Opinion
H044693
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID MADRIZ ANDRADE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1513845)
Defendant David Madriz Andrade challenges the trial court's order that he pay $500 in fees for the services of his court appointed counsel. We find that the issue of defendant's ability to pay the attorney fees is forfeited on appeal because defense counsel did not object in the trial court. We affirm the judgment.
I. STATEMENT OF THE CASE
The underlying facts are omitted because they are not relevant to the issues on appeal.
On December 1, 2016, defendant was charged by information with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count one); battery causing serious bodily injury (§§ 242, 243, subd. (d); count two); and misdemeanor simple battery (§§ 242, 243, subd. (a); count three). The information also alleged that defendant personally inflicted great bodily injury as to counts one and two (§§ 12022.7, subd. (a), 1203, subd. (e)(3), 667, 1192.7).
All further statutory references are to the Penal Code. --------
Defendant pleaded no contest to count two, battery causing serious bodily injury (§§ 242, 243, subd. (d)), and count three, misdemeanor simple battery (§§ 242, 243, subd. (a)). Defendant admitted the great bodily injury enhancement on count two (§ 12022.7, subd. (a)). Count one, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), was dismissed pursuant to a negotiated plea agreement. Defendant executed a plea agreement form waiving his constitutional rights. The form also provided that the court could impose attorney fees for court appointed counsel based on defendant's ability to pay.
On March 24, 2017, the trial court suspended the imposition of sentence and placed defendant on probation for a period of three years with various conditions. The court ordered defendant to serve 364 days in county jail, with one day of credit for time served. The probation department's presentence report mentioned the possible imposition of attorney fees: "NOTE: Attorney fees if appropriate." The court ordered defendant to pay attorney fees in the amount of $500. Defendant's court appointed attorney did not object to the imposition of attorney fees. The attorney fee order was not a condition of probation.
Following a hearing on May 12, 2017, the court ordered defendant to pay $18,900 in restitution to the victim, and $33,447.45 to the California Victim Compensation Board as conditions of probation.
On May 17, 2017, defendant filed a timely notice of appeal.
II. DISCUSSION
Section 987.8 provides: "In any case in which a defendant is provided legal assistance . . . 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" of legal assistance provided by "the public defender or private counsel appointed by the court." (§ 987.8, subd. (b).) The determination that a defendant has the present ability to pay such attorney fees is a prerequisite for entry of an order that defendant pay all or part of the cost of legal assistance. (§ 987.8, subd. (e).) At the hearing, the defendant is entitled to rights, including the right to be heard in person, to present evidence, to confront and cross examine witnesses, to disclosure of the evidence against him or her, and to a written statement of the court's findings. (§ 987.8(e)(1)-(5).)
In the context of section 987.8, " 'ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. 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. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." (§ 987.8, subd. (g)(2).)
A finding that a defendant has the ability to pay attorney fees pursuant to section 987.8, may be express or implied based upon the conduct and content of the hearings. (People v. Phillips (1994) 25 Cal.App.4th 62, 71 superseded by statute on another issue in People v. Trujillo (2015) 60 Cal.4th 860 (Trujillo).) Whether the findings are express or implied, the order must be supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
B. Appellate Forfeiture
Defendant argues that the trial court improperly ordered him to pay $500 in attorney fees under section 987.8 because there is not sufficient evidence to support a finding that he had the ability to pay. Although no objection to the fee order was raised in the trial court at the time it was imposed, defendant further argues that he did not forfeit the issue by failing to object in the trial court, asserting that appointed counsel had a conflict of interest regarding the assessment of attorney fees.
In support of his claim that defendant did not forfeit his right to challenge the attorney fee order on appeal, Defendant cites this court's decision in People v. Viray (2005) 134 Cal.App.4th 1186 (Viray), which addressed the issue of whether the failure of a deputy public defender or appointed counsel to object to the imposition of attorney fees failed to preserve a challenge to the order for appeal. In Viray, the deputy public defender had in fact submitted a written request seeking $9,200 in fees. (Id. at p. 1193.) Then, after remaining largely silent at the sentencing hearing, counsel stated, "We're asking the Court to assess attorney's fees . . . We're asking—the amount we're asking is $9,200 in attorney's fees." (Id. at pp. 1193, 1216, italics added.)
On these facts, this court stated: "We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees. It seems obvious to us that when a defendant's attorney stands before the court asking for an order taking money from the client and giving it to the attorney's employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel's omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client's representative." (Viray, supra,134 Cal.App.4th at p. 1215; original italics.) Further, the Court noted that "[c]ounsel was at that moment clearly representing his employer, whose interests were flatly contrary to defendant's. To all appearances, counsel had abandoned his erstwhile client to pursue the pecuniary interests of his boss." (Id. at p. 1216.)
Subsequent to this court's decision in Viray, the California Supreme Court determined in People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar) that a defendant's failure to object to the imposition of various fees in the trial court, including attorney fees pursuant to section 987.8, precluded him from raising a challenge to the fees on appeal. Explicitly adopting the reasoning of Aguilar's companion case Trujillo, supra, 60 Cal.4th 850 [defendant forfeits an appellate challenge to the sufficiency of evidence supporting a Government Code section 29550.2, subdivision (a) booking fee if an objection is not raised in the trial court] the Court allocated responsibility to the defendant to object to the imposition of the fees in question. The Court reasoned that requiring a defendant to contemporaneously object to a fees order is appropriate because it "advance[s] the goals of proper development of the record and judicial economy," particularly "[g]iven that imposition of a fee is of much less moment than imposition of sentence," which also requires an objection in the trial court to be challenged on appeal. (Trujillo, at p. 857.) The decisions in Aguilar and Trujillo are clear: the failure to object contemporaneously in the trial court to the imposition of attorney fees under section 987.8 subdivision (b) will result in forfeiture of an appellate challenge, including to the sufficiency of evidence to support a finding that the defendant can pay them.
