Filed 5/28/14 P. v. Liu CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B249134

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA099267)
         v.

CHARLIE LIU,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Mike Camacho, Judge. Affirmed in part, reversed in part and remanded with directions.

         Sunnie L. Daniels, 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, Assistant Attorney General, Victoria B. Wilson and Erika D.
Jackson, Deputy Attorneys General, for Plaintiff and Respondent.


                                 _________________________________
       Charlie Liu appeals from a judgment of conviction for assault with a deadly
weapon. On appeal, he contends the trial court’s order requiring him to reimburse the
public defender’s office in the amount of $9,249 for costs incurred in representing him
without prior notice and a hearing was error. Liu also challenges the trial court order to
pay a $40 court operations fee and a $30 criminal conviction assessment fee as well as
the attorney fees as conditions of probation. We reverse and remand with directions to
the trial court to provide Liu with a noticed hearing on his ability to pay the attorney fees.
We also modify the trial court’s order regarding the challenged fees to reflect they are not
conditions of probation.
                                     BACKGROUND
       The issue presented by this case does not turn on the facts of the offense, so we
simply note that Liu was convicted of assault with a deadly weapon in violation of Penal
Code1 section 245, subdivision (a)(1). The trial court imposed and suspended a four year
sentence in state prison, placing Liu on probation for five years. At sentencing, the trial
court relied on section 987.82 to order Liu to reimburse the public defender’s office for
costs incurred in representing him throughout the proceedings. Liu was ordered to pay
$9,249 for attorney fees by May 8, 2015. In making its order, the trial court failed to
provide Liu with notice and a hearing to determine his ability to pay as required by
section 987.8. The trial court also ordered Liu to pay a $40 court operations fee




1
       All further section references are to the Penal Code unless otherwise indicated.
2
        Section 987.8, subdivision (b) provides: “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 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 inquiry into the ability of the defendant to pay all or a
portion of the legal assistance provided.”

                                              2
(§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment fee (Gov. Code,
§ 70373). Liu timely appealed.
                                       DISCUSSION
I.     Attorney Fees
       On appeal, Liu contends the trial court’s failure to comply with the notice and
hearing requirements before imposing the $9,249 attorney fee violated his due process
rights. He thus urges us to vacate the trial court’s order and remand to the trial court for a
hearing on Liu’s ability to pay. The Attorney General concedes the trial court failed to
provide notice and a hearing, but contends Liu has forfeited his claim by failing to object
at the time the fee was imposed. Whether the forfeiture rule applies in this circumstance
is currently pending before the California Supreme Court. (People v. Aguilar, review
granted Nov. 26, 2013, S213571.)3 Nonetheless, there are a line of cases originating in
the Sixth District which address this issue and provide guidance in this matter.
It compels us to find that a noticed hearing was necessary. We reverse in part and
remand with directions.
       A. Relevant Case Law
       “‘[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.’ [Citation.] . . . Under [section 987.8], a court may order a defendant, who has
the ability to pay, to reimburse the county for the costs of legal representation. However,
the defendant must be given notice and afforded specific procedural rights, including the
right to present witnesses at the hearing and to confront and cross-examine adverse
witnesses. [Citations.] The statute also requires the court to advise a defendant—prior to
the furnishing of legal counsel—of his potential liability for the costs of court-appointed
counsel. [Citation.]” (People v. Phillips (1994) 25 Cal.App.4th 62, 72-73, fn. omitted.)

3
       In People v. Aguilar (2013) 219 Cal.App.4th 1094, cert. granted November 26,
2013, S213571, the First District applied the forfeiture rule to the imposition of attorney
fees (§ 987.8, subd. (b)), a probation supervision fee (§ 1203.1, subd. (a)(1)), and a
criminal justice administration fee (Gov. Code, §§ 29550-29550.3).


