P. v. Keo

Filed 3/7/07 P. v. Keo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In January 2006, defendant Setha Keo was charged with one count of forgery and one count of grand theft. He was provided with the services of a public defender. Both counts were later dismissed for insufficient evidence on the motion of the district attorney. Under Penal Code section 987.8,[1] the trial court then ordered defendant to pay $2,500 for services of the public defender at the rate of $35 per month. Defendant contends on appeal that the court erred by ordering the payment of fees without a determination of his ability to pay those fees. We agree that the record discloses no finding by the court of defendants ability to pay fees, and that even if the court were to have made such an implied finding, there is no substantial evidence in the record that would support it. We accordingly reverse to the extent the court ordered defendant to pay attorney fees and remand the matter to the trial court to enable it to either make the determination as required by section 987.8 regarding defendants ability to pay or strike the order.

STATEMENT OF THE CASE[2]

Defendant was charged by information with one count of forgery of a check, money order, cashiers check, draft, or travelers check in violation of section 470, subdivision (d), and one count of grand theft in violation of section 487, subdivision (a). Both counts were later dismissed for insufficient evidence. When the court granted the district attorneys dismissal motion, it stated its intention to assess attorney fees for defendants representation by the public defender.

In addressing attorney fees, the court first noted the extent of the public defenders involvement in defendants representation. Then, the court said, Im going to assess $2,500 for attorney fees and Im relying on pretrial services and the information you gave at the time of your arrest.^[[3]] I am referring the matter to the Department of Revenue for a determination of your ability to pay and if you wish to bring it back to court for further hearing as to your ability to pay. [] I can set up a payment plan Sir, setting up a minimum of [$]35 or $50 a month. Do you have a preference? [] THE DEFENDANT: No. Its fine, $35 or $50 a month. [] THE COURT: $35 a month. All right. Lets do that starting, I have to give them some time to set this up. How about September 15th would be the first payment and [the] 15th of each month? [] THE DEFENDANT: Yes, Maam. [] THE COURT: September 15th and the 15th of each month until paid in full. All right. Thank you.

Defendant timely filed his notice of appeal challenging the payment of attorney fees.[4]

DISCUSSION

I. Contentions and Statutory Overview

Defendant asserts that, contrary to the requirements of section 987.8, subdivision (e), the court failed to make a finding that he had the present ability to pay attorney fees before directing him to do so. He further contends that even if we were to conclude that there was an implied finding of his ability to pay, there is no substantial evidence in the record to support such a finding. Defendant argues that the attorney fee order should accordingly be stricken.

Respondent on the other hand contends that the court made a finding as to defendants ability to pay in reliance on whatever information had been prepared by pretrial services[5] at the time of defendants arrest and release on his own recognizance. Respondent further contends in any event that the court referred defendant to the Department of Revenue for a determination of [his] ability to pay and if he disagreed with that determination, he was given the opportunity for further hearing in the trial court, where his remedy remains. The implication from the courts referral to the Department of Revenue (the Attorney General suggests) is that the courts attorney fee order was contingent upon the Departments determination that defendant had the ability to pay the fees.[6] Respondent finally requests that we remand in the event we find trial court error rather than strike the fee order.

Section 987.8, subdivision (b), provides in relevant part: 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. . . . 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. Further, [i]f 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. ( 987.8, subd. (e).)

Under section 987.8, subdivision (g)(2), [a]bility 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 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 defendants reasonably discernable 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.

The courts finding of the defendants present ability to pay need not be express, but may be implied through the content and conduct of the hearings. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.) But any finding of ability to pay must be supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920.)

II. Analysis

We read section 987.8, subdivision (b), as expressly requiring a findingwhether express or impliedby the court of the defendants ability to pay as a precondition to an order assessing attorney fees. Here, there is nothing in the record addressing the issue of defendants ability to pay other than the courts reference to the information provided to pretrial services by defendant at the time of his arrest, which preceded the attorney fee order by a minimum of some ten months. Contrary to respondents assertion, information not contained in the appellate record cannot constitute substantial evidence to support the courts order. And the only information about defendants financial condition that may be gleaned from the record on appeal is from a letter from the district attorneys office to defendants counsel written in the course of pretrial discovery. The letter referenced defendant having deposited an unemployment checknot exactly a fact that would tend to support his ability to pay or his positive earning potential. Even were we to imply a finding by the court of defendants present ability to pay based upon the attorney fee order itself, there is still no evidence in the recordsubstantial or otherwiseto support such an implied finding.

We also reject respondents suggestion that the order was proper because it was impliedly conditioned upon a subsequent finding of defendants ability to pay by the Department of Revenue. Although before imposing the attorney fee payment plan, the court referred defendant to the Department and indicated that he could return to court if he disagreed with the Departments determination, the order directing payment of attorney fees was ultimately unconditional. And it assessed fees without the required determination by the court under section 987.8, subdivision (e), of defendants ability to pay them.

We conclude that the record fails to disclose a finding by the court of defendants ability to pay attorney fees. Even if we were to imply such a finding, there is no substantial evidence in the record to support it. Accordingly, the attorney fee assessment cannot stand. This leaves only the question of the remedy for the error. Since the counts with which defendant was charged were dismissed and he is not serving a prison sentence, there is no presumption of his inability to pay under section 987.8, subdivision (g)(2)(B). Moreover, $2,500 is not de minimus. In view of this, rather than strike the order directing the payment of fees, we will remand the matter to the trial court to either determine defendants ability to pay fees before further assessing them or strike the order. (People v. Flores (2003) 30 Cal.4th 1059, 1068-1069.)

DISPOSITION

The order directing defendant to pay $2,500 in attorney fees is reversed. The matter is remanded to the trial court to either hold a noticed hearing to determine defendants present ability to pay fees in accordance with the statute before directing him to do so or strike the order.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting, P.J.

Mihara, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] The underlying facts leading to the charges are not pertinent to our review.

[3] The appellate record does not contain documents to which the court may have been referring here.

[4] The matter is appealable under section 1237, subdivision (b).

[5] As noted, this information does not appear in the record.

[6] Respondent does not assert that defendant waived his claim by his failure to object or by his agreement in the trial court to a payment plan. In any event, in absence of a guilty plea, we would find no such waiver since the People bear the burden on the issue of defendants ability to pay attorney fees and this is an issue which we review for sufficiency of the evidence. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)