P. v. Khouri

Filed 7/20/07 P. v. Khouri CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed in part, reversed in part with directions.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Riad Jacob Khouri appeals the trial courts order assessing him for the costs of a presentence probation investigation and attorneys fees. The Attorney General agrees that the order must be reversed and the matter remanded.

I.

Facts and procedural history

On two successive days in October 2005, defendant attempted to pass counterfeit $20 bills at a convenience store in San Bernardino. He was arrested shortly after the second attempt. At the time of his arrest defendant had the two counterfeit bills and $4,580.53 in legitimate money in his possession. On October 28, the district attorney filed a felony complaint charging him with two counts of forgery in violation of Penal Code section 476.^[1] The Advisement of Legal Rights form defendant signed at his arraignment included the following statement: [A]t the end of this case the Court, after a hearing, will decide if I have the ability to pay for all or a part of the cost of my [court]-appointed attorney and will order me to pay what I can afford.

On March 21, 2006, a jury found defendant guilty of both counts and determined that an allegation that he had suffered a prior strike conviction was true. ( 1170.12, subd. (c) & 667.5.) After trial, the court referred the case to the probation department for a presentence report. The report indicated that defendants brother had given him $5000 to work on his mothers house. He had used some of the money to pay for gas and had lent some to a friend. The probation officer recommended that he be ordered to pay a restitution fine of $1000, but that the court find him unable to reimburse the county for attorney fees or for the cost of the probation investigation and report.

On June 23, 2006, the trial court sentenced defendant to a total of five years four months in state prison and imposed a restitution fine of $600, to be paid out of prison earnings.

In the course of sentencing, the court started to make findings about defendants ability to pay costs: No present ability to reimburse the county. Then it stopped and queried, Did they take -- there was some real money, cash. Was that taken into evidence? []  . . .  [] How much money was there? Defense counsel answered, I think it was $5,300. I could double check. Without further ado, the court continued: The restitution fine is to be deducted from monies held by the sheriffs department. Moments later the court asked defense counsel how much time he had spent on the case. Counsel said he had not calculated his time but when pressed for his best estimate suggested 20 hours. The court then ordered that $2500 be paid to the Public Defenders office and an additional $400 be allotted for the presentence investigation and probation report -- all to be deducted from the monies in the sheriffs department. When defense counsel pointed out that the probation report indicated that his client did not have the ability to pay attorney fees, the court responded, I know. But I found, luckily, that he has that $5000. But if you look at the report, as I understand it, that money was his brothers money, not his money, said defense counsel.^[2] His brother was helping him out. I didnt know if the money was returned to his brother or not. The court replied only The courts order is the order. There was no more discussion of defendants ability to pay.

This appeal followed.

II.

Discussion

As the parties acknowledge, a court may order a defendant -- who has the financial ability to do so -- to pay for defense attorney fees and for costs associated with the production of a presentence probation report. ( 987.8, subd. (b); 1203.1b, subd. (a).) In both instances, however, the court must review evidence of actual costs and determine the defendants ability to pay them before making the assessment. ( 987.8, subd. (b); 1203.1b, subd. (a); People v. Poindexter (1989) 210 Cal.App.3d 803, 810-811.)

Generally, recommendations regarding a convicted defendants ability to pay for a presentence probation report are made by the probation officer. (1203.1b, subd. (a).) However, unless he knowingly and intelligently waives the right, a defendant is entitled to an evidentiary hearing on the matter and a determination by the court. (1203.1b, subd. (a); People v. Hall (2002) 103 Cal.App.4th 889, 892-893.) At the hearing, the defendant must be given the opportunity to be heard in person, to present witnesses and documentary evidence, to confront and cross-examine adverse witnesses, to a disclosure of the evidence against him, and to a written statement of the findings of the court. (1203.1(b), subd. (b)(1); People v. Poindexter, supra, at pp.809-810.) If the courts determination of the defendants ability to pay is different from the recommendation made by the probation officer, it must state on the record the reasons for its orders. (1203.1(b), subd. (b)(4).)

Similarly, a defendant must be provided the same procedural safeguards before fees for the cost of defense counsel or other legal assistance may be imposed. ( 987.8, subds. (a), (b) & (e)(1-5).) There is a presumption under section 987.8 that a defendant sentenced to prison does not have the financial ability to reimburse the county for the costs of his defense unless the trial court finds unusual circumstances as provided by subdivision (g)(2)(B) of the statute. (People v. Flores (2003) 30 Cal.4th 1059, 1068.) Without a hearing, a trial court cannot determine if a defendants circumstances are unusual. (Ibid.)

Here, defendant was given neither notice of the courts intent to levy costs and fees nor a hearing regarding his ability to pay them. The form he signed at his arraignment told him only that the court might, after a hearing, decide to assess him based on its determination of his ability to pay. Since there was no hearing, however, there was no evidence of the actual amounts of the costs, of defendants ability to pay

them, or of how his financial circumstances compared to the circumstances of most other defendants sentenced to prison. It is true, as the trial court emphasized, that defendant had a large amount of cash on him when he was arrested, but the only evidence regarding title to that money was his statement to the probation officer that his brother had given it to him to work on their mothers house. And there was no evidence that defendant had any other property or bank accounts or was earning money at the time of his arrest.

Even assuming defendant had some ability to pay, there was no proper information about the actual costs of preparing the presentence report or about the amount to be levied for attorneys fees. The probation officer recommended that the court find defendant did not have the ability to pay for either. And in response to the courts insistence that he provide it with his best estimate of the hours he had put in on the case, defense counsel merely guessed that he had spent 20 hours. The courts prompt imposition of $2500 for attorneys fees ($125 per hour) that followed appears to have been pulled out of thin air.

We appreciate its desire to collect reimbursement for the benefits he received from what appeared to be defendants significant stash of cash, but find we must remand  . . . so that the trial court may, after having conducted a hearing into the question, make an informed decision. (People v. Flores, supra, at p. 1069.) The relevant statutes and the principles of due process require this much.

III.

disposition

That portion of the judgment ordering the attorneys fees, restitution fine, and cost of the probation report to be deducted from monies held by the sheriff is stricken. The case is remanded to the trial court with directions to institute proceedings in accordance with Penal Code sections 987.8, 1203.1, and 1203.1b, to determine the actual costs of defendants attorneys fees and the probation report and his ability to pay all or part of them.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

KING

J.

MILLER

J.

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

^[2] The transcript indicates that a Mr. Spears told the court that the money belonged to defendants brother, but the attribution appears to be a clerical error. We find no record of a person by this name being present in court and assume the information came from defense counsel.