Filed 10/18/13 P. v. Shovey CA4/2

                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E056139

v.                                                                        (Super.Ct.No. FMB1200069)

KEITH ALLEN SHOVEY,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,

Judge. Affirmed with directions.

         Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, and Scott C.

Taylor, Deputy Attorneys General, for Plaintiff and Respondent.




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                                          INTRODUCTION

       Defendant Keith Allen Shovey claims that because he did not receive notice or a

hearing prior to the trial court‟s imposition of a $500 appointed attorney compensation

fee, it must be stricken. In the alternative, relying upon People v. Pacheco (2010) 187

Cal.App.4th 1392 (Pacheco), he asserts that there was insufficient evidence to support

the order and that the matter must be remanded for a hearing on whether he has the

ability to pay the fee. The People answer that defendant forfeited his right to notice and a

hearing by failing to object below, but concede that the matter must be remanded for an

ability to pay hearing on sufficiency of the evidence grounds. In a one-page letter reply

brief filed March 21, 2013, appellate counsel asks us to “accept respondent‟s

concession.”

       Because the trial court failed to provide defendant the notice and hearing required

by Penal Code section 987.8, and because we find defendant‟s due process claim was not

forfeited, we will remand the matter for the trial court to determine his ability to pay the

disputed fee.

                               FACTS AND PROCEDURAL HISTORY1

       This appeal involves two cases. The first, FMB1000504, concerns a drug-

possession offense committed on December 22, 2010. The second, FMB1200069,

concerns a weapons possession offense committed on February 11, 2012. The issue



       1 Because there was no probation report, we take the underlying facts, in part,
from the police reports.


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presented does not turn on the facts of defendant‟s offenses, and we summarize them

only briefly.

       FMB1000504

       On December 22, 2010, defendant was arrested while in possession of

methamphetamine.

       Five days later, on December 27, 2010, defendant signed an “Advisement of Legal

Rights” form (Advisement). Paragraph 1 of the Advisement told defendant that he had a

right to an attorney and that if he was unable to hire one the court would appoint one to

represent him “without charge.” The Advisement also stated, “I understand that at the

end of this case the Court, after a hearing, will decide if I have the ability to pay for all or

a part of the cost of my appointed attorney and will order me to pay what I can afford.”

Paragraph 2 of the Advisement told him that, while he had the right to represent himself,

doing so was “almost always unwise” and warned that he might be unable to properly

defend himself.

       On January 4, 2011, defendant pled guilty to one count of possession of a

controlled substance (Health and Saf. Code § 11377, subd. (a)), and admitted two prison

priors (§ 667.5, subd. (b)).2 In exchange for his plea, the court referred him to probation

and to drug court. The minute order indicates that defendant was referred to probation

for an investigation and report, but no report was filed. On January 21, 2011, defendant

signed an Advisement identical to the one he had signed on December 27, 2010.


       2   All further statutory references are to the Penal Code unless otherwise indicated.


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       Eight months later, on August 15, 2011, defendant was granted 36 months of

probation with terms and conditions. Term nine required that he “[n]either possess nor

have under [his] control any dangerous or deadly weapons . . . .” After reading the terms,

defendant confirmed his understanding and acceptance of each of them. Without any

discussion of his financial status or the reasonableness of the proposed fee, the trial court

ordered defendant to pay, among other fees and fines, a $500 “appointed counsel fee.”

Defense counsel did not object to any of the terms or fees.3 There was no probation

report and no discussion about defendant‟s financial status, but the minute order stated

that the appointed counsel fee was “Based on the defendant‟s ability to pay . . . .”4

       FMB1200069

       On February 11, 2012, defendant was arrested while in possession of a fixed-blade

knife concealed in his pocket.

       On February 14, 2012, the court re-appointed the public defender for case number

1000504 and the next day, February 15, 2012, appointed the public defender to represent

defendant in case number 1200069. On both days, defendant signed additional copies of


       3  Defendant does not challenge the appointed counsel fee order in the first case
but, as the People point out, conditioning probation upon the payment of appointed
counsel fees is prohibited in California. (People v. Flores (2003) 30 Cal.4th 1059, 1067,
fn 5, and cases cited therein.) Accordingly, the attorney fee reimbursement ordered in
case number FMB1000504 as part of defendant‟s terms and conditions of probation, is
void.

