Opinion
H029758
5-17-2007
THE PEOPLE, Plaintiff and Respondent, v. DARRYL LEON CRAVIN, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Darryl Leon Cravin was charged with one felony count, possession of a controlled substance (cocaine), in violation of Health and Safety Code section 11350, subdivision (a), along with enhancements for four prior prison commitments (Pen. Code, § 667.5, subd. (b)), and for a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). A jury found defendant guilty, and he was ultimately sentenced to 32 months in prison.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant asserts that his trial counsel was ineffective because she failed to insist upon a ruling concerning an alleged proposal that the defense would stipulate to knowledge of the nature of cocaine, an element of the charged offense. This alleged failure resulted in the prosecution introducing certain prejudicial evidence on the issue of knowledge, namely, evidence of defendants two prior controlled substance convictions, and the presence of a small quantity of cocaine base in his pocket at the time of his June 2005 arrest. (Hereafter, evidence of the two prior convictions and the cocaine base possession are referred to collectively as the other conduct evidence.) Defendant argues that, had defense counsel followed through on the alleged proposed stipulation, the court would have required the prosecution to accept it, and the other conduct evidence would have thereby been rendered inadmissible. Defendant also contends that the sentencing courts order requiring reimbursement of attorney fees to the county under section 987.8, subdivision (b), must be reversed.
All further date references are to the year 2005 unless otherwise specified.
We conclude that defendant has failed to meet his burden of establishing ineffective assistance of counsel. Further, we conclude that there was no substantial evidence that defendant had the ability to pay attorney fees. Accordingly, we will modify the judgment to strike the attorney fee order. As modified, we will affirm the judgment.
FACTS
We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)
I. Prosecution Evidence
In the early afternoon of a clear day on June 28, California probation officer Abel Luna paid an unannounced visit to one of his probationers, Lynn Thomas, at her home on Oxbow Court in Sunnyvale. As he arrived, Luna met an unidentified male who was leaving the garage. During a probation search of Thomass bedroom, Luna found a scale, glass pipes, small baggies commonly used to package methamphetamine, and approximately one gram of methamphetamine. Luna then called for police backup. Two Sunnyvale police officers, Officer Todd Fekete and Officer Curiel, responded within five minutes; Officer David Chong, an officer with the Sunnyvale Crime Scene Investigation Unit, arrived shortly afterward.
Officers Fekete and Curiel performed a sweep of the area, but did not locate anyone besides Thomas and her infant child. Officer Chong inspected the garage—which showed signs of being inhabited—but found no contraband after a quick search. Officer Chong then assisted Luna inside the residence, and Officer Fekete went outside.
While Thomas was being detained and arrested in her home, defendant approached the front door by a walkway, and Officer Fekete asked him for identification. The officer "ran a check through dispatch using [defendants] California drivers license." Defendant "kept wanting to put his hands in his pockets . . . [and Officer Fekete] asked him two or three times to not do that." The officers attention was somewhat divided between watching defendant and listening to traffic on the police radio. Officer Fekete was informed that there was a warrant for defendant for $25,000 based upon traffic violations. He then detained defendant by handcuffing him for safety reasons while he confirmed the warrant. (The warrant was subsequently confirmed.)
While he was being detained, Officer Fekete asked for and received permission to search defendant. After completing the search, the officer looked down and found a twisted baggie that contained white powder believed to have been contraband on the ground at defendants feet. The baggie was approximately in the middle of the walkway. The part of the bag that was tied up was slightly smaller than a golf ball. Luna—who was able to observe what transpired through a large living room window and was close enough (approximately six feet away) to hear the conversation—heard "[defendants] voice started to escalate" after Officer Fekete picked up the baggie and asked, " `What is this? " Officer Fekete picked up the baggie with a gloved hand and showed it to Officer Chong. Officer Chong took possession of the baggie and processed it according to police procedures.
Quotation marks do not appear in the reporters transcript. For the sake of clarity, we add single quotations here and in other portions of the recitation of facts where we believe it to be clear that the witness was quoting another persons statement.
Prior to entering Thomass home, Luna had not observed the baggie in the walkway; he believes that he would have noticed it had it been there at the time. Likewise, in the process of his search of the residence before defendant arrived, Officer Chong walked along the walkway leading to the house approximately four to five times; he saw nothing on the ground during those trips. Officer Chong believed that he would have seen the baggie had it been on the walkway before defendants arrival. And prior to defendants arrival, Officer Fekete had walked up and down the walkway at least two or three times. He did not observe anything on the ground on the walkway, and did not see anyone throw anything on the walkway before defendant arrived.