Defendant argues that in Aguilar the Supreme Court reserved one circumstance that should cause us to find an exception to the application of the rule of appellate forfeiture in the context of attorney fee reimbursement orders under section 987.8. Citing Viray, the Supreme Court noted in footnote 4 that Aguilar ". . . does not present, and we therefore do not address, the question whether a challenge to an order for payment of the cost of the services of appointed counsel is forfeited when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part. (See, e.g., People v. Viray (2005) 134 Cal.App.4th 1186, 1216-1217.)" (Aguilar, supra, 60 Cal.4th at p. 868, fn. 4.) However, in Viray, defendant's public defender affirmatively urged that the court order defendant to pay $9,200 in attorney fees, thus creating a patent conflict of interest with his client. In contrast, here, as in Aguilar, defense counsel did not advocate in opposition to his client's interests and request an order that defendant pay attorney fees. Rather, the fee order was initiated by the trial court after notice in the probation report for sentencing.
Defendant nonetheless argues that an inherent conflict of interest existed here based on broad language in Viray, where this court considered in dicta the notion that in every instance where a trial court seeks to impose section 987.8 attorney fees, appointed counsel or a deputy public defender could have an inherent conflict with the client even if the attorney herself is not making the reimbursement request. The Viray court noted that while particular deputy public defenders or appointed counsel might ". . . feel personally disinterested in a reimbursement order, and might even be willing to oppose it on behalf of the defendant...the spectacle of an attorney representing a client in connection with an order requiring that client to pay for the attorney's services, however attenuated the connection may be in fact, carries the patent appearance of at least a vicarious adversity of interests." (Vela, supra, 134 Cal.App.4th at p. 1216.) The core problem is that "[c]ounsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment." (Id. at pp. 1215-1216.)
We conclude that the Supreme Court in Aguilar did not intend footnote 4 to include such a broad definition of conflict of interest. Common sense dictates that if such a conflict of interest could be asserted in every case in which attorney fees are ordered under section 987.8, Aguilar's forfeiture rule would be the exception, not the rule. The Court in Aguilar had the opportunity to distinguish attorney fees orders as a whole from other fees and to exempt them from the requirement that they be preserved by a contemporaneous objection. The Court did not do so. We therefore decline to extend the dicta of Viray to find a conflict of interest between every public defender or appointed counsel and his or her client where the court orders payment of all or a portion of the legal assistance provided under section 987.8 subdivision (b). We interpret footnote 4 in Aguilar to apply to those instances where counsel is patently in conflict with the client because attorney fees are requested "by defense counsel himself [or herself]," and limit Viray to its facts. (Viray, supra, 134 Cal.App.4th at p. 1216.)
We are bound by the Supreme Court's decision in Aguilar. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore find that defense counsel's failure to object to the court's order that defendant pay $500 in attorney fees for the services of court appointed counsel forfeited the issue for appeal. (Aguilar, supra, 60 Cal.4th 862.)
C. Ineffective Assistance of Counsel
Defendant argues that if the issue of his ability to pay attorney fees is forfeited based on a failure to object, he was denied effective assistance of counsel. We disagree.
To succeed on a claim of ineffective assistance of counsel, defendant must show both that counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate and that defendant was prejudiced as a result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Strickland v. Washington (1984) 466 U.S. 668, 684 [discussing federal constitutional rights]; People v. Pope (1979) 23 Cal.3d 412, 422 [discussing both state and federal constitutional rights].)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decision making must be evaluated in the context of the available facts.' " (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (Id. at p. 926.)
Here it is not possible to conclude that counsel lacked a tactical reason for objecting to the attorney fees order, for there could be a reasonable explanation for counsel's actions. At the sentencing hearing, defense counsel's apparent goal was to keep his client out of custody so that defendant could continue to support his family. He requested that the court allow defendant to participate in an electronic monitoring program rather than be required to serve a 364-day term in the county jail. Defense counsel stated: "[Defendant] has a disabled son. He suffers from hemophilia. His income is imperative for the family. His support to his wife and his son are also very important [to his] family." Counsel was asserting that his client needed to be out of custody to support his family, and he implied that his client was able to provide that support. An objection to the attorney fees order based on defendant's inability to pay would have undercut the financial argument supporting a less restrictive custodial alternative. Prioritizing defendant's custodial status over the imposition of a $500 fee which, because it is not a condition of defendant's probation, cannot result in future incarceration if not paid, was a reasonable tactical decision by competent defense counsel.
However, even assuming counsel's failure to object to the attorney fees order was not a reasonable tactical decision, defendant did not suffer prejudice as a result. As stated by the court in Aguilar, "a defendant who fails to object in the trial court to an order to pay. . . attorney fees is not wholly without recourse. . . . 'At any time during the pendency of the judgment [ordering payment of attorney fees], a defendant against whom a judgment has been rendered may petition the rendering court to modify or vacate its previous judgment on the grounds of a change in circumstances with regard to the defendant's ability to pay the judgment.' (§ 987.8, subd. (h).)" (Aguilar, supra, 60 Cal.4th at p. 868.) If defendant is unable to pay $500 in attorney fees, particularly after the imposition of the $52,347.45 restitution order approximately six weeks after the imposition of the attorney fee order, while he is on probation he may file a petition for modification of the judgment to reduce or delete the attorney fee order. (§ 987.8, subd. (h).)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.