P. v. Arellano

Filed 10/12/07 P. v. Arellano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Milao Rios Arellano pled no contest to robbery of an inhabited dwelling (Pen. Code, 213, subd. (a)(1)(A))[1] committed in concert with a codefendant on September 6, 2005, and being a felon in possession of a firearm ( 12021, subd. (a)(1)) that same day. He also admitted the allegation that he personally used a handgun in the commission of the robbery. ( 12022.5, subd. (a).) In exchange, the prosecutor agreed to a top and bottom sentence of six years in state prison. No agreement as to a restitution fine was stated. On appeal, defendant challenges the amount of the restitution fine the court imposed, and declares the order to pay attorney fees was unsupported by substantial evidence and must be stricken.

There is no statement of facts in the briefs and there was no preliminary hearing or statement of facts in the waived referral probation report. The information to which defendant pled guilty accuses him of using a firearm to take marijuana plants, miscellaneous property, and money from the victim in his home in San Jose by means of force or fear while defendant acted in concert with others, and that defendant possessed a firearm that day after having been convicted of felony possession of marijuana for sale.

When defendant pled guilty, the court advised defendant that he would be ordered to pay any actual restitution to any victim in this case as well as a Restitution Fund fine of a minimum of $200, maximum of $10,000. You could be ordered to pay a General Fund fine up to $10,000. I wont be ordering a General Fund fine. Defendant answered no to the question whether anyone had made any promises to him in exchange for the plea that had not been stated on the record. In addition, the court stated, You will have to fill out a Statement of Assets form, tell what you own under penalty of perjury so we can determine your ability to pay these fines and fees. Do you understand your financial considerations, sir? Defendant answered Yes. The prosecutor had not mentioned a restitution fund fine or attorney fees when he recited the plea bargain on the record. The probation report recommended a $2,400 restitution fund fine and unspecified attorney fees if appropriate.

At sentencing the court imposed a $2,400 restitution fund fine ( 1202.4, subd. (b)) and stayed a fine in the same amount pursuant to section 1202.45. The court ordered $200 in attorney fees.

ISSUES ON APPEAL

Defendant raises two issues: he asserts the restitution fund fine must be reduced to $200 because it exceeds the punishment contemplated by the plea bargain. Second, the attorney fee order must be stricken because the court never made a finding of an ability to pay and there was insufficient evidence that defendant had the present ability to pay.

DISCUSSION

Defendants restitution fund fine issue was recently settled by People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). Crandells $2,600 restitution fine had not been mentioned by the prosecutor when he recited the parties plea agreement (id. at p. 1308), although the trial judge informed Crandell that he would have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000, and received a negative answer from Crandell when he was asked if anyone made any other promises to you, Mr. Crandell, aside from the number of years Crandell would have to serve in state prison. (Id. at p. 1305.) Our situation was the same. After reciting that the plea agreement contemplated a sentence of four years, eight months, defendant answered no when asked if anyone made any other promises in regard to the plea. In light of these circumstances, it is clear that when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed. (Id. at p. 1310.)

As in Crandell, because the record demonstrates that the parties intended to leave the amount of defendants restitution fine to the discretion of the court, defendant is not entitled to relief. (Crandell, supra, 40 Cal.4th at p. 1309.) In our case as well as in Crandell, [t]hese facts distinguish the case from [People v.] Walker [(1991) 54 Cal.3d 1013, 1018-1019)], where the court advised the defendant only that the maximum penalties provided by law for his offense included a fine of up to $10,000 and obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the courts discretion. (Id. at pp. 1309-1310.)

As for the attorney fee order, section 987.8 authorizes the court to order attorney fees in any case in which a defendant is provided by legal assistance through counsel appointed by the court, after notice and a hearing to determine the present ability of the defendant to pay all or a portion of the cost of attorney services. 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 and the court must consider the defendants present financial position, his or her reasonably discernible future financial position considering a period of no more than six months from the date of the hearing, the likelihood the defendant will be able to secure employment within a six-month period from the date of the hearing, and any other factors which may bear on the defendants ability to reimburse the county. 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. ( 987.8, subd. (g)(2)(B).)

Here, defendant received notice that attorney fees were contemplated at the change of plea hearing and via the probation report which recommended $2,400 for the restitution fund fine and unspecified attorney fees if appropriate. There was no completed financial statement in the record. At the sentencing hearing, discussion of the subject was perfunctory: THE COURT: And are you privately retained? [] [DEFENSE COUNSEL]: Actually no, Your Honor. [] THE COURT: Legal Aid? [] [DEFENSE COUNSEL]: Yes, Your Honor. [] THE COURT: Two hundred dollars attorney fees are imposed at this time. And remanded forthwith. Good luck to you, sir. Thank you very much.

Defendant did not waive any finding of ability to pay by not objecting when the award was made as the People claim. As this court has stated, We recognize that such a view has been adopted by published authority, but we find that authority distinguishable, and do not believe it can be rationally extended to bar objections to an order for reimbursement of counsel fees, for the reason that unless the defendant has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsels failure to object to an order reimbursing his own fees. (People v. Viray (2005) 134 Cal.App.4th 1186, 1214.)

Furthermore, there was no evidence of either the amount of attorney fees owed or defendants ability to pay that could be gleaned from this record. What we know is that defendant was sentenced to prison for six years and he had a wife and two children for whose sake sentencing was put over until after Christmas. Under these circumstances, it does not appear that defendants reasonably discernible future financial position considering a period of no more than six months from the date of the hearing supports a finding of ability to pay and we will order the attorney fee order stricken. (People v. Vy (2004) 122 Cal.App.4th 1209, 1228.)

DISPOSITION

The order granting attorney fees pursuant to Penal Code section 987.8 is hereby ordered stricken. The clerk of the superior court is ordered to prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further statutory references are to the Penal Code unless otherwise stated.