       4 The court accepted pleas of seven defendants hearing at which defendant
received his grant of probation. Of the seven, five were represented by deputy public
defenders and two by a conflict panel attorney. In each of three of those cases the court
also imposed a $500 appointed counsel fee without objection from counsel.


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the same Advisement he had signed in FMB1000504 in December 2010 and August

2011.

        This time defendant was (apparently) also given an “Advisement of Court

Appointed Counsel Fees Notice” (the Notice).5 The Notice told defendant he would be

referred to a county financial officer for evaluation and, if he disagreed with the financial

officer‟s finding that he could pay all or a part of the costs of his defense, he would be

given the opportunity to request a hearing before the court. Like the Advisements, the

Notice indicated that an order for attorney fees would be based on the court’s

determination of his ability to pay them.

        On February 21, 2012, defendant admitted to carrying a concealed dirk or dagger

in violation of section 21310. In exchange for his plea, the court sentenced him to an un-

split total of five years eight months in “county jail prison” pursuant to subdivision

(h)(5)(B) of section 1170. The court calculated the sentence as follows: five years for his

convictions in case FMB1000504 (the aggravated term of three years for the principal

[drug possession] count, plus one consecutive year for each prison prior); plus eight

consecutive months (1/3 the midterm) for his section 21310 offense in case number

FMB1200069.

        As it had done in FMB1000504 on August 15, 2011, and again with no objection

from defense counsel and no discussion of defendant‟s financial status, the court imposed

a $500 appointed counsel fee.

        5 The Notice is not signed, dated, or initialed, so we cannot be certain on which
date (if at all) defendant was given the Notice.


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       Throughout the proceedings in both cases, defendant was represented by attorneys

from the Public Defender‟s office.

                                            DISCUSSION

       “„[P]roceedings 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.‟ [Citations.]” (People v. Phillips (1994) 25 Cal.App.4th 62, 72.) “The

fundamental requisite of due process is the opportunity to be heard at a meaningful time

and in a meaningful manner. [Citations.]” (Cordova v. Vons Grocery Co. (1987) 196

Cal.App.3d 1526, 1531 (Cordova).)

       Section 987.8

       In California, the procedure for determining a criminal defendant‟s ability to

reimburse the county for the services of court-appointed counsel is outlined in section

987.8. Subdivision (f) of the statute provides in relevant part: “Prior to the furnishing of

counsel or legal assistance by the court, the court shall give notice to the defendant that

the court may, after a hearing, make a determination of the present ability of the

defendant to pay all or a portion of the cost of counsel. The court shall also give notice

that, if the court determines that the defendant has the present ability, the court shall

order him or her to pay all or a part of the cost.” (Italics added.)

       Subdivision (g)(2) defines “ability to pay” as the “overall capability of the

defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided

to him” based on, among other factors: the defendant‟s present financial position

(§ 987.8, subd. (g)(2)(A)); his reasonably discernable financial position for the next six


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months (§ 987.8, subd. (g)(2)(B)); and the likelihood that he will obtain employment

within six months from the date of the hearing. (§ 987.8, subd. (g)(2)(C).)

       Notice

       Here, at the beginning of his case, via the Advisements and the Notice, defendant

was told that he might later be required to pay for the costs of his defense. But while the

Advisements encouraged him to accept appointed counsel by warning him of the pitfalls

of self-representation, they also promised that he would be required to pay for his

attorney only if the court determined that he had the financial ability to do so. Similarly,

while the Notice told him he would be given the opportunity for a court hearing if he

wished to dispute a finding by a county financial officer that he could pay part or all of

defense costs, he was never sent for the predicate evaluation. None of these documents

suggested that he should be prepared to present evidence regarding his financial status at

any particular time or place; they simply embodied written promises of the procedures he

could expect the court to follow at some point before requiring him to pay for his

attorney. And he was never told that the court intended to impose a $500 attorney fee at

the sentencing hearing, where he should be prepared to discuss his finances.

