People v. Johnson CA3

Filed 7/28/15 P. v. Johnson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C077455

Plaintiff and Respondent, (Super. Ct. No. CM041178)

v.

LARRY ANDREW JOHNSON,

Defendant and Appellant.

Defendant Larry Andrew Johnson pled no contest to driving under the influence with a high blood-alcohol level and admitted serving a prior prison term. The trial court sentenced him to an aggregate term of four years in state prison. The court also awarded him 116 days of custody credit and imposed numerous fines and fees, including a $420 fee for the services of the public defender. Defendant timely appealed.

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Defendant now contends: (1) the trial court erred in failing to provide him with notice and a hearing on his ability to pay the attorney fees; (2) there is insufficient evidence in the record of his ability to pay; and (3) the record contains no information on the actual cost of his public defender. We agree and strike the order to pay attorney fees. DISCUSSION We dispense with a recitation of the facts of this case, as they are not relevant to our determination of the issues on appeal. It suffices to say that the trial court ordered defendant to pay $420 in attorney fees at the time of sentencing, without discussion, and the fee was not listed in the probation report or otherwise specifically mentioned until imposed. No mention was made of defendant’s ability to pay. The People do not dispute these facts. Defendant did not object at sentencing to the fee. Penal Code section 987.81 permits a court to order a defendant to pay the cost of court-appointed counsel after a hearing to determine if defendant has the ability to pay. “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.” (Id., subd. (b).) In determining this ability to pay, the court may consider both defendant’s present financial position and the defendant’s reasonably discernible future financial position, limited to six months in the future. (Id., subd. (g)(2)(B).) “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.” (Ibid.)