P. v. Fallon

Filed 10/23/06 P. v. Fallon CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Butte)

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After defendant Quinn David Fallon pled guilty to abuse on a cohabitant (Pen. Code, § 273.5, subd. (a))^[1], the court placed him on probation for three years, ordered him to serve 365 days in jail and assessed various fees and fines, including $420 in attorney’s fees. On appeal, he contends the trial court erred by assessing attorney’s fees without a finding of present ability to pay. He also contends, and the People concede, that the trial court erred by failing to include credit for good behavior in its calculation of presentence credits.

We shall remand for a further hearing with respect to defendant’s present ability to pay attorney’s fees. We accept the People’s concession as to presentence credit and will direct the trial court to modify the judgment accordingly. We shall affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

A deputy from the Butte County Sheriff’s Office was dispatched to a home in Oroville, California. The victim, Cynthia Taylor, reported that her boyfriend, defendant Fallon, had been drinking and “beat her up” during an argument, striking her and kicking her in the head for approximately 45 minutes. The victim stated she believed she had lost consciousness at some point during the attack. She complained of pain in her face, head, forearms, and back, and was transported to Oroville Hospital, where she was reported to have abrasions on her back and both sides of her face.

Approximately one month later, a felony complaint was filed against defendant alleging corporal injury to a cohabitant (§ 273.5, subd. (a)), and a warrant issued for his arrest.

Defendant was arrested a month later and booked into county jail. He pled guilty to the sole charge of cohabitant abuse in exchange for the People’s stipulation to no immediate state prison, and remained in custody pending the sentencing hearing.

The court sentenced defendant to three years probation, attaching conditions as recommended in the probation report, and assessed various fees and fines including “$420 to the public defender.” The court also ordered defendant to serve 365 days in jail, minus 48 days of presentence credit for time actually served.

Defendant filed a timely notice of appeal.

DISCUSSION

I

Attorney’s Fees

Defendant argues the trial court erred in ordering him to pay attorney’s fees because (1) it made no determination that unusual circumstances existed to warrant the requisite finding of defendant’s ability to pay, and (2) there is no substantial evidence in the record that defendant actually has the ability to pay. We agree with the second point.

“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, . . . 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.” (§ 987.8, subd. (b).) “If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability.” (§ 987.8, subd. (e).)

“‘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 defendant’s present financial position. (B) The defendant’s reasonably discernable 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 discernable future financial position. Unless 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. (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).)

A determination that a defendant has the ability to pay is a prerequisite for entry of an attorney’s fees order. (§ 987.8, subd. (e).) While such a finding 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; People v. Kozden (1974) 36 Cal.App.3d 918, 920.)

The record reveals no express finding that defendant had the present ability to pay attorney’s fees. Instead, the court stated that, after reading and considering the probation report, it was prepared to grant probation, and imposed, among other things, attorney’s fees in the amount of “$420 to the public defender” as recommended in the report.

Although we can find an implied finding of ability to pay, given the court’s consideration of the probation report, we are unable to find substantial evidence to support such a finding without further clarification regarding defendant’s financial status. The probation report, dated November 7, 2005, states that defendant has been employed for the past five years as a caretaker at a rate of $500 per month. Prior to that, defendant was evidently employed at a golf course until 1992, and prior to that as a construction laborer. Defendant’s average monthly expenses are $500. He has personal property worth $200, but no assets. Although the report indicates that defendant “acquires commodities and other things from Mooretown Rancheria” as a result of his Native American heritage, the record is silent as to the nature of those items or their value. In our view, $200 of personal property does not constitute substantial evidence to support a finding of ability to pay. However, without more information, we cannot ascertain whether the additional “commodities and other things” sufficiently increase defendant’s finances such that a finding of ability to pay would be supported by substantial evidence.

Furthermore, while the probation report reflects the fact that defendant has been and is employable, he will not have an ability to pay in the reasonably discernible future due to the fact that he will be serving the remainder of the 365 days in jail as ordered by the trial court.

The trial court’s implied finding as to defendant’s ability to pay attorney’s fees is not supported by substantial evidence.

Defendant urges us to strike the order for attorney’s fees, while the People request that we remand for further proceedings. An appellate court may remand a cause for an ability-to-pay hearing after the expiration of the six-month period prescribed by section 987.8, subdivision (b). (People v. Flores (2003) 30 Cal.4th 1059, 1068.) It is possible that the “commodities and other things” defendant receives from Mooretown Rancheria have sufficient value to justify an order for payment of fees. We therefore remand that issue to the trial court for further hearing.

II

Presentence Credit

Defendant also contends, and the People concede, that the trial court failed to include good conduct credit in calculating defendant’s presentence credits. We accept that concession. Credit for good behavior while in custody is calculated by dividing the number of days spent in custody by four, rounding that number down to its nearest whole number, and then multiplying the result by two. (People v. Fry (1993) 19 Cal.App.4th 1334, 1341.) We remand the issue to the trial court to calculate good behavior credit according to the established formula.

DISPOSITION

The matter is remanded to the trial court for a determination of defendant’s ability to pay attorney’s fees in the amount of $420, and to calculate good time credit for defendant’s presentence custody. In all other respects, the judgment is affirmed.

SIMS , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] The facts are taken from the probation report.