P. v. Hay

Filed 3/6/07 P. v. Hay CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Carol H. Rehm, Jr., Judge. Affirmed in part; reversed and remanded in part.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Joe Hay pleaded nolo contendere to a single count of selling two grams of cocaine base. He was sentenced to the high term of five years,[1]but was placed on probation. He appeals, contending the assessment of various fees and costs, discussed below, was erroneous. We remand with directions to correct those errors and otherwise affirm the judgment. In light of the plea and the issues raised, we do not summarize the facts showing the commission of the offense in the afternoon of October 14, 2005, in Los Angeles.[2]

DISCUSSION

1. The Award of Attorney Fees Is Vacated and the Matter Is Remanded for Proceedings Consistent with Penal Code Section 987.8, Subdivision (b).

Appellant contends, and the Attorney General concedes, that the court imposed payment of attorney fees in the amount of $1,054.84 as a condition of probation. Imposing reimbursement of attorney fees as a condition of probation is absolutely prohibited in California courts. (People v. Faatiliga (1992) 10 Cal.App.4th 1276, 1280.) The Attorney General agrees that this requires an amendment of the terms and conditions of probation by deleting the payment of attorney fees as one of those conditions.

In assessing that payment of attorney fees, the trial court stated: You must pay attorney fees in the amount of $1,054.84 pursuant to Penal Code section 987.8.^[[3]^] If you believe you do not have the financial ability to pay those attorney fees, you have the right to see the financial evaluator. His name is Benjamin Martinez. He is located in this courthouse, on the 11th floor, in room 304. [] If you and Mr. Martinez disagree about your financial ability, you will ultimately have a right to an ability to pay hearing in this court.

The record does not disclose one way or the other whether appellant ever went to see Mr. Martinez, or, if he did, what the outcome of that meeting was.

While Penal Code section 987.8, subdivision (b) (Pen. Code, 987.8(b)) empowers the trial court to 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, the same provision makes it incumbent upon the court, and not the designated county officer, to make the determination of the present ability of the defendant to pay all or a portion of the cost thereof. The record before us does not contain such a determination.

We do not agree with the Attorney General that appellants apparent failure to meet with Mr. Martinez operates as a waiver of his right to have the trial court determine appellants ability to pay. First, we do not know whether appellant met, or did not meet, with Mr. Martinez. Second, Penal Code section 987.8(b) explicitly requires notice of a hearing to determine ability to pay. (See fn. 3, ante.) No such notice was given, and no such hearing was held; the trial court simply announced its decision. We appreciate that the trial court left the door open on the question of appellants ability to pay, and gave appellant clear directions whom he should consult with. Well meant as this was, it is not a substitute for the noticed hearing required by Penal Code section 987.8(b), and a judicial determination based on that hearing.

We disagree with the Attorney Generals contention that the order of the court on the matter of fees was not final and therefore was not appealable. The trial court did make an award of attorney fees that the Attorney General now claims should be enforced; from a pragmatic perspective, and given the Attorney Generals position, the fee order is final.

Accordingly, we remand the matter of attorney fees for proceedings consistent with Penal Code section 987.8(b) and this opinion.

2. The Order To Pay Probation Administration Fees Under Penal Code Sections 1001.15 and 1001.3 Is Vacated.

The trial court stated, that as a condition of probation, appellant must pay probation administration fees as directed by the probation officer pursuant to Penal Code section 1001.15 and Penal Code section 1001.3.

The Attorney General concedes that this order is erroneous. Penal Code section 1001.3 has been repealed and Penal Code section 1001.15 provides for fees for enrollment in a diversion program. There is no evidence that appellant was sentenced to a drug treatment program.

Accordingly, this order is vacated and set aside.

3. The Order To Pay Costs of Probation Fees Under Penal Code Section 1203.1 Is Vacated.

The court stated that, as a condition of probation, appellant must pay cost of probation services pursuant to Penal Code section 1203.1 through your probation officer as directed.

The parties agree that the reference to section 1203.1 is erroneous and that the correct reference is Penal Code section 1203.1b.

The payment of costs of probation under Penal Code section 1203.1b may not be imposed as a condition of probation. (People v. Bennett (1987) 196 Cal.App.3d 1054, 1056-1057.)

Penal Code section 1203.1b sets forth the procedures to be followed in requiring a defendant to pay the costs of probation. The initial determination of the costs is made by the probation officer, and the defendant then has the right to ask for a judicial hearing on the costs assessed. After being fully advised, the defendant may waive that hearing.

The courts order stating that appellant is to pay cost of probation services pursuant to Penal Code section 1203.1 through your probation officer as directed is vacated and set aside. First, the reference to section 1203.1 is in error. Second, the payment of costs of probation under Penal Code section 1203.1b may not be imposed as a condition of probation. Third, a defendant may not be ordered to pay the costs of probation as found by the probation officer. Penal Code section 1203.1b clearly provides that a defendant may request a judicial hearing once the probation officer has determined the costs. The trial court must determine in that hearing whether the defendant has the ability to pay the costs assessed by the probation officer. (Pen. Code 1203.1b, subd. (b).)

Accordingly, the matter of probation costs is remanded for proceedings consistent with Penal Code section 1203.1b.

4. The Order To Pay a Probation Revocation Fine of $200 Under Penal Code Section 1202.4, Subdivision (f)(11) Is Corrected To Refer to Penal Code Section 1202.44.

The trial court ordered the payment of a $200 probation revocation fine, and suspended that order pending any violation of probation. The courts order refers to Penal Code section 1202.4, subdivision (f)(11).

The parties agree that the reference should be to Penal Code section 1202.44, and not to Penal Code section 1202.4, subdivision (f)(11).

DISPOSITION

The case is remanded with directions: (1) to conduct proceedings regarding the imposition of attorney fees consistent with Penal Code section 987.8(b) and this opinion; and (2) to conduct proceedings regarding the costs of probation consistent with Penal Code section 1203.1b. The orders to pay probation administration fees under Penal Code section 1001.15 and 1001.3 and costs of probation under Penal Code section 1203.1 are vacated and set aside. The stayed order to pay a probation revocation fine is corrected to refer to Penal Code section 1202.44. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P. J.

BOLAND, J.

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[1] Appellant was charged with four prior felonies and with failing to have remained free of prison custody during the five years preceding the commission of the instant offense.

[2] Police officers observed appellant making a sale of cocaine base on San Julian Street between 6th and 7th Streets.

[3] Penal Code section 987.8, subdivision (b) provides: 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, or upon the withdrawal of the public defender or appointed private counsel, 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, hold one such additional hearing within six months of the conclusion of the criminal proceedings. 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.