Filed 7/16/14 P. v. Cooper 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059303

v.                                                                       (Super.Ct.No. FWV1202728)

LEE MITCHELL COOPER,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,

Judge. Affirmed in part; reversed in part with directions.

         Michelle C. Zehner, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted defendant Lee Mitchell Cooper of burglary of a vehicle (count 1;




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Pen. Code, § 459).1 Thereafter, the court found true allegations defendant had suffered a

prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and three prior

prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate,

determinate term of incarceration of seven years.

       On appeal, defendant contends that insufficient evidence supported the court’s

finding he had the ability to pay $500 in attorney fees and that the court erred in making

the finding without providing him adequate notice and a hearing on the issue. Defendant

additionally requests the minute order of his sentencing be modified to reflect that the

court found only one prior strike conviction true. We reverse the order to pay attorney

fees and remand the matter for a hearing on defendant’s ability to pay. We shall also

direct the superior court to correct the minute order dated July 19, 2013, to reflect the

court found true the allegation that defendant had suffered only one prior strike

conviction. In all other respects, the judgment is affirmed.

                                   FACTUAL HISTORY

       On April 6, 2012, the victim parked her car in the parking lot at her work, locked

the car, and went to work. After her shift ended, she returned to find the rear driver’s

side window of her vehicle smashed. A pack of candy she had purchased earlier that day

and left in her car was lying on the ground outside her vehicle. There was broken glass

both inside and outside the car. There was also blood on the broken glass, on the ground,



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




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and on the inside of the car. The glove box had been opened and the contents placed on

the passenger seat.

       Deputy Miranda, who was dispatched to the reported vehicle burglary, testified

there was a pry mark on the rear driver’s side window. Deputy Miranda collected the

candy as evidence and sent it to the crime lab for analysis. A criminalist received the

candy and lifted a print from it. A fingerprint analyst compared the print lifted from the

candy to prints in a computer database. Defendant’s left middle finger print matched the

one lifted from the candy. Deputy Mondry rolled defendant’s finger prints on May 17,

2013. The print obtained from the candy matched the print taken directly from

defendant.

       Detective Williams interviewed defendant on August 12, 2012. Defendant

admitted breaking into the victim’s car through the rear driver’s side window because he

wanted the items inside. Defendant said he cut his hand breaking into the vehicle.

       Defendant testified that on April 6, 2012, he was drinking with two other

individuals at a restaurant. They were also on methamphetamine. Defendant ended up in

a physical confrontation with one of his companions in the parking lot. The other

individual obtained a wrench from defendant’s car and threw it at defendant. It missed

defendant, but broke the window of the victim’s car. Defendant reached into the victim’s

car in order to retrieve his wrench. He cut himself doing so and bled into the car.

Defendant moved some items around inside the car in order to retrieve the wrench.

Defendant left with his companions five minutes after retrieving the wrench. Defendant




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told Detective Williams several different versions of what had occurred before stating

that he was responsible.2

                                       DISCUSSION

       A.     Attorney Fee.

       Defendant contends the court erred in directing that he pay $500 in attorney fees in

recompense for his public defender because the court neglected to provide him notice and

hold the requisite hearing in order to make a determination of his ability to pay. The

People maintain defendant forfeited any failure to hold a hearing by failing to object

below and that substantial evidence supports a determination of defendant’s ability to pay

regardless. We agree with defendant.

       “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



       2  Defendant also admitted on the stand to being arrested and convicted of a crime
of moral turpitude in 2003 (a prior first degree burglary, which the court found true as a
prior strike allegation). Defendant additionally admitted on the stand he had been
previously convicted of felony resisting an officer and attempted unlawful taking of a
motor vehicle, two of the three convictions which led to the true findings on alleged prior
prison terms. Defendant admitted on the stand to incurring four felony convictions
between 2003 and 2011.




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inquiry into the ability of the defendant to pay all or a portion of the legal assistance

provided.” (§ 987.8, subd. (b).)

       “‘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 (Verduzco).)


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              1.     Forfeiture.

       The People argue defendant forfeited his contention by failing to object to the

court’s order below. We disagree.

