Filed 7/28/15 P. v. Johnson CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C077455

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM041178)

         v.

LARRY ANDREW JOHNSON,

                   Defendant and Appellant.




         Defendant Larry Andrew Johnson pled no contest to driving under the influence
with a high blood-alcohol level and admitted serving a prior prison term. The trial court
sentenced him to an aggregate term of four years in state prison. The court also awarded
him 116 days of custody credit and imposed numerous fines and fees, including a $420
fee for the services of the public defender. Defendant timely appealed.




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        Defendant now contends: (1) the trial court erred in failing to provide him with
notice and a hearing on his ability to pay the attorney fees; (2) there is insufficient
evidence in the record of his ability to pay; and (3) the record contains no information on
the actual cost of his public defender. We agree and strike the order to pay attorney fees.
                                        DISCUSSION
        We dispense with a recitation of the facts of this case, as they are not relevant to
our determination of the issues on appeal. It suffices to say that the trial court ordered
defendant to pay $420 in attorney fees at the time of sentencing, without discussion, and
the fee was not listed in the probation report or otherwise specifically mentioned until
imposed. No mention was made of defendant’s ability to pay. The People do not dispute
these facts. Defendant did not object at sentencing to the fee.
        Penal Code section 987.81 permits a court to order a defendant to pay the cost of
court-appointed counsel after a hearing to determine if defendant has the ability to pay.
“In any case in which a defendant is provided legal assistance, either through the public
defender or private counsel appointed by the court, 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.” (Id., subd. (b).) In determining this ability to pay, the court may consider both
defendant’s present financial position and the defendant’s reasonably discernible future
financial position, limited to six months in the future. (Id., subd. (g)(2)(B).) “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 reimburse the
costs of his or her defense.” (Ibid.)




1   Further undesignated statutory references are to the Penal Code.

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       The statute sets forth procedural requirements for the statutory imposition of
attorney fees. The court is to make an ability-to-pay determination only after affording
defendant notice and a hearing. (§ 987.8, subd. (b).) The court must make an express
finding of unusual circumstances before ordering a state prisoner to reimburse his
attorney. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
       The People argue that defendant has forfeited the claim of insufficient evidence of
the ability to pay by failing to object in the trial court. Defendant contends no objection
is required to preserve the issue for appeal, citing People v. Viray (2005) 134 Cal.App.4th
1186. In Viray, the appellate court held that a forfeiture to an appellate challenge to an
attorney fee reimbursement order cannot “properly be predicated on the failure of a trial
attorney to challenge an order concerning his own fees,” given the “patent conflict of
interest.” (Id. at p. 1215.)
       The People ignore Viray, although it forms the basis for defendant’s argument in
his opening brief, and instead cite People v. Aguilar (2015) 60 Cal.4th 862, in which our
Supreme Court held the forfeiture rule applied where defendant failed to object to the
amount of counsel fees or to assert the inability to pay in the trial court. However, in
Aguilar, our Supreme Court noted the case did not present, “and we therefore do not
address, the question whether a challenge to an order for payment of the cost of the
services of appointed counsel is forfeited when the failure to raise the challenge at
sentencing may be attributable to a conflict of interest on trial counsel’s part.” (Id. at p.
868, fn. 4.) Nor did the case concern the statutory presumption of section 987.8,
subdivision (g)(2)(B) for defendants who are sentenced to prison.2 Here defendant does
raise the possibility that the failure to object was due to a conflict of interest.



2 People v. Trujillo (2015) 60 Cal.4th 850, on which the People also rely, does not
concern attorney fees and is not on point to the issues reached in this case. It merely
reaffirms the general applicability of the forfeiture rule to sentencing.

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       We agree with Viray and reach the merits of defendant’s claim.3 We review for
substantial evidence. (People v. Viray, supra, 134 Cal.App.4th at p. 1217.) Here,
defendant was not given proper notice that his ability to pay attorney fees would be
determined at sentencing. Although defendant was told prior to the appointment of
counsel that he might be liable for attorney fees after judgment was rendered, this is not
sufficient notice under section 987.8, subdivision (b). Nor did the probation report
provide sufficient notice, making no mention of attorney fees.
       Further, there was no evidence here that defendant had a present or future ability
to reimburse the costs of his defense. As we have noted, there is a statutory presumption
that because defendant was sentenced to prison, he had no future ability to pay absent
unusual circumstances. The trial court failed to make that finding--or any finding
regarding payment of attorney fees--thus the statutory presumption controls. Because
defendant had no ability to pay, the reimbursement order must be stricken.
                                      DISPOSITION
       The order to pay attorney fees is stricken. As modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment and to send a
certified copy to the Department of Corrections and Rehabilitation.


                                                        DUARTE                 , J.

We concur:


      RAYE                  , P. J.


      MAURO                 , J.



3 The People’s briefing did not reach these issues, instead putting all their eggs in the
forfeiture basket.

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