P. v. Curenio

Filed 8/30/06 P. v. Curenio CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H029398

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. FF408335)

CEFERINO CURENIO,

Defendant and Appellant.

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Defendant Ceferino Curenio was charged by felony complaint with one count of second degree burglary (Pen. Code, §§ 459-460, subd. (b)), one count of petty theft (Pen. Code, § 666), and two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).[1] On March 17, 2005, defendant pleaded no contest to the second degree burglary charge and admitted the prior prison terms. On August 29, 2005, the court sentenced defendant to four years in state prison. Pursuant to defendant's plea agreement, the court suspended execution of the prison sentence and ordered defendant to serve one year in county jail as a condition of probation. The court also ordered defendant to pay restitution fines pursuant to sections 1202.4 and 1202.45, a court security fee, and attorney fees pursuant to section 987.8. Defendant appeals the order to pay attorney fees, and we strike the order.

I. Factual Background

On October 5, 2004, Gilroy police officers responded to a theft reported at a Target store.[2] Through the store's surveillance cameras, one of Target's security officers observed defendant open two packages of cellular phones with a box cutter. Defendant placed the phones in his pocket. Defendant then walked to the sporting goods area, opened the packaging for a knife, and pocketed the knife. Defendant exited the store without paying for the merchandise. Gilroy police arrested and searched defendant, recovering the knife and cellular phones.

II. Discussion

Defendant contends that there is insufficient evidence to support the court's order directing him to pay up to $500 in attorney fees pursuant to Penal Code section 987.8. We agree.

An order to reimburse the county for attorney fees is not mandatory under section 987.8, and a determination that defendant has the ability to pay is a prerequisite for entry of such an order. (§ 987.8, subd. (e).) Section 987.8 provides, in relevant part, that â€