Officer Fekete transported defendant to police headquarters for booking and processing. He advised defendant of his Miranda rights. Officer Fekete and Officer Chong performed a strip search of defendant. Officer Chong obtained the walking shorts that defendant had been wearing. He asked defendant if the shorts belonged to him; defendant said that they did. Officer Chong asked "if there would be . . . any reason why [the officer] would have found cocaine residue inside [the shorts] pockets." Defendant responded, " `Well, maybe. "After this conversation, Officer Chong examined the shorts and located small white flakes in two of the pockets. He conducted an NIK test (presumptive test for controlled substances) that revealed that the substance was presumptively cocaine. The flakes were not a usable quantity. A criminalist later determined that there were flakes of cocaine base in one of the pockets of the shorts.
Miranda v. Arizona (1966) 384 U.S. 436.
Officer Fekete also performed an evaluation of defendant to determine whether he was under the influence of drugs or alcohol. He believed from outward signs that defendant exhibited that he was possibly under the influence of marijuana; defendant admitted that he had smoked marijuana the previous night.
Officer Chong, after returning to police headquarters, performed an NIK (Narcotics Identification Kit) test of the powder in the baggie, from which he concluded that the baggie contained approximately 2.8 grams of cocaine. Officer Chong also determined that there were no fingerprints on the baggie. (It has been his experience that finding fingerprints on baggies of the type involved in this case is extremely rare.) The baggie and its contents were sent to the laboratory. A criminalist with the Santa Clara County District Attorneys Crime Laboratory tested the substance and confirmed that it was 2.88 grams of cocaine.
II. Defense Evidence
Lynn Thomas testified that defendant was her boyfriend and that she had known him since April or May. Thomas lived at the Oxbow Court home with her three children. Her brother lived in the garage. He uses methamphetamine and cocaine. On the morning of June 28, he had two visitors, both of whom visited often and were both users of methamphetamine and cocaine.
On June 28, her probation officer, Luna, conducted a probation search and found paraphernalia and a small amount of methamphetamine. She did not see defendant when he came to the house, and was searched and arrested by the police. Thomas never went outside, so she has no information regarding what transpired on the walkway leading to the house.
Thomas denied telling Officer Chong that the methamphetamine and paraphernalia in the home belonged to defendant. At the time of trial, she was incarcerated in state prison. Thomas admitted that between 1993 and 2004, she had suffered at least 11 felony convictions.
III. Rebuttal Evidence
Officer Chong testified that after defendant had been arrested, he went back inside the house. Thomas approached the officer and told him that the pipes, scale and methamphetamine found in the home belonged to defendant.
PROCEDURAL BACKGROUND
Defendant was charged by information filed July 28, with one count, possession of a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)). The information also alleged that defendant had served four prior prison commitments (§ 667.5, subd. (b)), and alleged a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). He was convicted after a jury trial of the single count charged. Defendant thereafter admitted the enhancement allegations.
Defendant filed a motion to strike the prior "strike" allegation, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court denied defendants Romero motion. Defendant was sentenced to the lower term of 16 months, doubled to 32 months based upon the prior strike conviction (§ 667, subds. (b)-(i)). The court exercised its discretion by striking the punishment for the prior prison term allegations pursuant to section 1385. The court also ordered defendant to pay $300 in attorney fees. Defendant filed a timely notice of appeal.
DISCUSSION
I. Issues On Appeal
Defendant makes the following contentions:
1. Due to ineffective assistance of counsel in failing to press for a ruling on an alleged proposed stipulation, the other conduct evidence that was prejudicial to defendant was introduced at trial. Had defense counsel insisted on a ruling on the proposed stipulation, the court would have compelled the prosecution to accept it, which would have thereby foreclosed the introduction of the other conduct evidence.
2. The court erred in ordering defendant to reimburse the County the sum of $300 for attorney fees because it made no finding (and the record contained no substantial evidence) that defendant had the ability to pay such amount. The attorney fee order was also erroneous because defendant was not apprised of his right to have a hearing concerning his ability to pay.
We address both of these appellate claims below.
II. Admission Of Other Conduct Evidence
A. Background and Contentions
The prosecution, over defense counsels objection, offered evidence of (1) a small quantity of cocaine base being present in one of the pockets of the shorts defendant was wearing at the time of his arrest; (2) defendants 1991 conviction of possession of cocaine for sale (Health & Saf. Code, § 11351); and (3) defendants 1994 conviction of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The other conduct evidence on these three subjects was offered to establish defendants knowledge of the nature of cocaine. (See People v. Williams (1971) 5 Cal.3d 211, 215; CALJIC No. 12.00 (2006 ed.) [knowledge of "nature as a controlled substance" an element of violation of Health & Saf. Code, § 11350].)
