Filed 4/23/19

                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION THREE


THE PEOPLE,                         B287544

     Plaintiff and Respondent,      Los Angeles County
                                    Super. Ct. No. KA115341
     v.

GILDARDO RODRIGUEZ,

     Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Gilbert M. Lopez, Judge. Affirmed as modified
with directions.
      Carlos Ramirez, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
                            INTRODUCTION

      After snatching a woman’s bag, defendant Gildardo
Rodriguez was convicted of one count of second degree robbery
and sentenced to nine years in prison. Defendant contends the
court erred by ordering him to pay $1,185 to reimburse the
county for his public defender without first evaluating his ability
to pay. Although defendant failed to object below, we conclude the
issue was not forfeited because defendant lacked the required
notice. We modify the judgment to strike the attorney’s fees order
and affirm as modified.

                  PROCEDURAL BACKGROUND1

      By information filed September 13, 2017, defendant was
charged with one count of second degree robbery (Pen. Code,
§ 211; count 1).2 The information also alleged 10 prison priors
(§ 667.5, subd. (b)).3 He pled not guilty and denied the
allegations.
      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


1Because 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.
2 All   undesignated statutory references are to the Penal Code.
3   One of the prison priors was later stricken as duplicative.




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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 revocation
restitution fine (§ 1202.45). Defendant was awarded 275 days of
pretrial custody credit.
       Defendant filed 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) 25 Cal.3d 436,
443.)
       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) 372 U.S. 335; In re
Johnson (1965) 62 Cal.2d 325, 329–330.)
       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 financial data. (Gov. Code,
§ 27707.) The final determination of indigence is made by the
court. (Ibid.; People v. Vaughn (1981) 124 Cal.App.3d 1041, 1046.)
As such, public defender clients, all of whom have already been




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financially evaluated and found indigent by the court, are legally
entitled to a presumption of indigence for most purposes. (See,
e.g., Vaughn, at pp. 1045–1046 [defendant, a public defender
client, was entitled to a free trial transcript].)
       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 government
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 government
for these costs, the court must satisfy section 987.8’s procedural
requirements:
       First, before the court appoints counsel to represent a
defendant, it must notify him that he may be required to
reimburse the government if—after notice and a hearing—it
finds he has the ability to pay. (§ 987.8, subd. (f); see also id.,
subd. (b).)
       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 heard 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)).




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       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) 30 Cal.4th
1059, 1068 (Flores).) To rebut this presumption, there must be
“unusual circumstances.” (§ 978.8, subd. (g)(2)(B).) And the court
“must make an express finding of unusual circumstances before
ordering a state prisoner to reimburse his or her attorney.”
(People v. Verduzco (2012) 210 Cal.App.4th 1406, 1421; accord
People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
       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) 60 Cal.4th 862 (Aguilar).) We are asked to decide
whether, under Aguilar, a defendant’s failure to object below
forfeits an appellate challenge to a reimbursement order on
ability-to-pay grounds even if he has not received the required
notice.4



4Because we resolve this issue on notice grounds, we do not reach the
question of whether, under Aguilar, a defendant sentenced to state




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2.    Proceedings Below
       Here, the court requested a presentence report from the
probation department, but the probation department never filed
one; it believed it had provided sufficient information in its June
2017 early disposition report. The early disposition report, in
turn, did not mention attorney’s fees.
       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 mandatory 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?” The 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, 60 Cal.4th 862.) They
argue Aguilar holds that a defendant forfeits an appellate claim
that he cannot pay for his court-appointed lawyer unless he
objects to the order below—regardless of whether he has received
the required notice. We do not read Aguilar so broadly.
      Aguilar involved the imposition of probation-related costs
under section 1203.1b and an order for reimbursement of



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.




