People v. Prescott

Opinion

BIGELOW, P. J. Errol Prescott was convicted of a felony and sentenced to five years in county jail pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act). (Pen. Code, § 1170, subd. (h)(5)(B).)1 Without notice, a hearing or a determination of Prescott’s ability to pay, the trial court ordered Prescott to pay $400 in attorney fees. Prescott contends he should have been granted a noticed hearing. Prescott further argues that the presumption that a defendant sentenced to state prison does not have the ability to pay defense costs (§ 987.8, subd. (g)(2)(B)) should apply because he was sentenced on a felony under the Realignment Act. We find the plain language of the statute prohibits application of the inability to pay presumption to county jail sentences. We vacate the order imposing $400 in attorney fees and remand the case to the trial court to conduct a hearing as contemplated by section 987.8.

DISCUSSION

Prescott pled no contest to a felony charge of unlawful driving or taking of a vehicle and also admitted to serving four prior prison terms. (Veh. Code, § 10851, subd. (a); Pen. Code, § 667.5, subd. (b).) He was sentenced to five [1476]years in county jail pursuant to the Realignment Act. (§ 1170, subd. (h)(5)(B).) Various fines and fees were imposed. The trial court also assessed $400 in attorney fees pursuant to section 987.8.

Prescott contends the trial court improperly assessed attorney fees, for two reasons. First, it did so without making a determination that Prescott had the ability to pay after notice and a hearing as required by section 987.8. Second, Prescott claims the presumption in section 987.8, subdivision (g)(2)(B)—that a defendant sentenced to state prison does not have the ability to pay defense costs—should have applied. As a result, Prescott requests we reverse the $400 fee order and strike it from the judgment. The Attorney General urges us to remand this case back to the trial court for “an opportunity to consider the propriety of an attorney fee award after a properly noticed hearing.” We agree that remand is required for a hearing, but find the presumption embodied in section 987.8, subdivision (g)(2)(B) inapplicable to defendants sentenced to county jail.

Under section 987.8, subdivision (b), “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.” The Attorney General concedes that Prescott did not have either notice of a hearing or a hearing itself. The preferred solution when a trial court fails to make a necessary finding is to remand the case for a new hearing on the matter. (See People v. Flores (2003) 30 Cal.4th 1059, 1068-1069 [135 Cal.Rptr.2d 63, 69 P.3d 979]; People v. Verduzco (2012) 210 Cal.App.4th 1406, 1421 [149 Cal.Rptr.3d 200].) Since the trial court failed to consider Prescott’s ability to pay as required by section 987.8, we remand the matter for a new hearing.