Defendant contends on appeal that his trial counsel was ineffective and that such deficient performance resulted in the introduction of the other conduct evidence that was prejudicial to him. He argues that, although the record does not disclose it, his counsel offered to stipulate that defendant had knowledge of the nature of cocaine. Defendant points to the following passage in the settled statement on appeal in support of this claim: "The second issue concerns an offer by the defense to stipulate during an in camera conference. The parties disagree whether there was an offer in chambers by the defense to stipulate on the issue of knowledge that the substance found at the defendants feet was cocaine. The Court has no recollection of such an offer by the defense."
Trial counsel (defendant argues) failed to press for a ruling by the court concerning the proposed stipulation. Had she done so, the court would have been compelled to require the prosecution to accept it, "because such a stipulation would have been dispositive of the issue of knowledge." Because the other conduct evidence (defendant argues) was irrelevant to any issues save knowledge, had defense counsel pressed the court for a ruling on the proposed stipulation and had the court properly ruled that the prosecution was compelled to accept it, the other conduct evidence would not have been admitted. Defendant argues that there could have been no conceivable tactical reason for his counsels failure to press for a ruling on the proposed stipulation. And the introduction of the other conduct evidence (defendant claims) was highly prejudicial, because the jury may have improperly used the evidence of prior drug convictions and possession at the time of arrest of a small quantity of rock cocaine to decide the critical issue, i.e., whether defendant was in possession of the cocaine as charged. Therefore, given the prejudicial nature of the other conduct evidence and the fact that the evidence against defendant "was less than overwhelming," defendant argues that the conviction must be reversed because of ineffective assistance of counsel.
The Attorney General responds that defendants argument is based upon the false premise that defense counsel, in fact, made an offer to stipulate on the issue of knowledge. There is nothing in the record suggesting that such an offer was made, and certainly neither the deputy district attorney nor the trial court recall such an offer. Therefore, the Attorney General argues, defendants ineffective assistance claim fails because "trial counsel cannot be faulted for not pressing for a ruling on an offer to stipulate that was never made."
Assuming the existence of an offer to stipulate, the Attorney General contends that defendants claim on appeal should nonetheless be rejected. There is no indication as to the specifics of the proposed stipulation; absent those specifics, it cannot be said that had defense counsel pressed for a ruling, the court would have been compelled to order the prosecution to accept it. The Attorney General also contends that the ineffective assistance claim is without merit, citing People v. Marks (2003) 31 Cal.4th 197, 225-226, because of the "`"strong policy against depriving the states case of its persuasiveness and forcefulness by forcing the prosecutor to accept stipulations that soften the impact of the evidence in its entirety." [Citation.]" Finally, any failing on the part of defense counsel was not prejudicial, because the impact of the other conduct evidence was blunted by other evidence of defendants drug use and because the case against him was a strong one.
B. Claims of Ineffective Assistance of Counsel
In evaluating defendants ineffective-assistance contention, we first identify familiar applicable legal principles. A criminal defendant has the right to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This constitutional right to counsel entitles a defendant not simply to "bare assistance" but rather to effective assistance. (People v. Jones (1991) 53 Cal.3d 1115, 1134.) Adequate assistance means that the attorney diligently and actively participates in the complete preparation of the clients case, and investigates all defenses of law and fact. (People v. Pope (1979) 23 Cal.3d 412, 425.)
A claim of ineffective assistance of counsel requires a showing of (1) performance that was deficient, and (2) prejudice resulting from such deficient performance. (People v. Weaver (2001) 26 Cal.4th 876, 961.) The first element "requires a showing that `counsels representation fell below an objective standard of reasonableness. [Citations.]" (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) " `In determining whether counsels performance was deficient, a court must in general exercise deferential scrutiny . . . and must `view and assess the reasonableness of counsels acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act. [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Thus, "`"there is a `strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 876.) Further, "[i]f the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott, supra, at p. 1212.)
The "prejudice" element requires a showing that "that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome." (In re Ross (1995) 10 Cal.4th 184, 201.) Prejudice requires a showing of "a ` "demonstrable reality," not simply speculation. [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
The burden of establishing ineffective assistance is upon the party claiming it. (People v. Pope, supra, 23 Cal.3d 412, 425.) And in deciding an ineffective assistance claim, the reviewing court need not inquire into the two components (deficient performance and prejudice) in any particular order; in the event the defendants showing on one component is insufficient, the court need not address the remaining component. (See In re Cox (2003) 30 Cal.4th 974, 1019-1020.)
