we disagree. Here, as discussed more fully below, the evidence in the record was insufficient to support any award of legal costs, no matter what the amount.

Accordingly, we conclude that defendant did not forfeit his challenge to the order regarding reimbursement of legal costs.

C. Adequacy of the Hearing

The People maintain that, even if we reject their argument of waiver, defendant’s claim must fail because the hearing on reimbursement was adequate. At the hearing, the court announced that defendant owed $600 in legal fees and asked defendant whether he understood that he would make monthly payments. Defendant responded, “Yes, your Honor.” No evidence was presented by either party regarding the amount.

The People assert that neither defendant nor his counsel indicated any desire to present additional evidence or witnesses regarding reimbursement and therefore the court did not need to hear any evidence. They claim that defendant had the opportunity to present evidence at the sentencing hearing, but did not avail himself of that opportunity. The People’s argument might have some force if the record established that defendant had been advised of his right to a hearing and of his rights at the hearing. Since the record does not show that defendant knew that he had a right to present evidence or to call witnesses, we conclude that the court’s failure to hear any evidence on the issue deprived him of a fair hearing.

D. Harmless Error

Even if the lower court erred in denying defendant a hearing on reimbursement, the People maintain that any error was harmless. Defendant does not respond to this argument, but our review of the record establishes that the error was not harmless. To support their assertion of harmless error, the People point to the probation report that stated defendant was working and could pay restitution and other fees. This report, however, does not specifically discuss defendant’s ability to pay his legal fees. More significantly, the report does not address the amount of the fees charged. The People, too, ignore the question of the amount of the fee. In the record before us, there is no evidence to support the trial court’s determination that defendant’s legal fees were $600. The absence of any evidence relating to the cost of defendant’s legal assistance deprives us of any basis whatsoever for judging the reasonableness of the amount.

As in Viray, the amount of the reimbursement ordered in the present case “is entirely unsupported by evidence” and has been “allowed without opposition.” (Viray, supra, 134 Cal.App.4th at p. 1217.) Therefore, we must reverse the lower court’s order regarding reimbursement of legal costs in the amount of $600 and remand this matter to the trial court.

DISPOSITION

The judgment of conviction is affirmed. The order for reimbursement of the cost of the public defender’s fees is reversed and the case is remanded to the trial court for further proceedings on the issue of reimbursement of attorney fees.

We concur: Kline, P.J., Richman, J.


Summaries of

People v. Wilson

California Court of Appeals, First District, Second Division
Jul 16, 2008
No. A118734 (Cal. Ct. App. Jul. 16, 2008)
Case details for

People v. Wilson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NIGEL IAN WILSON, Defendant and…

Court:California Court of Appeals, First District, Second Division

Date published: Jul 16, 2008

Citations

No. A118734 (Cal. Ct. App. Jul. 16, 2008)