Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Super.Ct.No. RIF123741.
Dabney B. Finch, 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, Pamela Ratner Sobeck, and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 1) and battery upon a spouse (§ 243, subd. (e)(1)) (count 2). The trial court suspended imposition of sentence and placed defendant on formal probation for three years on various terms and conditions. Defendant’s sole contention on appeal is that the trial court failed to follow the procedural requirements of section 987.8 in ordering him to reimburse the county for attorney fees. We agree and will remand the matter for further proceedings in accordance with this opinion.
All future statutory references are to the Penal Code unless otherwise stated.
The details of defendant’s criminal conduct are not relevant to the limited issues defendant raises in this appeal. Those details are summarily set out in the parties’ briefs, 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.
DISCUSSION
At sentencing, the trial court sentenced defendant to three years of formal probation on count 1 and a concurrent three years of probation on count 2 on various terms and conditions, including serving 280 days in county jail with credit for 92 days. The court also ordered defendant to pay for 20 hours of his appointed counsel’s time as a rate of $90 per hour, for a total of $1,800.
Defendant asserts that the trial court’s order to pay attorney fees must be stricken because the court failed to give him adequate notice and a hearing regarding the fees. He further claims there was insufficient evidence of his present ability to pay, and the order was improperly made a term of condition of probation. Anticipating waiver, he also argues that his trial counsel was ineffective for failing to object to these errors. The People respond that defendant waived this claim, and, even if we determine there is no waiver, his claim lacks merit.
A. Procedural Safeguards of Section 987.8
Subdivision (f) of section 987.8 provides: “Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. The notice shall inform the defendant that the order shall have the same force and effect as a judgment in a civil action and shall be subject to enforcement against the property of the defendant in the same manner as any other money judgment.”
Section 987.8, subdivision (b) also explicitly requires notice of a hearing to determine ability to pay. That subdivision 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.”
Here, the record is devoid of any evidence showing that defendant was advised he might be required to reimburse the cost for attorney’s fees at any time, even before he was appointed counsel. On January 11, 2007, the court appointed counsel to represent defendant. Defendant was present at that hearing. However, as the People point out, the record on appeal does not contain the reporter’s transcript for that proceeding, nor does it include defendant’s confidential financial statement form. In addition, nothing in the probation report gave defendant such notice. In People v. Heath (1989) 207 Cal.App.3d 892, the court reversed the order for reimbursement of attorney fees solely on the ground of lack of notice. (Id. at pp. 902-903.)
We reject the People’s assertion that defendant “presumably” received notice. There is nothing in the record to support the presumption that the court complied with section 987.8.
Additionally, in People v. Poindexter (1989) 210 Cal.App.3d 803, we held that section 987.8 requires evidence of the actual costs of the legal services provided. (Poindexter, at p. 809.) We explained, “Penal Code section 987.8 gives the trial court discretion to determine a defendant’s ability to pay the cost to the county of legal services provided and to set the manner of payment, but does not give the court any discretion to determine the reasonable value of those services. [Citation.] The court must review evidence of the actual costs to the county before it can assess costs or attorney’s fees to the defendant. [Citation.]” (Id. at pp. 810-811.)
Here, neither counsel, like the attorney in Poindexter, had submitted a statement to the court. The absence of a statement was no doubt due in part to the lack of notice that attorney fees would be assessed. Moreover, there was no discussion regarding the reasonable value of services provided by defendant’s appointed trial counsel, who was from the public defender’s office. Rather, the court arbitrarily found that defendant was to pay “$90 per hour for 20 hours of attorney time in this matter as it relates to the services of [the appointed attorney].”
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 fees in the amount of $1,800. 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) and (e).
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.”
B. Waiver
The People 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.
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, supra, 210 Cal.App.3d at p. 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 rely on People v. Valtakis (2003) 105 Cal.App.4th 1066, in which the First District, Division Two held, “[A] defendant’s failure to object at sentencing to noncompliance with the probation fee procedures of . . . section 1203.1b waives the claim on appeal, consistent with the general waiver rules of People v. Welch (1993) 5 Cal.4th 228 [19 Cal.Rptr.2d 520, 851 P.2d 802] . . . and People v. Scott (1994) 9 Cal.4th 331 [36 Cal.Rptr.2d 627, 885 P.2d 1040] . . . .” (Id. at p. 1068, fn. omitted.) While we agree with the reasoning in Valtakis, it is factually distinguishable from the instant case, requiring a different result.
In Valtakis, the defendant entered into a negotiated plea and initialed an entry of plea form. The form included a provision stating that he would “‘be subject to fines that may vary in amount from $10.00 to $20,000.00.’” (People v. Valtakis, supra, 105 Cal.App.4th at p. 1069.) The probation report recommended various fees, including a $250 probation fee pursuant to section 1203.1 but contained no determination of ability to pay or advisement of a right to a separate hearing on that issue. (Valtakis, at p. 1069.) Neither the defendant nor his trial counsel objected to the sentencing court’s order that the defendant pay a $250 probation service fee. (Ibid.)
