Filed 12/13/13 P. v. Snow CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A137497
v.
DENNIS ROBERT SNOW, (Contra Costa County
Super. Ct. No. 4-175130-4)
Defendant and Appellant.
Dennis Robert Snow pleaded no contest to two felony counts. The trial court
suspended imposition of sentence, placed defendant on three years of formal probation,
and ordered him to reimburse the county in the amount of $200 for public defender
services. Defendant contends the attorney fee order was improperly imposed without any
substantial evidence he has the ability to pay the $200. We find the order was properly
imposed subject to a later determination of defendant’s ability to pay. However, we
modify the felony order of probation to make it consistent with the trial court’s oral
pronouncement and its separate written order on attorney fees. As so modified, we affirm
the judgment.
I. BACKGROUND
On November 20, 2012, at 2:20 a.m., defendant was stopped by the police after
committing several Vehicle Code violations. The vehicle defendant was driving was
discovered to have been stolen. A search of the vehicle uncovered 2.47 grams of
methamphetamine.
Defendant was charged by felony complaint with vehicle theft (Veh. Code,
§ 10851, subd. (a); count one) and possession of a controlled substance (Health & Saf.
Code, § 11377, subd. (a); count two). He pleaded no contest to both counts. That same
day, the court suspended imposition of sentence and placed defendant on three years of
formal probation, conditioned on serving a jail term of 270 days with credit for time
served. The court conditionally ordered that defendant reimburse the county in the
amount of $200 for public defender services as follows: “[The court:] As far as the
attorney’s fees, I am assessing $200 for the public defender. We do have them place a
means of having a hearing on that and actually appearing in front of a court on it. Printed
on the forms we have, we complied with everything required by that case, so that will be
assessed. It’s up to [defendant] to take any action if he wants to challenge that one.
[¶] [Defense counsel]: Your Honor, just for the record, I would be objecting to the
attorney fees.”
Defendant timely appealed from his sentence.
II. DISCUSSION
Defendant contends the order assessing him $200 for his court-appointed counsel
fees must be reversed because there is no evidence showing he had the ability to pay
those fees either at the time of sentencing or after he was released from custody.
According to defendant, “there must be substantial evidence and a finding of an ability to
pay before the court may order payment.” He states he did not have to prove inability to
pay.
Defendant notes nothing in the probation report suggests he had assets or income.
In fact, it shows he was unable to work because he was in jail at the time of sentencing.
The court ordered him to serve 148 more days (net of presentence credits). At
sentencing, defendant explained he had quit his job a few weeks before his arrest on
account of having a rod in his leg which caused him pain.1 He stated he would be
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This information was elicited on voir dire by the court after defense counsel
asked for an immediate determination of defendant’s ability to pay a mandatory
restitution fee and a criminal justice administration (CJA) fee. The court declined to find
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applying for disability and food assistance and did not know if he would be able to work
after his release. Having pleaded no contest to two felonies, defendant contends his
ability to find employment would be seriously impeded regardless of his disability status.
The flaw in defendant’s argument is that the trial court did not in fact make an
unconditional order assessing $200 in attorney fees against him. It ordered him to appear
before the probation collection unit within 20 working days after his release from custody
for a determination of the amount, if any, of the attorney fees he could pay, which he had
the right to challenge by requesting a court hearing. That procedure is consistent with the
statute authorizing such assessments, Penal Code section 987.8.
Penal Code section 987.8 applies to any proceeding in which the defendant is
represented by a public defender or appointed counsel. (Pen. Code, § 987.8, subd. (i).)
Subdivision (b) of the statute provides in relevant part that in “any case in which a
defendant is provided legal assistance, . . . upon conclusion of the criminal proceedings in
the trial court, . . . 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.” (Italics added.) The
statute further provides, “[i]f the defendant, after having been ordered to appear before a
county officer, has been given proper notice and fails to appear before a county officer
within 20 working days, the county officer shall recommend to the court that the full cost
of the legal assistance shall be ordered to be paid by the defendant.” (Pen. Code, § 987.8,
subd. (d).) Finally, “[i]f 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
defendant was unable to pay the restitution fine, citing the possibility defendant could be
employed again following his release. The court waived the CJA fee due to
noncompliance with the paperwork requirements for that fee.
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reasonable and compatible with the defendant’s financial ability.” (Pen. Code, § 987.8,
subd. (e)(5).)
Here, the trial court signed a written order on a preprinted form stating defendant
was ordered to report to the county probation collection unit within 20 working days after
his release from jail. The order stated a county officer would interview defendant at that
time “to determine if you are able to pay all or part of the services of the attorney
appointed by the Court to handle your case. If the Probation Collection Unit finds that
you are able to pay a certain amount, and you do not agree, you have the right to a
hearing in this Court to decide what amount, if any, you must pay.” The order informed
defendant he had a right to be heard in person at the hearing, to present witnesses and
other documentary evidence, to confront and cross-examine adverse witnesses, and to
have the evidence against him disclosed to him. Finally, the order stated that if defendant
did not appear at the probation collection unit as ordered, he waived his right to a hearing,
and the court would enter a judgment against him ordering him to pay for his attorney’s
services. Defendant’s name is handwritten on the order acknowledging its receipt and
stating that he understood if he did not report as ordered the court would thereafter enter
judgment against him for the “TOTAL COSTS OF LEGAL SERVICES OF [HIS]
ATTORNEY.”
The procedure followed by the trial court complies with Penal Code section 987.8.
The statute does not require the court to give notice and hold a hearing regarding a
defendant’s ability to pay before assessing a dollar amount for the services of appointed
counsel. It specifically allows the court to have a designated county agency first
determine whether the defendant is able to pay the assessed amount, subject to the
defendant’s right to challenge the county agency’s determination before the court if he or
she disagrees with it. (Pen. Code, § 987.8, subds. (b), (d).) The trial court’s attorney fee
order in this case, including the order referring defendant to the collection unit and his
acknowledgment of it, complies with these procedures. However, the felony order of
probation fails to reflect the conditional nature of the trial court’s order on attorney fees,
as expressed in the trial court’s oral pronouncement at sentencing and its written order
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referring defendant to the probation collection unit for a determination of his ability to
pay. The felony order of probation should therefore be modified to state that defendant
was referred to the probation collection unit to determine his ability to pay attorney fees.
Accordingly, we will amend the order of probation in this one respect, and otherwise
affirm the judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185–187 [appellate court
has inherent power to correct clerical error on its own motion].)
III. DISPOSITION
The felony order of probation is modified to add the sentence: “Defendant is
referred to the Probation Collection Unit for a determination of his ability to pay attorney
fees in the amount of $200.” As so modified, the judgment is affirmed.
_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Sepulveda, J.*
*
Retired Associate Justice of the Court of Appeal, First Appellate District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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