Filed 2/11/15 P. v. Gray 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060206

v.                                                                       (Super.Ct.No. FSB1304379)

DOUGLAS ROBERT GRAY,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,

Judge. Affirmed.

         Neil Auwarter, 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, William M. Wood and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.




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         Pursuant to a plea agreement, defendant and appellant Douglas Robert Gray pled

no contest to one count of second degree commercial burglary. (Pen. Code, § 459.)1

Pursuant to the agreement, the trial court placed him on probation for a period of three

years, under specified terms and conditions. The court also ordered him to pay various

fees and fines, including $500 in appointed counsel fees.

         On appeal, defendant contends that the court failed to conduct a hearing on his

ability to pay attorney fees, and there is insufficient evidence to support the court’s

finding that he had the ability to pay.2 The People argue that defendant has waived his

claims. We affirm.

                               PROCEDURAL BACKGROUND

         Defendant was charged by felony complaint with attempted residential burglary

(Pen. Code, §§ 664, 459, count 1), carrying a dirk or dagger (Pen. Code, § 21310, count

2), possession of burglar’s tools (Pen. Code, § 466, count 3), and being under the

influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 4).

Pursuant to a plea agreement, defendant pled no contest to second degree commercial

burglary (Pen. Code, § 459, count 5), a charge added by the prosecution. In accordance

with the agreement, the court dismissed all other charges and allegations and placed

defendant on probation for three years.

         1   Any further statutory reference will be to the Penal Code, unless otherwise
noted.

         2
         We note that defendant additionally originally argued that the trial court
miscalculated his presentence custody credits. He subsequently withdrew this claim as
moot after the trial court corrected the credits.


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                                         ANALYSIS

         The Court Properly Ordered Defendant to Pay Appointed Counsel Fees

       Defendant contends that the court failed to conduct a hearing on his ability to pay

attorney fees, and there is insufficient evidence to support a finding that he had the ability

to pay. Thus, he asserts this court should strike the attorney fees order. The People argue

that defendant expressly waived his right to a hearing to determine his ability to pay. We

agree with the People.

       Section 987.8 “empowers the court to order a defendant who has received legal

assistance at public expense to reimburse some or all of the county’s costs.” (People v.

Viray (2005) 134 Cal.App.4th 1186, 1213.) Under the terms of the statute, the trial court

may, after notice and hearing, order a defendant to pay all or a portion of the costs of his

legal representation if the court determines the defendant has the “present ability . . . to

pay” such costs. (§ 987.8, subd. (b).)

       Here, defendant was represented by a deputy public defender. Pursuant to the plea

agreement, defendant agreed to plead no contest to second degree commercial burglary

(§ 459, count 5), in exchange for the dismissal of the other counts and being placed on

probation for three years. Defendant signed a written plea agreement. He also signed a

written document (the document), which listed the terms and conditions of probation as

well as the findings and orders of the court. The findings and orders portion of the

document stated that, by signing the form, defendant was “agreeing with and accepting

the Court’s imposition of the following fees, fines, costs, reimbursements, orders and

findings as well as those in the attached Addendum(s): [¶] . . . [¶] . . . The Court finds


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that the Defendant has the ability to pay appointed counsel fees. . . . [¶] [And b]ased on

Defendant’s ability to pay, Court orders appointed counsel fees in the amount of $500.00

. . . .” (Italics added.) At the bottom of the document, just above the signature line, the

document further stated: “I have read, understand and agree to, (and waive any further

hearing regarding) all the Terms and Conditions of Probation . . . listed above . . . as well

as to all the Court’s Findings and Orders, including all fines, fees, reimbursements,

restitution and costs listed therein and the ability to pay those costs.” (Italics added.)

       When imposing sentence, the court ordered defendant to pay $500 in attorney fees

and told him, “if you think that’s more than you can afford, you can appeal that amount,

and your attorney can explain that procedure to you.” The court also referred to the list

of probation terms in the document, and asked defendant if he read and understood all of

the terms. Defendant said he did, and said he did not have any questions about any of the

terms. He also affirmed that he signed the document. The minute order stated that the

court found defendant had the ability to pay appointed counsel fees, and that based on his

ability to pay, it ordered him to pay $500 in appointed counsel fees. The court also

ordered defendant to pay various other fines and fees, and set the total monthly payment

for all fines or fees to be $45 per month.

       The record plainly shows that the ability to pay finding and the order to pay

attorney fees were in the document listing defendant’s probation conditions and the




                                              4
findings and orders of the court.3 Defendant confirmed that he understood and signed the

document.4 When he signed the document, he agreed that he would be ordered to pay the

fees in the manner specified therein. That is, he expressly agreed with the court’s finding

that he had the ability to pay appointed counsel fees, and he agreed to pay appointed

counsel fees in the amount of $500. Defendant’s agreement that he possessed the ability

to pay provides the basis for the court’s finding.5 Furthermore, by signing the document,

defendant expressly waived his right to a hearing to determine his ability to pay. We note

that the most basic rights of criminal defendants, including provisions intended for their

benefit, are subject to waiver. (People v. Johnson (2002) 28 Cal.4th 1050, 1055.)

       In his reply brief, defendant’s only response to the People’s assertion that he

waived his right to a hearing is that the waiver claim must fail because his waiver

“occurred after the court expressly advised him [of] his remedy, if he lacked the ability to

pay the attorney[] fees, was to appeal.” (Italics omitted.) However, the record indicates

that defendant signed the document waiving his right to a hearing regarding the court’s

findings and orders on the day of the plea and sentencing hearing. At that hearing, the

       3 The form correctly did not include attorney fees as a condition of probation.
(People v. Bradus (2007) 149 Cal.App.4th 636, 641.)

       4 Although the court specifically referred to the “long list of terms of probation,”
when it asked defendant if he read and understood the terms in the document, it is
reasonable to infer that defendant read all the terms in the document. Moreover,
defendant confirmed with the court that he signed the document, which meant that he
read, understood, and agreed to all the terms of probation and findings and orders of the
court.

       5 It is unclear why, after ordering defendant to pay $500 in attorney fees, the court
told him he could appeal that amount if he thought he could not afford it.


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court referred to the document and asked defendant if he read all the terms, if he

understood them, if he had any questions about them, and if he accepted probation on all

of the terms. Defendant affirmed that he had read and understood all the terms, and that

he had already signed the document. Thus, contrary to his claim that he waived his right

to a hearing after the court advised him of his remedy to appeal, the record demonstrates

that defendant read and signed the document before the court’s advisal. We note that

defendant did not and has not raised any issue that the document he signed, or his

acceptance of the court’s findings and orders listed therein, was invalid. We further note

that defendant was placed on probation, not in prison, and he does not claim on appeal

that he lacks the ability to pay appointed counsel fees.

       In view of the foregoing, we see no need to strike the appointed counsel fees

order, as defendant has requested.

                                      DISPOSITION

       The order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                                           J.
We concur:


RAMIREZ
                        P. J.


McKINSTER
                           J.


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