Filed 1/14/15 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
THE PEOPLE,
Plaintiff and Respondent, E059726
v. (Super.Ct.No. FVA1301179)
JIMMY NERI HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. Affirmed in part; reversed in part with directions.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Jimmy Neri Hernandez is on probation after pleading
guilty to committing corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd.
1
(a))1 for hitting his girlfriend with a tire iron or jack. Defendant challenges only the
court’s order that he pay a $250 appointed counsel fee. As discussed below, we find the
order is not supported by substantial evidence and remand to the superior court to provide
notice and a hearing regarding defendant’s ability to pay the costs of his defense.
FACTS AND PROCEDURE
On July 5, 2013, defendant and his girlfriend of seven years got into an argument
and physical fight in a parked car when she told him she wanted to end their relationship.
After the two exited the car, defendant took a car jack or tire iron from the trunk of the
car and began to swing it around. The woman put up her arms in a defensive move.
Defendant struck the woman on the right arm, with the weapon causing a two-inch
laceration.
On July 8, 2013, the People filed a felony complaint alleging defendant committed
corporal injury on a spouse or cohabitant and assault with a deadly weapon (§ 245, subd.
(a)(1)).
On August 13, 2013, defendant pled guilty to the corporal injury charge.
On September 11, 2013, the trial court granted probation on condition defendant
serve 365 days in jail. Defendant was also ordered to pay a number of fines, assessments
and fees, including a $250 appointed counsel fee.
This appeal followed.
1 All section references are to the Penal Code unless otherwise indicated.
2
DISCUSSION
Defendant’s sole argument on appeal is that the trial court erred when it ordered
him to pay the $250 appointed counsel fee without holding a hearing or making a finding
that he has the ability to pay the fee, and that the order is not supported by substantial
evidence. The People respond that defendant forfeited the right to raise this issue on
appeal because he did not object to the fee at the sentencing hearing.
No Forfeiture
The question of whether defendant forfeits the right to raise this issue on appeal by
failing to raise it below is difficult and unsettled; it is currently before the Supreme Court
in People v. Aguilar (2013) 162 Cal.App.4th 1094, review granted November 26, 2013,
S213571. Hence, we will assume, without deciding, that defendant did not forfeit the
issue in this case.
Substantial Evidence
“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.” (§ 987.8, subd. (b).)
3
“‘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 to him or her, and shall
include, but not be limited to, all of the following: [¶] (A) The defendant’s present
financial position. [¶] (B) The defendant’s reasonably discernible future financial
position. In no event shall the court consider a period of more than six months from the
date of the hearing for purposes of determining the defendant’s reasonably discernible
future financial position. . . . [¶] (C) The likelihood that the defendant shall be able to
obtain employment within a six-month period from the date of the hearing.” (§ 987.8,
subd. (g)(2).) “At a hearing, the defendant shall be entitled to, but shall not be limited to,
all of the following rights: [¶] (1) The right to be heard in person. [¶] (2) The right to
present witnesses and other documentary evidence. [¶] (3) The right to confront and
cross-examine adverse witnesses. [¶] (4) The right to have the evidence against him or
her disclosed to him or her. [¶] (5) The right to a written statement of the findings of the
court.” (§ 987.8, subd. (e).)
We review a court’s order requiring a defendant pay the costs of his/her public
defender for substantial evidence. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217.)
Where a court fails to hold the proper hearing or make the necessary finding of ability to
pay, the preferred solution is to remand the case for a new hearing on the matter. (People
v. Flores (2003) 30 Cal.4th 1059, 1068-1069; People v. Prescott (2013) 213 Cal.App.4th
1473, 1476; People v. Verduzco (2012) 210 Cal.App.4th 1406, 1420-1421.)
“The court’s finding of the defendant’s present ability to pay . . . may be implied
. . . . [Citation.] But any finding of ability to pay must be supported by substantial
4
evidence. [Citations.]” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398,
disapproved on other grounds in People v. McCullough (2013) 56 Cal.4th 589, 599.)
“‘“Substantial evidence includes circumstantial evidence and any reasonable inferences
drawn from that evidence. [Citation.]” [Citation.] We “‘“presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.”’ [Citation.]” [Citation.]’ [Citation.]” (People v. Lopez (2013) 56 Cal.4th
1028, 1069.)
Here, the trial court imposed the fee without discussion. The probation report
indicates defendant was unemployed, had no assets, and had $20,000 in debts. Defendant
was going to spend the next 365 days in jail, minus 69 days credit for time served and 69
days for section 4019 conduct credits. This means that defendant was to be incarcerated
for 227 days after sentencing. Considering both defendant’s “present financial condition”
(§ 987.8, subd. (g)(2)(A)) and his “reasonably discernible future financial
position . . . no . . . more than six months from the date of the hearing,” (§ 987.8, subd.
(g)(2)(B)) we agree with defendant that substantial evidence does not support the order
that he pay counsel fees of $250.
DISPOSITION
The imposition of the $250 counsel fee pursuant to section 987.8 is reversed. The
matter is remanded to the superior court to provide proper notice and a hearing regarding
defendant’s ability to pay the costs of his defense. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
5
GAUT
J.*
We concur:
RAMIREZ
P. J.
MILLER
J.
*Retired Associate Justice of the Court of Appeal, Fourth Appellate District, Division
Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
6