C. Discussion of Defendants Claim of Error
We conclude initially that defendant has failed to meet his burden of proving ineffective assistance of counsel (People v. Pope, supra, 23 Cal.3d at p. 425), because of a fundamental flaw in his position. Defendants argument is founded upon the reasoning that his trial counsels performance was deficient because she "failed to press for a ruling on her offer to stipulate as to the element of knowledge." But there is nothing in the record that establishes that defendants trial counsel, in fact, did offer to so stipulate. (See People v. Cox (1991) 53 Cal.3d 618, 664 [to preserve issue for appellate review, the defendant must have made specific proposal to stipulate to facts, because without proposal, "trial court cannot determine whether the prosecution is obligated to accept the stipulation"].) Although defendant points to the language of the settled statement on appeal quoted above (see Discussion, pt. II. A., ante), that language suggests only that (1) defense counsel recalls making an offer to stipulate, (2) the prosecution denies the making of such an offer, and (3) the trial judge does not recall one way or the other whether an offer was made. On this issue, therefore, the title of the document on which defendant relies is a misnomer; the so-called "settled" statement reflects an unsettled record. Since it is based upon the unsupported premise that his trial counsel offered to stipulate to the knowledge element of the charged crime, we must necessarily reject defendants ineffective assistance claim. (People v. Hinton, supra, 37 Cal.4th at p. 878 [rejecting ineffective assistance claim because record did "not support the factual predicate" on which it was based]; People v. Fairbank, supra, 16 Cal.4th at p. 1241 [record of reasons for trial counsels action inadequate for court to conclude counsel was incompetent].)
But even were we to assume that defendants trial counsel offered to stipulate to the element of knowledge, defendants ineffective assistance claim would nonetheless fail. The premise for this contention is that the court would have been required to compel the prosecution to accept the offer to stipulate (and thereby forgo introduction of the other conduct evidence), had defense counsel pressed the issue. With respect to the evidence of the presence of the small quantity of cocaine base in defendants walking shorts, we disagree with this premise.
In response to Officers Chongs question as to whether there would have been any reason for the police to have found cocaine residue in defendants pockets, defendant said, " `Well, maybe. "While this response was somewhat ambiguous, as a potential admission, it was evidence that was relevant to issues other than knowledge of the nature of cocaine. Therefore, the statement, and the related evidence that there were trace amounts of cocaine base found in defendants pockets, were admissible irrespective of whether defendant stipulated to knowledge.
As the Supreme Court has explained: "If the facts to which the defendant has offered to stipulate retain some probative value, then evidence of such facts may be introduced. For example, if evidence remains relevant to an issue not covered by the stipulation or admission, the evidence is admissible on the remaining issue. [Citations.] If the stipulation would . . . hamper a coherent presentation of the evidence on the remaining issues, evidence of the stipulated facts is admissible." (People v. Hall (1980) 28 Cal.3d 143, 152-153, overruled on another ground in People v. Newman (1999) 21 Cal.4th 413, 422-423, fn. 6; see also People v. Karis (1988) 46 Cal.3d 612, 639.) Here, it would have been error to have compelled the prosecution to accept a stipulation to knowledge and forgo the right to introduce defendants statement to the police concerning the possible presence of cocaine in his pockets; that evidence was relevant to other issues, and an order compelling the prosecution to accept a stipulation would have hampered the coherent presentation of its case.
Moreover, the fact that trace evidence found in defendants pockets (cocaine base) was a different form than the cocaine that was the subject of the drug possession charge does not (contrary to defendants argument) make the statement to the police inadmissible. Rather, that discrepancy was a matter that could have been explored during cross-examination of Officer Chong to attempt to convince the trier of fact that defendants statement had nothing to do with the baggie of cocaine found at defendants feet.
The evidence of defendants two prior convictions, however, was irrelevant to issues other than knowledge. The court would have been required to compel the prosecution to accept a defense offer to stipulate to the element of knowledge (had one been made), thereby obviating the need to introduce the prior conviction evidence. (See People v. Washington (1979) 95 Cal.App.3d 488, 491 [stipulation to knowledge of nature of controlled substance as element of drug case may preclude prosecution from introducing prior drug conviction evidence].) While we have concluded that defendant has failed to meet his burden of establishing his ineffective assistance claim because the record does not establish an offer to stipulate, assuming that defense counsel made such an offer, she should have pressed the court to order the prosecution to accept it. Defense counsel was evidently aware of the potentially damaging nature of the prior conviction evidence because she objected to its introduction. Thus, assuming an offer to stipulate was made, counsels performance—namely, her failure to press for a ruling that should have resulted in the prosecutions compulsory acceptance of the offer—was deficient, since "there simply can be no satisfactory explanation" for the failure to act. (People v. Hernandez, supra, 33 Cal.4th at p. 1053.)
