Aftеr snatching a woman's bag, defendant Gildardo Rodriguez was convicted of
PROCEDURAL BACKGROUND
By information filed September 13, 2017, defendant wаs charged with one count of second degree robbery ( Pen. Code, § 211 ; count 1).
After a bifurcated trial at which he did not testify, a jury convicted defendant of the sole charged count. Defendant waived jury trial on the prior-conviction allegations and admitted them.
The court sentenced defendant to an aggregate term of nine years in state prison-the middle term of three years for count 1 ( § 211 ) plus consecutive one-year terms for six of the prison priors (§ 667.5, subd. (b)). The court struck the remaining priors. The court imposed a $ 300 restitution fine (§ 1202.4, subd. (b)), a $ 40 court operations assessment (§ 1465.8), a $ 30 conviction assessment ( Gov. Code, § 70373 ), and $ 1,185 in attorney's fees (§ 987.8), and imposed and stayed a $ 300 parole
Defendant filеd a timely notice of appeal and we appointed counsel to represent him. On July 12, 2018, appointed counsel filed a brief in which he raised no issues and asked us to review the record independently. ( People v. Wende (1979)
After reviewing the record and trial exhibits, we asked appellate counsel and the People to provide us with supplemental briefing on whether the court erred by ordering defendant to reimburse the county for attorney's fees without first evaluating his ability to pay.
DISCUSSION
1. Section 987.8
Both the Sixth Amendment to the federal Constitution and article I, section 15, of the California Constitution require the state to provide indigent criminal defendants with attorneys free of charge. ( Gideon v. Wainwright (1963)
Before the public defender's office is appointed as counsel, it must verify the defendant's indigence by assessing his income, expenses, debt, and other relevant financiаl data. ( Gov. Code, § 27707.) The final determination of indigence is made by the court. (Ibid. ; People v. Vaughn (1981)
But the Legislature has also recognized that a defendant's financial circumstances may change. Section 987.8, therefore, allows a court to order a defendant to reimburse the gоvernment for the cost of court-appointed counsel, medical and psychiatric experts, investigative services, and expert witnesses. (§ 987.8, subd. (c)(1).) Courts may impose such fees only on defendants who can pay them. (Id. , subd. (b).)
Before ordering a defendant to reimburse the govеrnment for these costs, the court must satisfy section 987.8's procedural requirements:
Second, after criminal proceedings are completed or counsel withdraws, the court may order reimbursement only after giving the defendant notice and an opportunity to be heard on the issue of his ability to pay. (§ 987.8, subds. (b), (d).) At this hearing, the defendant has the right to be heаrd in person (id ., subd. (e)(1)(A)), to present witnesses and documentary evidence (id ., subd. (e)(1)(B)), to confront and cross-examine adverse witnesses (id ., subd. (e)(1)(C)), to disclosure of evidence against him (id ., subd. (e)(1)(D)), and to a written statement of the court's findings (id ., subd. (e)(1)(E)).
In considering the defendant's ability to pay, the court may consider both the defendant's present financial position and his reasonably discernible financial position during the following six months. (§ 987.8, subd. (g)(2).) But there's an important exception: If the defendant is sentenced to prison or to county jail for more than 364 days, he "shall be determined not to have a reasonably discernible future financial ability to reimburse" defense costs "[u]nless the court finds unusual circumstances." (Id ., subd. (g)(2)(B).)
Put another way, there is "a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs." ( People v. Flores (2003)
These procedural protections are not absolute, however. When a defendant receives constitutionally adequate notice, his failure to demand a hearing on his ability to pay forfeits the issue on appeal-at least when he is granted probation. ( People v. Aguilar (2015)
Here, the court requested a presentence report from the probation department, but
The first time anyone raised the possibility that defendant might have to pay attorney's fees was when the court imposed them at sentencing alongside two mandаtory fees: "ICNA fee of $ 30, Immediate Court Necessity Act, and as well as a court security fee of $ 40. And I'm assessing attorney's fees in the appropriate amount for the fine services of the public defender's office. That would be in the amount of $ 1,185."
