Opinion
E051365 Super.Ct.No. FCH1000030
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DAVID BACCA, Defendant and Appellant.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lise S. Jacobson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown, Judge. Affirmed as modified with directions.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lise S. Jacobson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
On May 27, 2010, following a jury trial, defendant Anthony David Bacca was convicted of carrying a concealed dirk or dagger. (Pen. Code, § 12020, subd. (a)(4).) That same day, he admitted that he suffered a prior strike. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Defendant was sentenced to state prison for a total term of four years. Also, he was ordered to pay, inter alia, $150 in attorney fees and $250 for investigation costs pursuant to section 1203.1, subdivision (b). On appeal, he contends his statutory and due process rights were violated when the trial court refused to allow his family members and employer to make statements at the sentencing hearing. He further challenges the fees imposed on him.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS
At approximately 11:50 p.m. on January 26, 2010, defendant and another person were sitting inside the cab of a pickup truck parked in front of a bar in Chino when they were contacted by officers. The officer at the passenger door observed the top part of what he believed to be a rubber handle of a small caliber handgun in defendant's waistband while defendant was leaning forward, causing his T-shirt to lift up. Upon closer observation, the officer saw that it was a knife with a rubberized handle and a seven-inch blade in a sheath. Defendant claimed he used the knife for fishing. However, he also admitted he had just left the bar, he had a strong odor of alcohol on his breath, and he was slurring his words.
III. DEFENDANT'S REQUEST TO ALLOW FAMILY AND EMPLOYER
ADDRESS THE COURT AT SENTENCING
Prior to sentencing, defendant requested that the court entertain comments from his family and employer. The trial court denied the request. On appeal, defendant contends that by "refusing to allow [his] family and his employer to testify on [his] behalf, the court violated [his] Fourteenth Amendment protections under the Due Process Clause, denying him a meaningful opportunity to be heard at sentencing." We disagree.
In People v. Evans (2008) 44 Cal.4th 590 (Evans), the California Supreme Court discussed a defendant's right to address the court at sentencing. It held that, under sections 1200 and 1201, a defendant has a statutory right to state reasons why judgment should not be pronounced at all, but not to state reasons why a more lenient judgment should be pronounced. (Evans, at p. 597.) In addition, under section 1204, a defendant does have a statutory right to state why a more lenient judgment should be pronounced, but only under oath and subject to cross-examination. (Evans, at p. 598.) The court added there is no federal due process right to address the court at sentencing other than under oath and subject to cross-examination. (Id. at p. 600.)
In Evans, at sentencing after discussing the appropriate sentence, defense counsel stated, "'Submitted.'" (Evans, supra, 44 Cal.4th at p. 593.) During the pronouncement of judgment, the defendant asked, "'Can I speak, your honor?'" The trial court replied, "'No.'" (Ibid.)The Supreme Court noted, "Defense counsel made no attempt to call defendant to testify, and defendant himself did not ask to do so." (Id. at p. 600.) It concluded, "Under these circumstances, there was a forfeiture of defendant's right to testify in mitigation of punishment." (Ibid.)Finally, the court stated: "It was only after the trial court had denied probation and was in the process of sentencing defendant to prison that defendant asked, 'Can I speak, your honor?' Assuming for the sake of argument that this may be construed as a request to testify in mitigation of punishment, it came too late; it should have been made before the court started to pronounce defendant's sentence. [Citations.]" (Ibid.)
Here, prior to pronouncement of sentence, defendant offered no comments on the probation officer's report; however, unlike in Evans, he did request that his family and employer be allowed to "make comments to the Court, if the Court would entertain." It does appear that he was asking that his family and employer address the court directly, rather than to testify. As such, the People point out that defendant has forfeited his right to present such evidence. (Evans, supra, 44 Cal.4th at p. 600.) In response, defendant contends that whether the word "testimony" or "comment" was used, "the choice of words by counsel would have resulted in the same response from the court: the court summarily dismissed [defendant's] request by the single word 'no,' and proceeded to sentencing." Moreover, defendant claims that any objection to the court's summary dismissal of his request "would have been futile." In an abundance of caution, we assume, without deciding, that the asserted error has not been forfeited, and that the trial court erred by failing to allow defendant's family and employer to testify under oath at sentencing.
Even if so, however, the error is exclusively one of state statutory law. Admittedly, Evans held only that there is no federal constitutional right "to make an unsworn personal statement without being subject to cross-examination." (Evans, supra, 44 Cal.4th at p. 600.) It did not directly address whether there is a federal constitutional right to make a sworn personal statement. Nevertheless, given the holding of Evans, an erroneous refusal to allow the defendant to testify at sentencing is just a species in the genus of the erroneous exclusion of evidence.
It has been held that "The complete exclusion of defense evidence . . . '"theoretically could rise to [the] level"' [citation] of a due process violation. But short of a total preclusion of defendant's ability to present a mitigating case to the trier of fact, no due process violation occurs; even '"[i]f the trial court misstepped, '[its] ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.'"' [Citation.]" (People v. Thornton (2007) 41 Cal.4th 391, 452-453.)
Here, as the People point out, the trial court did not completely exclude the defense evidence. To the contrary, defendant presented mitigating evidence through his statement to the probation officer, his Romero motion, and his counsel's argument at sentencing. Defendant represented that he is gainfully employed, that his offense constituted a misdemeanor, but was considered a felony due to his past record, that he is not a gang member, that he is a productive citizen, that he lives with his parents and sister, and that the knife in his possession was used for work and fishing. The court received a letter from defendant's employer explaining defendant's position and that the knife is one of the tools used in his employment. Defense counsel represented that defendant's "family [has] continued to provide a stable and loving home and his employer has expressed their desire to have him return to work . . . ." The probation officer recommended a total prison term of 32 months with possible parole for a period of three to four years. In contrast, the court was aware that defendant's previous convictions included robbery in 1998, vehicle theft and driving under the influence in April 2001, and being an accessory to felony vandalism in July 2001. Given the two prior felony convictions, he was not eligible for probation. Also, the court was aware that defendant had been sentenced to prison twice and violated parole on three occasions.