       The probation officer recommended the court find defendant had the ability to pay

both the appointed-counsel fee in the amount of $500 (§ 987.8) and the cost of

conducting the presentence investigation and report in the amount of $505 (§ 1203.1,

subd. (b)). The probation report reflects defendant had assets in the amount of $12,500

and had been working for five months prior to his arrest as quality control at a warehouse

making nine dollars an hour. The probation officer additionally reported defendant had

been incarcerated for 242 days prior to sentencing and had been homeless prior to his

arrest. After finding the prior conviction allegations true, the court noted “I am going to

find that defendant does have the present ability to pay appointed-counsel fees in the

amount of $500 through Central Collections. I will find that he does not have the present

ability to pay the costs of conducting the presentence investigation.”

       “‘Waiver is different from forfeiture. Whereas forfeiture is the failure to make the

timely assertion of a right, waiver is the “intentional relinquishment or abandonment of a

known right.” [Citation.] Whether a particular right is waivable; whether the defendant

must participate personally in the waiver; whether certain procedures are required for

waiver; and whether the defendant’s choice must be particularly informed or voluntary,

all depend on the right at stake. [Citations.]’ [Citation.]” (People v. Collins (2001) 26

Cal.4th 297, 305, fn. 2.)




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       The People cite People v. McCullough (2013) 56 Cal.4th 589, for the proposition

that a defendant’s failure to object to the imposition of an attorney fee below forfeits the

contention on appeal. In McCullough, the court held that “a defendant who fails to

contest the booking fee when the court imposes it forfeits the right to challenge it on

appeal.” (Id. at p. 591, italics added.) McCullough reasoned that booking fees differed

from other statutory fees that had procedural requirements or guidelines compelling the

court to make ability-to-pay determinations only after affording a defendant a hearing and

other safeguards. (Id. at p. 598.) It also noted “the Legislature considers the financial

burden of the booking fee to be de minimis and has interposed no procedural safeguards

or guidelines for its imposition. In this context, the rationale for forfeiture is particularly

strong. [Citations.]” (Id. at p. 599 [$270.17 booking fee].)

       No objection in the trial court is required to challenge the sufficiency of the

evidence to support imposition of an attorney fee on appeal. (People v. Viray, supra, 134

Cal.App.4th at p. 1217; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [“In the

absence of a guilty plea, the sufficiency of the evidence to support a finding is an

objection that can be made for the first time on appeal”]; Verduzco, supra, 210

Cal.App.4th at p. 1421.)

       Here, unlike the booking fee at issue in McCullough, the statutory imposition of

attorney fees entails the provision of procedural requirements which compel the court to

make an ability-to-pay determination only after affording defendant notice and a hearing.

(§ 987.8, subd. (b).) No such hearing was held here. Likewise, the $500 fee ordered here




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is not de minimis. Moreover, defendant did not enter a guilty plea, but was convicted

after a jury trial. Thus, defendant did not forfeit the issue by failing to object below.

               2.     Substantial Evidence.

       Defendant contends insufficient evidence supports the attorney fee. The People

maintain that even if defendant did not forfeit the contention on appeal, defendant was

provided notice of the fee and substantial evidence was adduced below to support the

court’s determination defendant had the ability to pay the attorney fee. We agree with

defendant.

       “[S]ection 987.8 establishes the means for a county to recover some or all of the

costs of defense expended on behalf of an indigent criminal defendant. [Citation.] Under

subdivisions (b) and (c) of the statute, an order of reimbursement can be made only if the

court concludes, after notice and an evidentiary hearing, that the defendant has ‘the

present ability . . . to pay all or a portion’ of the defense costs. [Citations.] If this finding

is made, ‘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 reasonable and

compatible with the defendant’s financial ability.’ [Citation.]” (Verduzco, supra, 210

Cal.App.4th at p. 1420, fn. omitted.) “In calculating ability to pay, ‘the court [must]

consider what resources the defendant has available and which of those resources can

support the required payment,’ including both the defendant’s likely income and his or

her assets. [Citations.]” (Id. at p. 1421.)