                                              3
          California courts have generally held that a failure to raise an objection to the
imposition of a fee or fine results in a forfeiture on appeal. (People v. McCullough
(2013) 56 Cal.4th 589, 598 (booking fee); People v. McMahan (1992) 3 Cal.App.4th 740,
750 (fine under section 290.3); People v. Forshay (1995) 39 Cal.App.4th 686 (restitution
fine).)
          The Sixth District in People v. Viray (2005) 134 Cal.App.4th 1186, 1215 (Viray)
carved out an exception to the forfeiture rule with respect to payment of attorney fees
under section 987.8. The Viray court focused on a defendant’s right to effective
assistance of counsel, reasoning, “[w]e do not believe that an appellate forfeiture can
properly be predicated on the failure of a trial attorney to challenge an order concerning
his own fees.” In refusing to apply the forfeiture doctrine in these circumstances, the
Viray court emphasized the inherent conflict of interest that exists when, at the time of
the order, the defendant is still represented by appointed counsel: “It seems obvious to us
that when a defendant’s attorney stands before the court asking for an order taking money
from the client and giving it to the attorney’s employer, the representation is burdened
with a patent conflict of interest and cannot be relied upon to vicariously attribute
counsel’s omissions to the client. In such a situation the attorney cannot be viewed, and
indeed should not be permitted to act, as the client’s representative. Counsel can hardly
be relied on to contest an order when a successful contest will directly harm the interests
of the person or entity who hired him and to whom he presumptively looks for future
employment.” (Viray, supra, 134 Cal.App.4th at pp. 1215-1216.) Viray has since been
cited for this proposition by our colleagues in Division One (People v. Verduzco (2012)
210 Cal.App.4th 1406) and in various unpublished opinions by other districts.
          The Sixth District in People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 (Lopez)
also refused to find forfeiture on the ground a challenge to the amount of the
reimbursement order is a sufficiency of the evidence issue, which may be raised for the
first time on appeal. Unlike Viray, the defendant in Lopez was sentenced to prison and
thus, section 987.8, subdivision (g)(2)(B) applied. That subdivision provides that
“‘a defendant sentenced to state prison shall be determined not to have a reasonably

                                                 4
discernible future financial ability to reimburse the costs of his or her defense” unless the
court finds unusual circumstances. (Lopez, supra, at p. 1537.) The court construed this
provision to require an express finding of unusual circumstances before ordering a state
prisoner to reimburse his or her attorney. (Ibid.)
       In 2010, the Sixth District relied on Viray and Lopez to reverse a trial court’s order
imposing attorney fees, a probation fee, and a booking fee. (People v. Pacheco (2010)
187 Cal.App.4th 1392, 1397.) The Supreme Court disapproved Pacheco’s holding solely
on the issue of whether a challenge to a booking fee may be made for the first time on
appeal. (People v. McCullough (2013) 56 Cal.4th 589 (McCullough).)
       In McCullough, the defendant challenged a $270.17 booking fee for insufficient
evidence. (McCullough, supra, 56 Cal.4th at p. 592.) The Third District affirmed the
booking fee order, finding that the defendant had failed to object at the time the fee was
imposed and thus, had failed to preserve the issue. (Ibid.) The Supreme Court affirmed
the Third District’s reasoning. The defendant argued that booking fee orders result from
the application of “‘an objective legal standard’” akin to orders for involuntary HIV
testing under section 1202.1 and People v. Butler (2003) 31 Cal.4th 1119. (McCullough,
supra, at pp. 596-597.)
       The Supreme Court disagreed with the defendant’s argument. It held “that
because a court’s imposition of a booking fee is confined to factual determinations, a
defendant who fails to challenge the sufficiency of the evidence at the proceeding when
the fee is imposed may not raise the challenge on appeal.” (McCullough, supra, 56
Cal.4th at p. 597.) A “defendant’s ability to pay the booking fee here does not present a
question of law . . . .” (Ibid.) The court explained, “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.’” (Ibid.) It concluded, “that because a court’s imposition of a
booking fee is confined to factual determinations, a defendant who fails to challenge the



