P. v. Sevilla

Filed 7/18/07 P. v. Sevilla CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Modoc)

----

Defendant Arturo Sevilla entered a negotiated plea of no contest to grand theft, in exchange for a promise that he would not be sentenced to state prison at the outset and that two other counts, charging embezzlement and misappropriation of public funds, would be dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, permitting the trial court to consider the facts of those counts for the purpose of sentencing.

Granted probation, defendant appeals. He contends the trial court erroneously ordered him to pay $3,991.50 for defense accounting services rendered in determining victim restitution. We shall affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

When defendant entered his plea, the clerks transcript reflects that the trial court found a factual basis for the plea. The reporters transcript for the entry of plea hearing is not part of the record on appeal (with the explanation that the court reporter had left Modoc County, her notes were not transferred to the court and, attempts to obtain the transcript were to no avail.) In supplemental letter briefs, the parties agree that the issue raised on appeal can be resolved without the reporters transcript of the entry of plea. The following facts are taken from the probation report and the reporters transcript of the restitution/sentencing hearing.

Defendant was employed by the county as a traffic clerk with the responsibility of accepting money paid on fines and accounting for it. A surprise audit revealed missing funds totaling $11,728.10. Defendant admitted that he took county money for personal use but said that he always repaid it when he received a paycheck or a loan from a family member. He denied being responsible for the loss, and claimed it was due to computer problems.

Defendant was initially represented by the public defenders office. After his Faretta motion was denied (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]), defendant retained counsel. Months later, retained counsel sought the services of a court appointed accountant, representing that defendant did not have the money to pay for an accountant and that retained counsels fees had been paid by defendant with borrowed funds. Retained counsel planned to fax to the court an ex parte application for appointment of an accountant as well as for an investigator. The court appointed an accountant to assist the defense in examining the countys records concerning the amount of the claimed loss. The record on appeal includes neither the application nor the order appointing an accountant.

At the restitution/sentencing hearing, the parties agreed that, based on the discrepancies noted by the defense auditor, the missing funds totaled $11,394.60 instead of $11,728.10. Defendant disputed that he was responsible for the entire loss.

Linda Ostoja, the countys chief financial officer, testified as follows: She was defendants supervisor. Defendant received fines at the county window but was not the only employee to do so. Upon accepting payment, defendant had the responsibilities of entering the amount into the computer, giving the payee a receipt, putting a copy of the receipt into the payees file, and placing the payment into an unlocked drawer. (Ostoja noted the office was not secure.) The next day, defendant had to complete a reconciliation sheet, recording the amounts received. He also was responsible for sending out delinquency notices. Defendant never notified Ostoja that money was missing from the drawer. On the last day of his employment, defendant made two $1,000 deposits into the countys account. The audit revealed the missing funds. (The defense accounting expert questioned certain items contained in the audit, and corrections were made to the total amount missing.) After defendant left, Ostoja noted that no other funds disappeared.

Defendant testified as follows: He took small amounts of money when he had financial problems, but he always replaced it. On a few occasions, he took $1,000 but repaid it. He always matched the deposits with the reconciliation sheet. He never noticed any money missing other than what he took.

At the restitution/sentencing hearing, defendant stated that he had a construction job that paid $11 an hour, worked 40 hours a week, had done so through the winter, and would receive possible overtime in the summer. He agreed with the courts estimation that defendants take-home pay was $1,400 a month. Defendant and his spouse have four children. Defendant also owed $19,000 to the Internal Revenue Service (IRS) but he was working on an offer and compromise.

According to the probation report prepared in September 2005, more than seven months before the restitution/sentencing hearing, the family received public assistance, $473 in AFDC and $289 in food stamps, with estimated monthly expenses of $1,905. No mention was made of these figures at the restitution/sentencing hearing.

The trial court granted probation for a term of five years, on the condition that defendant serve six months in jail and pay $11,394.60 in victim restitution, a $220 restitution fine, a $220 restitution fine suspended unless probation is revoked, a $20 court security fee, a $25 administrative screening fee, a $240 probation report preparation fee, a $20 per month probation supervision fee, and a $35 collection fee. The court ordered that all the fines would be paid off over time at $325 per month. The court also ordered him to reimburse the county in the amount of $3,991.50 for the services of the defense accounting expert, at an additional amount of $25 each month. Restitution payments were to begin 45 days after defendants release from county jail unless granted work furlough. A repayment schedule for all fees and fines, including reimbursement for accounting services, totaled $350 per month. The monthly payment could be modified for payments to the IRS. Defendant was also ordered to submit an income and expense declaration every six months. The court authorized probation to make adjustments to the payment schedule based on defendants financial circumstances; defendant could challenge any denied adjustment in court.

