People v. Ojeda CA4/3

Filed 5/6/15 P. v. Ojeda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049758

v. (Super. Ct. No. 14HF0114)

DANI LYN OJEDA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed in part and remanded. Patrick E. DuNah and Loleena Ansari, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Following a guilty plea, the court ordered defendant Dani Ojeda (Ojeda) to pay $200 in attorney fees without affording her the opportunity to be heard on her ability to pay. On appeal, she contends the court violated the provisions of Penal Code section 987.8, subdivision (b). The Attorney General agrees, as do we. We reverse and remand.

I FACTS Ojeda pled guilty to: (1) possession of methamphetamine, a controlled substance, in violation of Health and Safety Code section 11377, subdivision (a); (2) possession of Darvocet, a designated substance, in violation of Health and Safety Code section 11375, subdivision (b)(2); and (3) possession of controlled substance paraphernalia, in violation of Health and Safety Code section 11364.1, subdivision (a). She was placed on three years’ probation and ordered to serve 180 days in the county jail. A form “WAIVER OF HEARING REGARDING PUBLIC DEFENDER OR COURT APPOINTED COUNSEL FEES AND COURT ORDER” was filed with the court. The form cited Penal Code section 987.8. It also contained a section entitled “WAIVER AND CONSENT TO ORDER” which stated: “I understand the above and waive my right to a Court hearing. I further understand and agree that the Court may enter a judgment against me for ___ $150.00 misdemeanor ___ $200.00 felony.” The $200.00 box was checked. However, while there was a signature line for Ojeda, she did not sign the form. Instead, the words “NO ABILITY” were written on the form in hand. At the hearing at which Ojeda pled guilty, the court asked whether she had the ability to pay and said, “The attorney fees are $200.” Ojeda’s counsel responded that he “was asking for a waiver of that based on no ability.” The court denied the request,