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appointed counsel fees under section 987.8. (Aguilar, supra, 60
Cal.4th at p. 864.) The sentencing court largely tracked the
recommendations of the probation report when it ordered
reimbursement, and defense counsel did not object. (Id. at
pp. 867–868.)
       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, 60 Cal.4th
at p. 868.) Because he had received proper notice, the defendant
could have objected at sentencing. (Ibid.) Then, the sentencing
court told the defendant that he would be able to assert his
inability to pay in subsequent proceedings before his probation
officer. (Ibid.) Finally, because he was on formal probation, the
defendant would have additional court appearances at which he
could ask the court to modify its order on ability-to-pay grounds.
(Ibid.)
       Here, by contrast, defendant was not granted probation—
he was sentenced to state prison. And because defendant was
sentenced to state prison, he was presumed to be unable to pay
attorney’s fees and costs (§ 987.8, subd. (g)(2)(B))—an issue the
Aguilar court did not address.
       More importantly for our purposes, in Aguilar, the
defendant received notice and the opportunity to request a
hearing. (See People v. Poindexter (1989) 210 Cal.App.3d 803, 809
[“proceedings to assess attorney’s fees against a criminal
defendant involve the taking of property, and therefore require
due process of law, including notice and a hearing”].) In this case,
on the other hand, defendant was not informed, before




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sentencing, either that the court was considering ordering him to
pay for his court-appointed attorney or that he had the right to a
hearing to determine his ability to pay. The probation
department did not prepare a presentence report, and its early
disposition report did not mention attorney’s fees.
      Because defendant did not receive the required notice, his
failure to object to the court’s reimbursement order did not forfeit
the claim that he cannot pay the fees assessed under section
987.8. (See People v. Prescott (2013) 213 Cal.App.4th 1473, 1475–
1476 [assuming no objection required where defendant provided
with neither notice nor a hearing], abrogated on other grounds by
Stats. 2016, ch. 534, § 1.)
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 are 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, 30 Cal.4th 1059.)
       Second, in Flores, there was some reason to believe remand
would not be an idle act. According to the presentence report in
that case, defendant was “ ‘stable and employed’ ” and possessed
$1,500 worth of jewelry. (Flores, supra, 30 Cal.4th at pp. 1068–
1069.) Because those facts indicated defendant “may be able to
pay something,” the Court affirmed the appellate court’s decision
to remand for a hearing. (Id. at p. 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




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People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [an
incarcerated defendant who has the ability to pay a restitution
fine from prison wages may still lack the ability to pay § 987.8
attorney’s fees]; § 2700 [able-bodied prisoners required to work];
but see 15 Cal. Code Regs. § 3040, subds. (a) [work includes
unpaid labor, education, and other programs], (k) [“An inmate’s
assignment to a paid position is a privilege dependent on
available funding, job performance, seniority, and conduct.”].)
        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 heavy-
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 for 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 direct victim




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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. (a)–(d); 15 Cal. Code Regs. § 3097,
subds. (f)–(g); Code Civ. Proc., § 704.090 [exempting $300 in
inmate trust account funds from restitution fines and $1,225
from other money judgments]; but see In re Betts (1998) 62
Cal.App.4th 821 [Code Civ. Proc., § 704.090 does not apply to
inmate wages or trust account deposits].) Before crediting a
payment to defendant’s court-ordered debts, CDCR will deduct a
10 percent administrative fee. (15 Cal. Code Regs. § 3097,
subd. (c); see §§ 1202.4, subd. (l) [authorizing fee up to 10 percent
of the restitution fine to cover actual administrative costs],
2085.5 [same].)
       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.
       Given defendant’s financial circumstances, the statutory
presumption that he lacks the ability to pay, and the lack of
evidence to conceivably rebut that presumption, we conclude
further proceedings would only generate more costs. In the
interests of judicial economy and efficiency, we modify the
judgment to strike the order assessing attorney’s fees. (See People
v. Gonzales (2017) 16 Cal.App.5th 494, 504–505 [declining to
remand for inquiry about ability to pay attorney’s fees “[i]n view
of the length of sentence, and to avoid what amounts to an
unnecessary use of judicial resources”]; § 1260 [court’s power to
modify judgments].)




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                         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 judgment as modified and to send a
certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.



              CERTIFIED FOR PUBLICATION



                                                     LAVIN, J.
WE CONCUR:



      EDMON, P. J.



      EGERTON, J.




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