                                               5
sufficiency of the evidence at the proceeding when the fee is imposed may not raise the
challenge on appeal.” (Ibid.)
       B. Analysis
       The Attorney General urges us to adopt the Supreme Court’s analysis in
McCullough and apply it to the attorney fee issue at hand. She contends that “just like
the booking fee in McCullough, the determination of appellant’s ability to pay attorney’s
fees pursuant to Penal Code section 987.8 is ‘confined to’ factual determinations.
Appellant does not allege a legal error, but a factual error that was not addressed below or
developed in the record because of his failure to object.”
       We decline to expand McCullough to apply to attorney fees when the Supreme
Court itself indicated that it intended a narrow holding. In disapproving Pacheco, the
court limited its holding to booking fees and left intact Pacheco’s holding on the ability
to pay attorney fees under section 987.8. (McCullough, supra, 56 Cal.4th at p. 599.)
Additionally, the Supreme Court did not disapprove of Viray. McCullough merely
distinguished Viray on the ground that Viray “merely references the general rule that an
appellate challenge to the sufficiency of the evidence ‘requires no predicate objection in
the trial court.’” (McCullough, supra, 56 Cal.4th at p. 599, fn. 2.)
       The high court explained that “neither forfeiture nor application of the forfeiture
rule is automatic” and that the “application of the forfeiture bar to sentencing matters is
of recent vintage.” (McCullough, supra, 56 Cal.4th at pp. 593-594.) The court
specifically distinguished the booking fee from other statutes that require trial courts to
consider a defendant’s ability to pay before imposing a fee or costs, including the
imposition of attorney fees under section 987.8. In reaching its conclusion about the
booking fee, McCullough reviewed nine other statutes and pointed out that, “[i]n contrast
to the booking fee statutes, many of these other statutes provide procedural requirements
or guidelines for the ability-to-pay determination.” (Id. at p. 598.) “We note these
[other] statutes because they indicate that the Legislature considers the financial burden
of the booking fee to be de minimis and has interposed no procedural safeguards or



                                              6
guidelines for its imposition. In this context, the rationale for forfeiture is particularly
strong.” (Id. at p. 599.)
        Importantly, the court distinguished between forfeiture as to a “de minimis”
booking fee and a situation which entailed “constitutional concerns,” citing to People v.
Stowell (2003) 31 Cal.4th 1107 (Stowell) and People v. Butler (2003) 31 Cal.4th 1119
(Butler). (McCullough, supra, 56 Cal.4th at pp. 595-596.) In these companion cases, the
court considered whether defendants could appeal involuntary HIV testing orders that
they had not contemporaneously challenged. In Butler, the court held that “a defendant
may challenge the sufficiency of the evidence” to support imposition of an involuntary
HIV testing order “even in the absence of an objection.” (Butler, supra, 31 Cal.4th at p.
1123.) In contrasting the analysis in Butler with the facts in McCullough, the court
explained:
       “Our analysis flowed from our recent sentencing forfeiture cases; we would
       review an appellate challenge not based on a contemporaneous objection if the
       trial court had been acting in excess of its authority. ‘Just as a defendant could
       appeal an HIV testing order, without prior objection, on the ground he had not
       been convicted of an enumerated offense [citations], he should be able to do so on
       the ground the record does not establish the other prerequisite, probable cause.
       We perceive no basis for distinguishing between the two statutory predicates.’
       (Id. at p. 1126, italics omitted.) ‘Without evidentiary support the order is invalid.’
       (Id. at p. 1123, italics omitted.)

       “In Butler, we also confronted the apparent problem that the factual component of
       a probable cause finding seemed to place it outside the rule that we will only
       review for the first time on appeal ‘“clear and correctable error”’ that is
       ‘independent of any factual issues presented by the record.’ [Citation.] We
       concluded that ‘[t]he fact that a testing order is in part based on factual findings
       does not undermine [the] conclusion’ [citation] or (Butler, supra, 31 Cal.4th at
       p. 1127) that a court lacks authority to order involuntary HIV testing in the
       absence of probable cause.