DISCUSSION

Defendant contends the trial court erroneously ordered him to pay $3,991.50 for the defense accounting experts services in determining victim restitution. He argues that the court made no finding of an ability to pay and that the record shows he has no ability to pay that cost. Asserting the probation report failed to mention that he would be required to reimburse the county for the accounting services, defendant claims remand is required to determine his ability to reimburse the county for the accounting services. He does not challenge the courts order that he pay victim restitution, nor the courts finding of his present ability to pay victim restitution.

At a countys expense, an indigent criminal defendants right to the effective assistance of counsel includes the right to ancillary defense services. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 318-320.) Penal Code section 987.8, subdivision (g)(1) defines legal assistance as services provided by counsel and supportive services including, but not limited to, medical and psychiatric examinations, investigative services, expert testimony, or any other form of services provided to assist the defendant in the preparation and presentation of the defendants case. (Emphasis added; further section references are to the Penal Code unless otherwise specified.)

Section 987.8, subdivision (b) states that when a defendant has been provided legal assistance, the court, at the conclusion of the case, may make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.

Section 987.8, subdivision (e) states in part: 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 defendants financial ability.

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, and shall include, but not be limited to, all of the following: [] (A) The defendants present financial position. [] (B) The defendants reasonably discernible 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 discernible 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 defendants financial capability to reimburse the county for the costs of the legal assistance provided to the defendant. ( 987.8, subd. (g)(2).)

A trial courts finding of an ability to pay may be implied and will be upheld on appeal if it is supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 70-71, 76 (hereafter Phillips).)

Here, at the conclusion of the hearing on the amount of victim restitution to be awarded, the court impliedly found that defendant had the present ability to pay victim restitution in an amount exceeding $11,000. Defendant was employed in the construction field, earning $11 an hour with a 40-hour work week and possible overtime. The court ordered defendant to pay more than $11,000 in victim restitution, almost $4,000 to reimburse the county for the court-appointed accountant, and other fees and fines. All fees and fines were combined on the repayment schedule with installments of $350 per month with adjustment for payments to the IRS and possible modification every six months, depending on defendants income and expenses. Defendant does not challenge the courts ability-to-pay finding with respect to victim restitution, and substantial evidence supports the courts implied finding of an ability to reimburse the county for accounting services.

A separate hearing on defendants ability to repay the county for accounting services was not required. (See Phillips, supra, 25 Cal.App.4th at p. 70 [in considering a challenge to probation costs and claim that a separate hearing was required on a defendants obligation to pay costs of counsel, Phillips held: In sum, the language of section 1203.1b, considered in light of the sections clear legislative policy of conserving public funds, leads us to the conclusion that although section 1203.1b permits a separate hearing on a defendants ability to pay probation costs, the statute does not prohibit a sentencing court from conducting the hearing as part of the sentencing process. [Citation.] [] Similarly, the statute does not require a hearing at which evidence is formally presented if a defendant is amenable to an informal proceeding. On this latter point, we note that defendant does not claim he lacked notice of the time and place of the section 1203.1b hearing, nor did defendant voice any objection to the manner in which the hearing was conducted. Accordingly, we deem any objection to the lack of a formal hearing to be waived. Moreover, although some cases have invalidated orders for reimbursement based on the unsworn statements of adverse witnesses [citation], such a rule is inapplicable where the defendant himself is the source of the evidence, as was the case here.].) Moreover, as in the case of probation costs under section 1203.1b . . . , section 987.8 does not contain any language either mandating a separate hearing or prohibiting consideration of reimbursement for legal costs as part of the sentencing process. In addition, as with probation costs, a construction of section 987.8 which permits the court to take up the matter of legal costs at time of sentencing, is also consistent with the general purpose of the statute at issue, i.e., to conserve the public fisc. In sum, based on the language of the statute and sound policy considerations, we can perceive no valid basis for construing the statute as requiring the expenditure of additional public funds by requiring all of the interested parties to reconvene before the court at a later date. While this is clearly an option under the statute, section 987.8 by no means compels such a procedure. . . . (Id. at p. 76.)

Here, the trial court had just conducted a hearing on the amount of victim restitution and concluded that defendant had the present ability to pay the same. When the court ordered defendant to reimburse the county for accounting services, defendant did not object, claim surprise, request to reopen the hearing to present additional evidence, or ask for a continuance for additional preparation. Under the circumstances, a separate hearing was not required. For the same reason, defendants complaint that the probation report failed to mention he would be required to reimburse the county for the services of the court-appointed accountant is forfeited by his failure to object in the trial

court. (People v. Klockman (1997) 59 Cal.App.4th 621, 628; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395-1396.)

DISPOSITION

The judgment is affirmed.

SCOTLAND , P.J.

We concur:

NICHOLSON , J.

RAYE , J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.