Filed 5/5/14 P. v. Pincetl CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B247923

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA096766)
         v.

ROBERT MAURICE PINCETL, III,

         Defendant and Appellant.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
David C. Brougham, Judge. Affirmed in part, reversed in part and remanded with
directions.
                   Adrian K. Panton, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.


                                            _____________________
       A jury convicted Robert Maurice Pincetl, III of conducting a business without a
license. On appeal, Pincetl contends the restitution and probation revocation fines must
be stricken because they were not orally imposed by the trial court, and he challenges the
order requiring him to reimburse the County of Los Angeles for his court-appointed
attorney fees because no evidentiary hearing was held to determine his ability to pay
those fees. We reverse the judgment as to the award of attorney fees award and remand
the matter to permit the trial court to hold the required evidentiary hearing. We also
strike the restitution fine and probation revocation fine not orally imposed. In all other
respects, we affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Pincetl was arrested and charged in an information with one count of cultivating
marijuana (Health & Saf. Code, § 11358) and one count of possessing marijuana for sale
(Health & Saf. Code, § 11359) after police found him with numerous marijuana plants
growing inside a building in the city of Irwindale. As to both counts, the information
specially alleged Pincetl had suffered one prior serious or violent felony conviction
within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12,
subds. (a)-(d)). Pincetl pleaded not guilty and denied the special allegation.
       Pincetl was separately charged in a misdemeanor complaint with conducting a
business without a license in violation of Irwindale Municipal Code section 5.04.20.
Pincetl pleaded not guilty to the charge.
       After the trial court granted the People’s motion to consolidate the cases, a jury
convicted Pincetl of conducting a business without a license (count 3), but acquitted him
of the marijuana-related felony charges (counts 1 and 2).
       The trial court suspended imposition of sentence and placed Pincetl on 36 months
of summary probation. Among the conditions of probation, the court ordered Pincetl to
pay a $500 fine and $1,262 in county attorney fees for his court-appointed defense
counsel, but imposed no other fines or fees. The court made no reference to the
restitution fine or probation revocation fine, or to any specific fees and penalties. The

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prosecutor did not request additional fines and fees, nor object to their omission by the
trial court. The minute order of the February 26, 2013 sentencing hearing shows that
Pincetl was ordered to pay a $500 fine, a $140 restitution fine (Pen. Code, § 1202.4), a
stayed $140 probation revocation fine (Pen. Code, § 1202.44), $1,262 in attorney fees
(Pen. Code, § 987.8) and certain mandatory fees and penalties.
                                          DISCUSSION
       1. Attorney Fees
       Penal Code section 987.8, subdivision (b), “provides that, upon the conclusion of
criminal proceedings in the trial court, the court may, after giving the defendant notice
and a hearing, make a determination of his present ability to pay all or a portion of the
cost of the legal assistance provided him.” (People v. Flores (2003) 30 Cal.4th 1059,
1061.) As defined in Penal Code section 987.8, subdivision (g)(2), “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 discernable future financial position. . . .” Subdivision (e) of the
statute confirms the defendant’s right to be heard in person, to present witnesses and
documentary evidence and to confront any witnesses testifying about his ability to pay.
Although the defendant’s present ability to pay may be inferred from the content and
conduct of the hearing (see People v. Phillips (1994) 25 Cal.App.4th 62, 71), whether
express or implied the finding of ability to pay must be supported by substantial
evidence. (See People v. Milsen (1988) 199 Cal.App.3d 344, 347.)
       As Pincetl contends and the People concede, in this case there was no hearing to
determine Pincetl’s ability to pay attorney fees nor was there evidence otherwise in the
record sufficient to support such a finding. Additionally, the trial court erred by imposing
reimbursement of attorney fees as a condition of probation, which is absolutely
prohibited in California courts. (People v. Flores, supra, 30 Cal.4th at p. 1067, fn. 5.)



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       Accordingly, we reverse the judgment as to the attorney fee order and remand for
a hearing on Pincetl’s ability to pay in accordance with Penal Code section 987.8.
(People v. Flores, supra, 30 Cal.4th at p. 1063 [remand is proper remedy when court
orders defendant to pay attorney fees under Pen. Code, § 987.8 without substantially
complying with procedural safeguards enumerated in that section]; People v. Verduzco
(2010) 210 Cal.App.4th 1406, 1421 [if the attorney fee award is in error, remand is
permissible for the purpose of determining whether the defendant has the ability to pay
attorney fees].)
       2. Restitution Fine and Probation Revocation Fine
       The February 26, 2013 minute order reflects the imposition of a restitution fine
and a probation revocation fine not orally imposed by the trial court. Pincetl argues and
the People acknowledge, because the trial court had the discretion to not impose these
fines, the prosecutor’s failure to object forfeited any claim of error on appeal. (People v.
Tillman (2000) 22 Cal.4th 300, 302-303.) These fines are stricken.
                                      DISPOSITION
       The judgment is reversed as to the order to reimburse the County of Los Angeles
for $1,262 in county attorney fees. The matter is remanded for the trial court to
determine, in accordance with the applicable statute, Pincetl’s ability to pay such fees
before imposing them. If any order directing payment of attorney fees is entered on
remand, the order will make clear that it is not a condition of probation. The judgment is
further modified to strike the restitution fine and probation revocation fine, which the
court did not orally impose. In all other respects the judgment is affirmed.



                                                                               WOODS, J.
We concur:


              PERLUSS, P. J.                                                   ZELON, J.


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