       “We observed that the issue presented in Butler extended beyond mere
       disagreement over the import of certain facts: ‘Probable cause is an objective legal
       standard—in this case, whether the facts known would lead a person of ordinary
       care and prudence to entertain an honest and strong belief that blood, semen, or
       any other bodily fluid capable of transmitting HIV has been transferred from the
       defendant to the victim.’ (Butler, supra, 31 Cal.4th at p. 1127.) A probable cause

                                               7
       determination requires ‘applying th[is] particular legal standard to the facts as
       found.’ (Ibid.; see Ornelas v. United States (1996) 517 U.S. 690, 696-697 [134
       L.Ed. 2d 911, 116 S. Ct. 1657] [in a warrantless search situation, determinations of
       reasonable suspicion and probable cause are reviewed de novo—the 4th Amend.
       does not turn “‘on whether different trial judges draw general conclusions that the
       facts are sufficient or insufficient to constitute probable cause’”].)

       “Butler, however, does not endorse review in the absence of an objection below
       merely because an ‘objective legal standard’ may be at issue. As we explained,
       ‘[o]ur conclusion in this case is controlled not only by the specific terms of [Penal
       Code] section 1202.1 but also by the general mandate that involuntary HIV
       testing is strictly limited by statute.’ (Butler, supra, 31 Cal.4th at p. 1128, fn. 5.)
       For these reasons, we explained, ‘we conclude’ the rule permitting challenges to
       the sufficiency of the evidence to support a judgment ‘should apply to a finding of
       probable cause pursuant to [Penal Code] section 1202.1, subdivision (e)(6).’
       (Butler, at p. 1126, italics added.) Here, by contrast, we find no similar
       statutory or constitutional concerns.” (McCullough, supra, 56 Cal.4th at pp.
       595-596 [emphasis added].)

       McCullough makes clear that the forfeiture rule applies to a booking fee because
there are no constitutional concerns raised in doing so. That is not the case with the
imposition of a $9,249 attorney fee. The due process issues associated with the
imposition of attorney fees without notice and hearing on the defendant’s ability to pay
are effectively identified in Viray and we need not repeat them here. In the absence of a
compelling reason to deviate from Viray, we remand the matter for a hearing to
determine Liu’s ability to pay as required under section 987.8. (People v. Flores (2003)
30 Cal.4th 1059, 1063 [remand is the proper remedy when a court orders a defendant to
pay attorney fees under section 987.8 without substantially complying with procedural
safeguards enumerated in that section].)
II.    Other Fees
       At sentencing, the trial court outlined the conditions of probation, including
payment of a $40 court operation assessment fee, a $30 criminal conviction assessment
fee, and the attorney fees described above. The parties agree this was error. The
imposition of these fees as probation conditions is unauthorized as a matter of law and
correctable without reference to factual findings. (People v. Kim (2011) 193 Cal.App.4th


                                              8
836, 842.) As a result, the appropriate remedy for this error is to modify the judgment to
delete the fees as conditions of probation and impose them as separate orders. (Id. at
p. 848.)
                                      DISPOSITION
       The order requiring defendant to reimburse $9,249 in attorney fees is vacated and
the matter remanded to the trial court to determine defendant’s ability to pay. Further,
the order imposing the $40 court operation assessment fee (§ 1465.8), the $30 criminal
conviction assessment fee (Gov. Code, § 70373), and the $9,249 attorney fees (§ 987.8)
as conditions of probation is modified to reflect that these fees are separate orders and not
conditions of probation. In all other respects, the judgment is affirmed.




                                                  BIGELOW, P.J.


We concur:



              RUBIN, J.



              FLIER, J.




                                             9
