Filed 9/2/14 P. v. Potts 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                           C071922, C072227

                   Plaintiff and Respondent,                                    (Super. Ct. Nos. SCR83473,
                                                                                        SCR87040)
         v.

JERAD MARSHALL POTTS,

                   Defendant and Appellant.




         Defendant pleaded guilty to assault with tear gas in Butte County case
No. SCR83473 (Pen. Code, § 22810, subd. (g)(1))1 and no contest to disobeying a
restraining order in Butte County case No. SCR87040 (§ 273.6). In exchange for
defendant’s plea, the People agreed to dismiss any remaining charges along with a
misdemeanor charge pending in Butte County case No. SCR84227.



1   Undesignated section references are to the Penal Code.

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       After reviewing the probation report and hearing argument from counsel, the trial
court sentenced defendant to three years in state prison; however, the trial court stayed
execution of that sentence, ordering defendant to serve three years of felony probation
and 360 days in county jail. The trial court also awarded defendant 199 days of custody
credit and imposed fines and fees totaling $2,846. Included in those fees were a $164 per
month probation supervision fee, a probation report preparation fee of $736, and $420 for
the services of the public defender. Defendant did not object to the fees imposed.
       Defendant now contends there is insufficient evidence to support the trial court’s
finding he had the ability to pay those fees. The People argue defendant has forfeited his
arguments by not objecting in the trial court. Except for defendant’s contention regarding
reimbursement of attorney fees, we agree defendant forfeited his arguments by not
objecting in the trial court.
       The right to appellate review of a nonjurisdictional sentencing issue is forfeited by
failing to raise the issue in the trial court. (People v. Gonzalez (2003) 31 Cal.4th 745,
751-755; People v. Scott (1994) 9 Cal.4th 331, 356.) This rule of forfeiture has
repeatedly been applied to appellate challenges of a fine or fee, including challenges
based on insufficiency of the evidence. (People v. McCullough (2013) 56 Cal.4th 589,
597-598; People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Valtakis (2003)
105 Cal.App.4th 1066, 1069-1072; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357;
People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.) Defendant therefore
forfeited his right to appeal those fees that are not attorney fees.
       Regarding the order for attorney fees, we agree with the court in People v. Viray
(2005) 134 Cal.App.4th 1186 (Viray) that a forfeiture cannot “properly be predicated on
the failure of [defense counsel] to challenge an order concerning his own fees” given the
“patent conflict of interest” (id. at p. 1215, italics omitted).
       “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

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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.” (§ 987.8, subd. (b).)
       Section 987.8, subdivision (g)(2) defines “ ‘[a]bility to pay’ ” as “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.
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.
       “(C) The likelihood that the defendant shall be able to obtain employment within a
six-month period from the date of the hearing.
       “(D) Any other factor or factors which may bear upon the defendant’s financial
capability to reimburse the county for the costs of the legal assistance provided to the
defendant.”
       A determination that a defendant has the ability to pay must be made before the
defendant can be ordered to pay attorney fees. (§ 987.8, subd. (e).) While such a finding
may be implied, the order cannot be upheld on review unless it is supported by
substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v.
Kozden (1974) 36 Cal.App.3d 918, 920.)

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         We review for substantial evidence a trial court's order requiring a defendant to
pay the costs of his or her public defender. (Viray, supra, 134 Cal.App.4th at p. 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.)
         Here, defendant was not given proper notice that his ability to pay attorney fees
would be determined at sentencing. Defendant was given notice prior to the appointment
of counsel that he might be liable for attorney fees after judgment was rendered. The
People suggest this is sufficient notice. Such notice, however, is a separate statutory
requirement, distinct from notice of the hearing on a defendant’s ability to pay attorney
fees that occurs “upon conclusion of the criminal proceedings.” (§ 987.8, subd. (b); see
id. at subd. (f).)
         The probation report also did not provide defendant with sufficient notice that his
ability to pay attorney fees would be determined at sentencing. In People v. Phillips
(1994) 25 Cal.App.4th 62, the Court of Appeal found a probation report “which included
in its recommendations ‘Attorney Fees if appropriate’ ” was sufficient notice that the
defendant’s ability to pay attorney fees would be determined at sentencing (id. at p. 74).
Here, however, the probation report makes no mention of attorney fees. Rather, the
report indicates only that defendant “should have the ability to pay fines and fees as
ordered by the Court.”
         Moreover, the record does not show that defendant was given an opportunity to
challenge the amount of reimbursement ordered, and there is no evidence in the record
supporting that amount. The trial court simply ordered defendant to pay $420 in attorney
fees. As in Viray, then, the amount of the reimbursement order here “is entirely
unsupported by evidence” and has been “allowed without opposition.” (Viray, supra,

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134 Cal.App.4th at p. 1217.) Therefore, we must reverse the order and remand this
matter to the trial court. (See id. at pp. 1217-1219.)
                                      DISPOSITION
       The order to pay attorney fees is reversed and the matter is remanded for notice
and hearing under section 987.8, subdivision (b). In all other respects, the judgment is
affirmed. The trial court is directed to amend the abstract of judgment to reflect the
resolution of this matter and to send a certified copy thereof to the Department of
Corrections and Rehabilitation reflecting the resolution of this matter.



                                                            RAYE              , P. J.

We concur:



         MAURO              , J.



         DUARTE             , J.




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