Filed 12/11/14 P. v. Hostia CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039403
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1108757)

         v.

MICHAEL HOSTIA,

         Defendant and Appellant.


         Defendant Michael Hostia pleaded no contest to one count of annoying or
molesting a child under the age of 18 with a prior conviction (Pen. Code, § 647.6, subd.
(c)(2))1 in exchange for a prison sentence of two years, deemed served due to Hostia’s
accumulated custody and conduct credits. During the hearing on his change of plea, the
trial court advised Hostia that “attorney’s [sic] fees . . . will be awarded in this case to
compensate for the Public Defender.”
         At sentencing, the trial court imposed the agreed-upon sentence, but made no oral
pronouncement regarding attorney fees. The minute order and abstract of judgment,
however, reflect an award of $1,500 in attorney fees. The trial court also imposed a
restitution fund fine of $480 “pursuant to the formula set forth in [section] 1202.4[,
subdivision (b)(2)] . . . , and an additional amount of four hundred eighty dollars is
imposed but suspended.”


         1
             Further unspecified statutory references are to the Penal Code.
       On appeal, Hostia argues that the award of attorney fees must be stricken since it
was not part of the trial court’s oral pronouncement of sentence, and further because it is
not supported by any evidence that Hostia has the ability to pay those fees. He further
argues that his restitution fund fine must be reduced from $480 to $400 because the trial
court erroneously calculated that fine using the version of the statute in effect at the time
of sentencing rather than the version in effect at the time of the offense.
       We agree with both of Hostia’s contentions and shall reverse and remand for
resentencing.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       Because the underlying facts are irrelevant to the issues argued on appeal, we
provide only a summary. On June 4, 2011, Hostia drove by three young girls, ages nine
to 12, stared at them and told them to get in his car. The girls ran home instead. A
couple of days later, Hostia slowly drove by two of the same girls as they walked home
from the bus stop after school.
       Hostia was charged in an amended information with three counts of annoying or
molesting a child under the age of 18 with a prior conviction. (§ 647.6, subd. (c)(2).)
The information also alleged Hostia had one strike prior and one prison prior. (§§ 667,
subds. (b)-(i), 1170.12, 667.5, subd. (b).)
       Hostia’s first trial ended in a mistrial after the jury announced it was deadlocked.
His second jury trial also ended in a mistrial when that jury was unable to reach a verdict.
       On November 28, 2012, Hostia pleaded no contest to one count of annoying or
molesting a child under the age of 18 with a prior conviction. At the change of plea
hearing, the trial court discussed the various fines and fees that could be imposed, and
stated, “[t]here also will be attorney’s [sic] fees that will be awarded in this case to
compensate for the Public Defender.” Hostia acknowledged his understanding that the
fines and fees were not part of the plea bargain and would be imposed at sentencing.



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       In its presentence report, the probation department recommended, among other
things, “A Restitution Fine of $480.00 be imposed under the formula permitted by Penal
Code Section 1202.4(b)(2).” Following the numbered list of recommendations, the
following typewritten line appears, “NOTE: Attorney fees if appropriate.” The sum
“$1500” is hand-written next to that line. The trial judge signed the presentence report,
indicating that it was “read and considered by the Court.”
       At the sentencing hearing, the trial court sentenced Hostia to two years in state
prison, with the sentence deemed served in full. The court also imposed a restitution
fund fine of $480 “pursuant to the formula set forth in” section 1202.4, subdivision (b)(2)
and an additional $480 was imposed and suspended. The trial court’s oral
pronouncement did not mention attorney fees or Hostia’s ability to pay such fees.
However, both the minute order and the abstract of judgment indicate that Hostia is
ordered to pay $1,500 in attorney fees.
II.    DISCUSSION
       A.     Attorney fees
       Hostia contends the award of attorney fees which appears in both the minute order
and the abstract of judgment should be stricken because the trial court did not mention
such fees when orally pronouncing sentence. He also argues the award is improper
because there is no evidence to support a finding he has the ability to pay them.
              1.     Standard of review
       It has long been held that where there is a discrepancy between the oral
pronouncement of judgment and the minute order, the oral pronouncement controls.
(People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181,
185.) On the other hand, a record that is in conflict will be harmonized if possible.
(People v. Smith (1983) 33 Cal.3d 596, 599 (Smith); People v. Harrison (2005) 35
Cal.4th 208, 226.) If it cannot be harmonized, whether one portion of the record should



                                             3
prevail as against contrary statements in another portion of the record will depend on the
circumstances of each particular case. (Smith, supra, at p. 599.)
              2.     The issue is not forfeited
       The People’s first line of defense to this argument is that Hostia forfeited this
claim by not objecting below, citing People v. McCullough (2013) 56 Cal.4th 589
(McCullough).2 We disagree.
       In McCullough, the California Supreme Court held that failure to object to the
imposition of booking fees waived the issue on appeal. In reaching its conclusion, the
McCullough court expressly distinguished the booking fee statute at issue from other fee
statutes, including section 987.8, the statute governing the imposition of attorney fees.
(McCullough, supra, 56 Cal.4th at p. 598.) The McCullough court noted that, in contrast
to the booking fees statute, these other statutes “provide procedural requirements or
guidelines for the ability-to-pay determination.” (Ibid.) McCullough concluded this
distinction indicated “that the Legislature considers the financial burden of the booking
fee to be de minimis,” making “the rationale for forfeiture . . . particularly strong.” (Id. at
p. 599.)
       As the McCullough court acknowledged, section 987.8 imposes guidelines that
must be followed before the trial court may order reimbursement of attorney fees.
Section 987.8, subdivision (b) provides in relevant part, “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, or upon the withdrawal of the public defender or appointed private counsel, the
court may, after notice and a hearing, make a determination of the present ability of the

       2
        The California Supreme Court is currently considering whether this contention--
that McCullough requires a defendant to contemporaneously object to an order imposing
attorney fees under section 987.8--is correct. (People v. Aguilar, review granted Nov. 26,
2013, S213571.)