The clerk then asked, "Any credits?" Thе court asked defense counsel for her calculation of defendant's pretrial custody credits.
Defense counsel did not object.
3. Defendant did not forfeit his challenge under Aguilar .
The People contend defendant has forfeited his challenge to the reimbursement order. ( Aguilar , supra ,
Aguilar involved the imposition of probation-related costs under section 1203.1b and an order for reimbursement of appointed counsel fees under section 987.8. ( Aguilar , supra ,
The Supreme Court concluded that the defendant forfeited the argument he lacked the ability to pay these costs and fees, and that forfeiture was especially appropriate because the defendant had-and would continue to have-multiple opportunities to assert his indigence. ( Aguilar , supra ,
More importantly for our purposes, in Aguilar , the defendant received notice and the opportunity to request a hearing. (See People v. Poindexter (1989)
4. Remand is not required.
The People argue that if defendant preserved this claim, we should remand the matter for a hearing to determine his ability to pay attorney's fees and costs. We decline to do so.
First, although the People arе correct that the Supreme Court's decision in Flores authorizes reviewing courts to remand for belated ability-to-pay hearings, Flores did not hold that remand was required. ( Flores , supra ,
Second, in Flores , there was some reason to believe remand would not be an idle act. According to the presentence report in that case, defendаnt was " 'stable and employed' " and possessed $1,500 worth of jewelry. ( Flores , supra , 30 Cal.4th at pp. 1068-1069,
Here, defendant has been in prison since he was sentenced in January 2018. Even assuming prison wages are relevant, there is no evidence paid work has been made available to him. (See
Moreover, if defendant has secured a paying job, it is unlikely that he has accumulated enough assets in prison thus far-or will accumulate enough assets in the six months after remand-to reimburse the county for his legal representation. (See § 987.8, subd. (g)(2) [ability to pay based on defendant's current financial position and reasonably discernable position within six months].)
The inmate minimum wage in California prisons is $ 0.08 per hour and $ 12 per month. (Cal. Dept. of Corrections and Rehabilitation, Operations Manual (Jan. 1, 2019) § 51120.6.) Inmate technicians, like bakers, barbers, firefighters, and heаvy-equipment operators, may earn between $ 0.15 and $ 0.24 per hour ( $ 23- $ 36 per month). (Id ., §§ 51120.6-51120.7.) Those with special skills, such as mechanics, dental technicians, x-ray technicians, and welders can earn between $ 0.19 and $ 0.32 per hour ( $ 29- $ 48 per month). (Ibid .) But there is no evidence that defendant qualifies fоr this more desirable, higher-paying work. (See 15 Cal. Code Regs. § 3041.1 [eligibility for paid work].)
In addition, defendant's $ 300 restitution fine must be paid first. (§ 1203.1d [payments allocated to restitution fine before reimbursement orders].) The California Department of Corrections and Rehabilitation (CDCR) will collect direсt victim restitution and the restitution fine by deducting up to 50 percent of defendant's trust account deposits, including any prison wages he may earn. (§ 2085.5, subds.
Furthermore, defendant spent the 239 days-about eight months-before sentencing in pretrial custody and most of the 20 years before that in and out of prison. There is no evidence he accumulated any savings during that time.
DISPOSITION
The judgment is modified to strike the order that defendant pay $ 1,185 in attorney's fees under Penal Code section 987.8. In all other respects, the judgment is affirmed.
Upon issuance of the remittitur, the trial court is directed to amend the minute order of January 12, 2018, and the abstract of judgment to reflect the judgmеnt as modified and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
Notes
Because the facts of defendant's offense are not relevant to the issue on appeal, we limit our background discussion to the procedural history of the case.
All undesignated statutory references are to the Penal Code.
One of the prison priors was later stricken as duplicative.
Because we resolve this issue on notice grounds, we do not reach the question of whether, under Aguilar , a defendant sentenced to state prison or more than 364 days in county jail must object to preserve a claim that he lacks the ability to pay attorney's fees.