       Hearing

       There is no evidence in the record that defendant was given even a rudimentary

hearing about his ability to pay attorney fees, much less a meaningful opportunity to be

heard on the issue. There was no probation report, and defendant was never referred to a

county financial officer for an evaluation. The court did not ask defendant about his

present financial situation, his foreseeable financial situation for the next six months, or


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his prospects for employment, and his attorney did not raise these questions. The court

simply imposed the $500 fee without making or soliciting comment about its

reasonableness or defendant‟s ability to pay it.

        We conclude that defendant did not receive the notice and hearing regarding his

ability to pay attorney fees required by section 987.8.

        Forfeiture

        The People do not disagree that defendant was denied the notice and hearing

protections of section 987.8, but argue that his rights under the statute were forfeited by

his attorney‟s failure to object to the fee at the time it was imposed. We disagree.

        The People are correct that, generally, in the interests of fairness and judicial

economy, only claims of error properly raised below and preserved by the parties are

reviewable on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 (Sheena K).)

“As we have observed on numerous occasions, „“„a constitutional right,‟ or a right of any

other sort, „may be forfeited in criminal as well as civil cases by the failure to make

timely assertion of the right before a tribunal having jurisdiction to determine it.‟””

(People v. McCullough (2013) 56 Cal.4th 589, 593 (McCullough), quoting Sheena K.)

“„The purpose of this rule is to encourage parties to bring errors to the attention of the

trial court, so that they may be corrected. [Citation.]‟ [Citations.]” (Sheena K. at p.

881.)

        “However, neither forfeiture nor application of the forfeiture rule is automatic.

[Citation.] Competing concerns may cause an appellate court to conclude that an

objection has not been forfeited. [Citations.]” (McCullough, supra, 56 Cal.4th at p. 593.)


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In our view, one of these “competing concerns” arises when appointed counsel fails to

object to a fee that inures to counsel‟s own benefit or to the benefit of his or her

employer. (People v. Viray (2005) 134 Cal.App.4th 1186, 1214 (Viray).) Under such

circumstances, the attorney‟s conflict of interest essentially renders the client

unrepresented and a client “cannot be vicariously charged with [his or her] erstwhile

counsel‟s failure to object to an order reimbursing [his or her] own fees.” (Ibid.)

       Nor does the conflict disappear just because the attorney is a salaried employee of

the state. “[T]he spectacle of an attorney representing a client in connection with an

order requiring that client to pay for the attorney‟s services, however attenuated the

connection may be in fact, carries the patent appearance of at least a vicarious adversity

of interests.” (Viray, supra, 134 Cal.App.4th at p. 1216, italics added.) Even a public

defender whose paycheck does not directly depend upon his client‟s paying a fee should

at least remind the court to conduct the financial-status hearing to which he knows the

client is entitled.

       The People attempt to distinguish Viray by noting that in that case the public

defender asked the court to impose a hefty fee ($9,200), while here, on its own motion,

the court imposed only a “generic” amount of $500. (Viray, supra, 134 Cal.App.4th at

pp. 1213-1214.) But section 987.8 does not distinguish among fees based on the amounts

imposed and does not exempt a “generic” fee from its mandates. The trial court is

required to determine an individual defendant‟s “overall capability to reimburse the costs

of the legal assistance provided to him” before any attorney fee is imposed. (§ 987.8,

subd. (g)(2).) Some defendants might easily be able to pay a $500 fee, but the overall


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financial capability of a destitute person might not support even that relatively modest

amount.6

       Throughout the proceedings in this case, not one of defendant‟s appointed

attorneys raised the issue of notice or the ability to pay attorney‟s fees. There was no

objection to the fee, no request for the court to inquire about defendant‟s finances or refer

him to the county financial officer, and no reminder to the court that the client was

entitled to an ability-to-pay hearing under the provisions of section 987.8.

