People v. Bergo CA3

Filed 3/26/15 P. v. Bergo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Amador) ----

THE PEOPLE, C076080

Plaintiff and Respondent, (Super. Ct. No. 11-CR-18010)

v.

JUSTIN BRYAN BERGO,

Defendant and Appellant.

Defendant Justin Bryan Bergo appeals from the postconviction order of the trial court that he reimburse the county for the services of appointed counsel in a criminal prosecution. (Pen. Code, § 987.8.)1 Appellant’s court-appointed counsel has briefed no

1 Undesignated statutory references are to the Penal Code.

1

issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).2 Finding no error, we shall affirm.

In accordance with People v. Kelly (2006) 40 Cal.4th 106, 110, we provide a summary of the underlying offense and the proceedings in the trial court. On November 19, 2013, defendant was sentenced to life in prison without the possibility of parole following his conviction for first degree murder with a lying-in-wait special circumstance. (§§ 187, subd. (a), 190.2, subd. (a)(15).)3 Amador County had filed a motion for reimbursement of legal assistance for that case on November 5, 2013. The following evidence was presented at the contested hearing on the county’s motion on January 17, 2014.

An employee of Amador County General Services testified that the county’s total expenditure for defendant’s legal services was $230,042.82. Defendant owned real property in Aptos. It had a mortgage of $322,000 and an equity line of credit for

2 It is questionable that defendant is entitled to an independent review by this court as contemplated by Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] and its progeny including Wende, supra, 25 Cal.3d 436. Anders established certain procedures for state appellate courts that are “prophylactic” in nature and apply to appointed counsel’s representation of an indigent criminal defendant in his first appeal of right in a criminal action. (In re Sade C. (1996) 13 Cal.4th 952, 977-978.) An order to reimburse the county for the costs of legal representation (§ 987.8) is solely enforceable as a civil order, that is, in the manner for enforcement of money judgments generally. Such an order may not be made a condition of probation and may not be enforced by contempt. (§ 987.8, subd. (e); People v. Hart (1998) 65 Cal.App.4th 902, 906-907.) Defendant does not face incarceration for failing to comply with this order of the court. Therefore, the hearing to determine money owed the county is more akin to a civil than a criminal action. 3 We construe defendant’s motion for judicial notice of the record in his pending appeal from his murder conviction, People v. Bergo (C075230), as a motion to incorporate by reference the appellate record in that case. (See Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148 [judicial notice proper only to the existence and not the contents of transcripts].) So construed, the motion is granted.