       “Unless the court finds unusual circumstances, a defendant sentenced to state

prison shall be determined not to have a reasonably discernible future financial ability to


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reimburse the costs of his or her defense.” (§ 987.8, subd. (g)(2)(B).) The statute

“require[s] an express finding of unusual circumstances before ordering a state prisoner

to reimburse his or her attorney.” (People v. Lopez, supra, 129 Cal.App.4th at p. 1508,

1537; accord Verduzco, supra, 210 Cal.App.4th at p. 1421.)

       Here, no hearing on defendant’s ability to pay the attorney fee was held. The

court sentenced defendant to prison for seven years. The court did not make any express

finding of unusual circumstances to warrant imposition of the fee. Defendant had been in

jail for 242 days prior to his sentencing. Prior to his arrest, defendant was homeless.

Although the court found defendant had the ability to pay the attorney fee, it found

defendant did not have the ability to pay the presentence investigation fee. There was no

explanation regarding the apparently conflicting nature of these findings. Thus, the court

failed to hold a proper hearing on defendant’s ability to pay the fee, and insufficient

evidence supports the court’s order.

       The People contend that, pursuant to People v. Phillips (1994) 25 Cal.App.4th 62,

the probation report provided defendant proper notice of the potential imposition of the

fee, and that substantial evidence supports the fee. (Id. at pp. 71-72.) We find Phillips

distinguishable. In Phillips, the defendant was placed on probation, which would permit

him to obtain employment in order to pay the fee. (Id. at pp. 66-67.) Here, the court

sentenced defendant to prison. The court in Phillips asked the defendant about his

employment and wages, and considered his ability to pay the fee at the sentencing

hearing. That information supported the court’s order that he pay “the sum of $150 for

the services of the public defender.” (Id. at pp. 67-72, 76.) Here, the court did not


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inquire regarding defendant’s employment, wages, or ability to pay the fee. Moreover,

the court ordered defendant pay the much greater sum of $500.

       The People further argue the notation in the probation report that defendant had

$12,500 in assets supports the court’s order. However, because the court held no hearing

on the issue, we do not know from where this information came, in what form the assets

existed, and if they were sufficiently liquid as to enable defendant to use them to pay the

fee. Likewise, the fact defendant had worked for five months prior to arrest, making nine

dollars an hour, seemingly conflicts with the probation officer’s indication defendant had

been homeless. Regardless, defendant had been in jail for approximately eight months

before he was sentenced to seven years’ imprisonment. Thus, insufficient evidence

supports the court’s determination defendant had the present ability to pay the attorney

fee.

       B.     Correction of Minute Order.

       Defendant contends the minute order dated July 19, 2013, erroneously reflects the

court found defendant had incurred two prior strike convictions when it actually found

only one. Defendant requests we order the court to correct the mistake. The People

agree. We shall order the superior court to correct the minute order.

       “To the extent a minute order diverges from the sentencing proceedings it purports

to memorialize, it is presumed to be the product of clerical error. [Citation.] . . . As with

other clerical errors, discrepancies between an abstract and the actual judgment as orally

pronounced are subject to correction at any time, and should be corrected by a reviewing

court when detected on appeal. [Citation.]” (People v. Scott (2012) 203 Cal.App.4th


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1303, 1324.) “‘Where there is a discrepancy between the oral pronouncement of

judgment and the minute order or the abstract of judgment, the oral pronouncement

controls.’ [Citations.] A reviewing court has the authority to correct clerical errors . . . .

[Citation.]” (People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)

       Here, the People alleged defendant had incurred only one prior strike conviction.

The court found true the allegation defendant had suffered one prior strike conviction.

Thus, the minute order dated July 19, 2013, must be corrected to reflect that the court

found true only one prior strike conviction.

                                       DISPOSITION

       The imposition of the $500 attorney 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 public defender. The superior court is further

directed to correct the minute order dated July 19, 2013, to reflect that the court found

true defendant had incurred only one prior strike conviction. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  CODRINGTON
                                                                                                 J.
We concur:


KING
                 Acting P. J.


MILLER
                           J.


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