People v. Hostia CA6

Filed 12/11/14 P. v. Hostia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.