       In such a situation, “it is absurd to rely on the conduct of the attorney to impose a

procedural forfeiture upon the client,” and we decline to do so. (Viray, supra, 134

Cal.App.4th at p. 1216.)

       Substantial Evidence

       Relying, as does defendant, on Pacheco, the People nonetheless agree that the case

should be remanded on sufficiency of the evidence grounds. We address this argument

briefly to emphasize that, although it is true that the record contains no evidence

regarding defendant‟s financial status, it is not on that basis that we remand the case.

       6  When a defendant is sentenced to state prison (virtually always for more than six
months), a hearing is required to determine whether “unusual circumstances” might exist
such that the presumption that he or she does not have the ability to pay defense costs
might be overcome. (§ 987.8, subd. (g)(2)(B).) Defendant does not directly argue the
point, but suggests that the presumption should apply to him because he was sentenced
for a prolonged period in county jail. We do not address the question here because it is
not necessary to a resolution of this case. However, we note that, relying upon the
unambiguous “state prison” language of the statute and absent legislative direction, at
least one appellate court has refused to extend the presumption to defendants sentenced to
county jail instead of state prison under the Realignment Act. (People v. Prescott (2013)
213 Cal.App.4th 1473, 1478.)



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       In its recent decision concerning booking fees, the California Supreme Court

unanimously disapproved the “substantial evidence” reasoning of Pacheco as a basis for

failing to follow the waiver rule in most ability-to-pay determinations. (McCullough,

supra, 56 Cal.4th at pp. 599-600.) Ability to pay, the Court pointed out, is largely a

factual determination, and a defendant “may not „transform . . . a factual claim into a

legal one by asserting the record‟s deficiency as a legal error.‟ [Citation.] By „failing to

object on the basis of his [ability] to pay,‟ defendant forfeits both his claim of factual

error and the dependent claim challenging „the adequacy of the record on that point.‟

[Citations.]” (McCullough at p. 597, quoting People v. Forshay (1995) 39 Cal.App.4th

686, 689-690.)7

       We remand this case not on the sufficiency of the evidence grounds disapproved

in McCullough. We remand because we find that a “competing concern”—the

appearance of a possible conflict of interest on the part of appointed counsel—means that

defendant was denied due process rights to notice and a meaningful opportunity to be

heard regarding his ability to pay attorney fees. Accordingly, his right to appeal the fee


       7 McCullough contrasted booking fee statutes (which specify no particular factors
to be considered in assessing a defendant‟s financial status) with statutes like section
987.8, which provides procedural guidelines and factors to be considered at “a noticed
hearing on whether a defendant should pay all or part of the cost of court-appointed
counsel.” (McCullough, supra, 56 Cal.4th at pp. 598-599; § 987.8, subd. (g)(2)(B).) The
absence of these factors in the booking fee statutes, the Court said, suggests that the
Legislature considers the financial burden of that fee to be “de minimus.” (McCullough
at pp. 598-599.) The Court thus implies that the Legislature does not consider attorney
fees de minimus and has added safeguards to protect defendants from the imposition of
onerous financial burdens without the opportunity to oppose those which they are unable
to bear.


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has not been forfeited. (McCullough, supra, 56 Cal.4th at p. 593; Cordova, supra, 196

Cal.App.3d at p. 1531.) Defense counsel may not remain silent while the court, without

any inquiry about his client‟s ability to pay, orders the payment of the attorney‟s own

fees. (See People v. Flores (2003) 30 Cal.4th 1059, 1068 [remand is the proper remedy

when the trial court fails to give a defendant the notice and hearing required by section

987.8]; accord, McCullough at p. 593.)

                                          DISPOSITION

       The matter is remanded to the trial court with instructions to conduct a noticed

hearing pursuant to the provisions of section 987.8 subdivisions (b) and (g), to determine

defendant‟s ability to pay appointed counsel fees. In all other respects, the judgment is

affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                       CODRINGTON
                                                                                            J.


We concur:

McKINSTER
                Acting P. J.

RICHLI
                          J.




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