                                              4
defendant to pay all or a portion of the cost thereof.” Under the reasoning of
McCullough, these procedural safeguards indicate that the Legislature does not consider
the financial burden of attorney fees to be de minimis and counsel against forfeiture of
the right to challenge an award of such fees. Accordingly, we conclude Hostia’s
challenge is not forfeited under McCullough.
       Substantively, the People argue that the matter should be returned to the trial court
for further proceedings on the question of attorney fees. In his reply papers, Hostia
rejects this alternative, stating that because the trial court did not orally pronounce it was
imposing such fees, we must presume it found he did not have the ability to pay them.
We disagree with this analysis.
       As discussed above, where the record is in conflict we must harmonize it when
possible. (Smith, supra, 33 Cal.3d at p. 599.) Here, although there was no oral
pronouncement of attorney fees at sentencing, the trial court advised Hostia it would
impose such fees at the change of plea hearing and there was also a notation of such fees
added to the presentence report. Under these circumstances, we cannot presume that the
trial court considered and rejected imposing attorney fees on Hostia, let alone that it did
so based on a finding he lacked the ability to pay.
       Our Supreme Court has stated, “Recoupment statutes such as section 987.8
[subdivision] (b) reflect a legislative concern for ‘ “replenishing a county treasury from
the pockets of those who have directly benefited from county expenditures.” ’
[Citations.] ‘ “Recoupment proceedings may protect the State from fraudulent
concealment of assets and false assertions of indigency. Many States, moreover, face
expanding criminal dockets, and this Court has required appointed counsel for indigents
in widening classes of cases and stages of prosecution. Such trends have heightened the
burden on public revenues, and recoupment laws reflect legislative efforts to recover
some of the added costs.” ’ ” (People v. Flores (2003) 30 Cal.4th 1059, 1063.)
“Defendant may not be able to pay the [full amount] ordered by the trial court, but he

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may be able to pay something, and if he can, he is obligated by the statute to do so.” (Id.
at pp. 1068-1069.) In accordance with the policy objectives identified in Flores, the
matter must be remanded to the trial court for a determination of Hostia’s present ability
to pay. (Id. at p. 1068.)
       B.      Restitution fund fine
       Following the recommendation set forth in the probation report, the trial court
imposed a restitution fine of $480 “pursuant to the formula set forth in 1202.4[,
subdivision (b)(2)] of the Penal Code.” Hostia contends this calculation was erroneous,
because, at the time the instant offense was committed, the statute provided that “the
court may determine the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is ordered to serve,
multiplied by the number of felony counts of which the defendant is convicted.” (Former
§ 1202.4, subd. (b)(2).) Accordingly, the fine should have been $400, rather than $480.
       Effective January 1, 2012, the statute was amended to provide that the restitution
fine, “shall not be less than two hundred forty dollars ($240).” (Stats. 2011, ch. 358, §
1.)3 However, in both the former and current versions of section 1202.4, subdivision
(b)(1), the statute provides that the “restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense” and permits the court to
impose a fine up to $10,000. The trial court has the discretion to impose a fine anywhere
within the statutory range, absent an express agreement otherwise. (People v. Villalobos
(2012) 54 Cal.4th 177, 186.)
       In this case, although the amount of the fine is within the range permitted under
the version of section 1202.4 in effect at the time of the charged offense (i.e., from $200
to $1,000), the record seems clear that both the probation department and the trial court

       3
        The minimum fine was increased to $280 as of January 1, 2013 and $300 as of
January 1, 2014. (Stats. 2011, ch. 358, § 1.)


                                                6
erroneously calculated the fine using the 2012 version of the statute, presuming that the
minimum fine was $240 rather than $200. Though the trial court may, on remand,
exercise its discretion to impose the exact same fine of $480, we do not know that this
would be the outcome if it started with the proper minimum fine.
       The People again contend that Hostia has forfeited this argument on appeal
because he failed to object to it below. Assuming without deciding that the argument has
not been forfeited, and given the fact that we are remanding the matter for further
proceedings relating to the imposition of attorney fees, there seems little reason the trial
court should not also revisit the amount of the restitution fund fine.
III.   DISPOSITION
       The judgment is reversed. The matter is remanded to the trial court with
directions to vacate its previous order directing Hostia to pay $1,500 in attorney fees.
The court shall then either conduct a noticed hearing on Hostia’s ability to pay attorney
fees pursuant to Penal Code section 987.8 or direct the clerk of the court to amend the
abstract of judgment to strike the attorney fee order. The court may impose a new order
to pay attorney fees if it determines that Hostia has the ability to pay. The trial court is
further directed to strike the restitution fund fine of $480 and impose a new fine in
accordance with the version of Penal Code section 1202.4, subdivision (b)(2) in effect at
the time of the charged offense. The remainder of the judgment is unaffected by this
decision.




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                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