Unlike the defendant in Valtakis, defendant here was not informed through the probation report that imposition of appointed attorney fees pursuant to section 987.8 was recommended. Defendant’s probation report recommended that defendant pay (1) the costs of the presentence probation report (§1203.1, subd. (b)), in an amount and manner to be determined by Financial Services Division, not to exceed $318; (2) victim restitution (§ 1202.4) in an amount to be determined; (3) $110 for the booking fee (Gov. Code, § 29550); (4) $20 for court security fee (§ 1465.8, subd. (a)(1)); (5) a $200 restitution fee (§ 1202.4); and (6) a $200 parole revocation fine, to be stayed pending successful completion of parole (§ 1202.45). The probation report made no mention of the $1,800 in court-appointed attorney fees. Based on the record before us, it appears that defendant was first apprised that he was to pay $1,800 in court-appointed attorney fees at the sentencing hearing when the court, while going through defendant’s terms and conditions of probation, stated, “With regard to attorney fees, it’s the finding of the Court that [defendant] pay $90 per hour for 20 hours of attorney time in this matter as it relates to the services of [the appointed attorney].”
The probation report recommended a prison sentence.
Moreover, 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.
Unlike the defendants in Valtakis and Whisenand, 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. “[I]n the analogous context of restitution and restitution fines, it has been held that ‘[a] defendant’s due process rights are protected when the probation report gives notice of the amount of restitution claimed and expected to be ordered . . ., and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing.’” (People v. Phillips (1994) 25 Cal.App.4th 62, 74.) Under the circumstances of this case, we conclude defendant had insufficient notice at the time of sentencing, and we reject the People’s claim that defendant’s failure to object to the court-appointed attorney fees at sentencing constitutes a waiver of the claim on appeal.
We also reject any claim that reversal of the attorney fees order is not required because defendant has shown no prejudice. (See, e.g., People v. Smith (2000) 81 Cal.App.4th 630, 638-639.) In Smith, the defendant had reason to be aware he might be held responsible for payment of attorney fees but was not given notice specifically complying with the requirements of section 987.8. (Smith, at p. 638.) The appellate court affirmed the order because the defendant had not demonstrated prejudice: He was aware of the possibility he might be ordered to pay the fees, a hearing on the issue was held, and he did not argue he lacked ability to pay or the amount ordered was erroneous. (Id. at pp. 638-639.) In the instant matter, defendant had no reason to expect he might be ordered to pay attorney fees and no inquiry was made into his ability to pay.
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 other 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.)
C. Appropriate Remedy
In People v. Flores, supra, 30 Cal.4th 1059, the case was remanded to the trial court to “make an informed decision” (id. at p. 1069) about the defendant’s ability to pay attorney fees. Flores observed that the defendant “may not be able to pay the $5,000 ordered by the trial court, but he may be able to pay something, and if he can, he is obligated by the statute to do so.” (Id. at pp. 1068-1069.)
The Legislature has found, with respect to a criminal defendant’s obligation to pay attorney fees, that “[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.” (§ 987.8, subd. (g)(2)(B).) In remanding the question to the trial court, Flores noted that the defendant had been stably employed and possessed $1,500 worth of jewelry. (People v. Flores, supra, 30 Cal.4th at p. 1068.) Moreover, his prison sentence was three years. (Id. at p. 1063.)
In this case, we see substantial evidence that defendant is as well situated financially as the Flores defendant appeared to be. First, defendant here was not sentenced to state prison but was granted probation; hence, he has a “reasonably discernible future financial ability to reimburse the costs of his . . . defense.” (§ 987.8, subd. (g)(2)(B).) Second, the record indicates that defendant was a self-employed realtor earning about $20,000 per month since July 1999. In addition, he supported his children and was in excellent health. Finally, according to defendant’s wife, defendant was a self-employed subcontractor who invested in property. Given all of the circumstances of the case, the appropriate remedy is to remand the matter for notice and hearing.
On remand, however, defendant’s ability to pay must be determined with reference to defendant’s financial condition at the time of the sentencing or not later than six months after the sentencing under section 987.8, subdivision (g)(2)(B).
Finally, as pointed out by the parties, if the trial court opts to impose the court-appointed attorney fees following notice and hearing to determine defendant’s ability to pay, an order to pay attorney fees cannot legally be imposed as a condition of probation. (People v. Bradus (2007) 149 Cal.App.4th 636, 641.)
III
DISPOSITION
The matter is remanded to the trial court with instructions to vacate its previous order that directed defendant to pay $1,800 in attorney’s fees and to conduct further proceedings to determine defendant’s ability to pay pursuant to Penal Code section 987.8. The court may impose a new order to pay attorney fees if it determines that defendant has the ability to pay, but that order shall not be a condition of probation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.