People v. Schnebly CA1/3

Filed 3/28/14 P. v. Schnebly CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A136943 v. ARONE SCHNEBLY, (Mendocino County Super. Ct. No. CR11-18566) Defendant and Appellant.

In exchange for a 15-year prison sentence, Arone Schnebly pleaded no contest to voluntary manslaughter while armed with a shotgun, attempted murder, and attempted robbery. His appeal contests his obligations to pay attorney fees of $1,000, a presentence report fee of $652, and a restitution fine of $3,600. He did not challenge the fees or fine in the trial court, and we conclude that he thereby forfeited his ability to do so in this appeal. He also has not shown that his counsel was ineffective for failing to object. We affirm. I. BACKGROUND When counsel was appointed to represent him, Schnebly was not advised that he could potentially be liable for attorney fees. The presentence report recommended imposition of a $652 presentence report fee and a $3,600 restitution fine, but did not refer to attorney fees. The report stated that Schnebly earned a GED in 1992. He worked as a construction laborer from 2009 to 2011, and “off and on” as a security guard from 2001 to 2011. Next to “Current Income” and “Assets,” the report stated, “None.” Schnebly

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divorced in 2011, the year the crimes were committed. In a letter to the court attached to the report, Schnebly said, “I had a family wife kids whom I supported but have since los[t] because of this case.” At sentencing, defense counsel stated that he had discussed the presentence report with Schnebly. Counsel did not object when the court imposed the $652 presentence report fee and the $3,600 restitution fine as recommended in the report. The court told Schnebly: “I’m going to impose an attorney’s fee of $1,000. You have the right to contest that attorney’s fee before it becomes an order of the court. You’ll be served with a piece of paper today that shows your rights in that regard. If you do not timely contest that, it becomes a court order. [¶] Do you understand that with respect to the attorney’s fee?” Schnebly answered, “Yeah. I won’t contest that.” The court said, “Okay,” and moved on to other matters. II. DISCUSSION A. Attorney Fees Schnebly argues that he was ordered to pay attorney fees without being afforded due process. “ ‘[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.’ ” (People v. Smith (2000) 81 Cal.App.4th 630, 637.) Penal Code section 987.8, subdivision (f) requires that defendants be advised about their possible liability for the fees of attorneys who will be appointed to represent them.1 The statute ensures, consistent with due process, that “the defendant receive[s] ‘ “notice reasonably 1 The statute states: “Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. The notice shall inform the defendant that the order shall have the same force and effect as a judgment in a civil action and shall be subject to enforcement against the property of the defendant in the same manner as any other money judgment.” Subsequent statutory references are to the Penal Code.