People v. Superior Court (Romero)(1996) 13 Cal.4th 497.
Given the above, the error asserted here must be deemed harmless unless it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) This same standard has been applied in the past to the denial of an opportunity to address the court at sentencing. (People v. Thomas (1955) 45 Cal.2d 433, 438.) In general, such a denial has been held harmless if the defendant was represented by counsel who was free to assert reasons why a more lenient judgment should be imposed. (Id. at pp. 438-439; see also People v. Billetts (1979) 89 Cal.App.3d 302, 311.) That was the case here. We conclude that the putative error was harmless.
IV. REIMBURSEMENT OF COURT-APPOINTED COUNSEL AND
PROBATION REPORT COSTS
The presentencing probation report recommended the court find that defendant "has the present ability to pay appointed counsel fees in the amount of $150 . . . ." At sentencing, the trial court ordered defendant to pay $150 in attorney fees. In addition, the court assessed $250 for reimbursement of the cost of preparing the presentence probation report pursuant to section 1203.1b. No objection was made. On appeal, defendant challenges the orders, claiming the court should have held a hearing regarding his ability to pay, and there is insufficient evidence to demonstrate such ability. In response, the People argue defendant has forfeited his claim by failing to object.
"Section 987.8, subdivision (b) "provides that, upon the conclusion of criminal proceedings in the trial court, the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him." (People v. Flores (2003) 30 Cal.4th 1059, 1061.) Here, defendant was on notice that the court may order him to pay $150 in attorney fees and $505 for the cost of the presentence probation report by virtue of the probation officer's report. By failing to object to these fees, defendant forfeited his present claim that the trial court should have held a hearing to determine whether he had the financial ability to pay the fee. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1395 [failure to object to lack of notice and manner of hearing regarding reimbursement of counsel's fees deems the issue waived].)
The court only ordered that defendant pay $250 in investigation fees.
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However, defendant also challenges the sufficiency of the evidence to support the finding that he has the ability to pay. Such claim is not waived. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397.) A finding of a present ability to pay is a "condition to an order assessing attorney fees . . . ." (Id. at p. 1398; § 987.8, subd. (b).) "[A]ny finding of ability to pay must be supported by substantial evidence. [Citations.]" (Pacheco, supra, at p. 1398.) If there is no substantial evidence to support a defendant's present ability to pay, an order to pay fees is erroneous as a matter of law. (People v. Nilsen (1988) 199 Cal.App.3d 344, 351.)
"Ability to pay" is defined in section 987.8, subdivision (g)(2) to mean "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 . . . ." Section 987.8, subdivision (g)(2) also includes a number of factors that must be considered in making a determination as to whether a defendant has the "ability to pay." For example, the court must consider "[t]he defendant's present financial position"; "[t]he defendant's reasonably discernible future financial position" within the six months following the hearing date; and "[t]he likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing." (§ 987.8, subds. (g)(2)(A), (B) & (C).) "[T]here is a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs. Subdivision (g)(2)(B) of section 987.8 provides in pertinent part: '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.'" (People v. Flores, supra, 30 Cal.4th at p. 1068.)
The framework for the imposition of fees for the cost of preparing the presentence probation report under section 1203.1b is similar to, but slightly different from, appointed-counsel fees under section 987.8. For instance, section 1203.1b does not require a finding of unusualness in order for a defendant to be ordered to pay fees when he is sentenced to prison. (Compare § 1203.1b, subd. (e)(2), with § 987.8, subd. (g)(2)(B).) Section 1203.1b also permits the trial court to look forward one year from the hearing rather than the six months permitted in section 987.8. (Compare § 1203.1b, subd. (e)(2), with § 987.8, subd. (g)(2)(B).) Furthermore, section 1203.1b, subdivision (b)(4) requires that the court "state on the record the reason for its order," if it "determines that the defendant's ability to pay is different from the determination of the probation officer . . . ."
Notwithstanding the differences in the two statutory frameworks, in the interest of judicial economy, we conclude there was insufficient evidence even under the expanded scope of section 1203.1b. The record before this court shows that defendant did not graduate from high school; he has no military history and no special training. Although he was employed as an inspector for six months prior to his arrest at a rate of $19.50 per hour, he has no assets and is $5,000 in debt. Furthermore, he was sentenced to state prison for four years, with credit for only 230 days. Nothing in the record shows unusual circumstances that, as a prisoner, defendant will be able to reimburse any costs of his defense. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [express finding of unusual circumstances necessary to order defendant to reimburse his or her attorney].)
Based on the foregoing, it is our view that the record does not include sufficient evidence of defendant's ability to pay attorney fees. Nor is there anything in the record to indicate the court made appropriate inquiries as to defendant's ability to pay. The orders to pay court-appointed counsel fees and the costs of preparing the presentence probation report are therefore erroneous as a matter of law and must be stricken.
V. DISPOSITION
The judgment is modified to strike the orders imposing fees of $150 for court-appointed counsel (§ 987.8) and $250 for preparation of the presentence probation report (§ 1203.1b). The trial court is directed to amend the abstract of judgment and its minute order of the sentencing hearing so as to delete those provisions and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.