But deficient performance is only one element of an ineffective assistance claim. Even were we to find some merit to defendants contention that his trial counsels performance was deficient—which would require us to assume from an inadequate record that his counsel made a timely offer to stipulate—we find no prejudice for several reasons.
First, the court advised the jury that the other conduct evidence (i.e., the two prior convictions and the cocaine base particles found in defendants pockets) was being admitted for the limited purpose of establishing knowledge. We will of course presume that the jury followed those instructions. (See People v. Smith (2007) 40 Cal.4th 483, 518 [courts presume that juries follow faithfully instructions given]; People v. Poslof (2005) 126 Cal.App.4th 92, 100: "Juries are given a wide variety of instructions on how evidence is to be considered and are presumed to follow those instructions." Fn. omitted.) While this factor alone may be an insufficient basis for a finding that there was no prejudice—particularly since there is a potential for a jurys misuse of prior conviction evidence (see People v. Thomas (1978) 20 Cal.3d 457, 464 [noting danger of admission of other crimes evidence to prove criminal disposition])—it is nonetheless germane to our analysis.
But our Supreme Court—apropos in this instance where the evidence defendant finds objectionable involved two prior offenses that resulted in felony convictions—has recognized that "the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jurys attention would not be diverted by having to make a separate determination whether [the] defendant committed the other offenses. [Citation.]" (People v. Falsetta (1999) 21 Cal.4th 903, 917, citing People v. Balcom (1994) 7 Cal.4th 414, 427.)
Second, the jury heard other evidence of defendants involvement in and use of illegal drugs. Officer Fekete observed objective signs that defendant was possibly under the influence of marijuana at the time of his arrest. Defendant admitted to the police that he had smoked marijuana the previous evening. And Thomas told Officer Chong at the time of defendants arrest that the methamphetamine and drug paraphernalia found in her bedroom belonged to her boyfriend, defendant. This evidence would have lessened any negative impact that might have been occasioned by the jury hearing about two drug-related convictions that were each over a decade old.
Third, contrary to defendants assertion, the case against him was quite strong. Officer Fekete and Officer Chong both testified that they had traveled the pathway several times and had not observed the baggie of cocaine on the walkway before defendants appearance at the Thomas home. And the probation officer, Luna, did not see the baggie in the walkway before entering the home. Both Luna and Officer Chong testified that they believed that they would have seen the baggie in the walkway had it been there before defendant arrived. While he was being detained, defendant tried on several occasions to put his hands in his pockets, and Officer Fekete repeatedly told defendant to cease that activity. But Officer Feketes attention was divided between listening to the police radio and watching defendant. And while defendants girlfriend, Thomas, attempted to point the finger at her brother and/or his friends as being the source of the cocaine found at defendants feet, the jury could have easily disregarded this testimony (1) because there was no evidence that any adults besides Thomas were home when Officers Fekete and Chong arrived and observed nothing on the walkway; and (2) because of Thomass obvious bias and lack of trustworthiness (as an 11-time convicted felon). Under the circumstances, the only satisfactory explanation for the sudden appearance of the cocaine in the walkway at defendants feet was that he acted to dispose of it from his person while he was being detained by Officer Fekete.
Based upon a review of the entire record, we conclude that it was not reasonably probable that defendant would have achieved a more favorable result had his trial counsel pressed the court for an order compelling the prosecution to accept an alleged offer to stipulate to knowledge. Therefore, while we find the record inadequate to support the premise that such an offer to stipulate was even made, assuming that defense counsel made such an offer, defendants ineffective assistance claim is without merit.
III. Whether The Order For Attorney Fees Was Proper
At sentencing, the court—after determining that defense counsel was not privately retained—ordered that defendant reimburse the County "appropriate attorneys fees." Although the court did not assess a specific fee amount, the clerks docket and the abstract of judgment reflect that defendant was ordered to pay $300 in attorney fees. Besides ordering the payment of fees, the court did not comment on the issue; specifically, there was no mention of whether defendant had the ability to pay.
Defendant challenges the attorney fee order on three grounds. First, the order cannot stand because defendant was not apprised of his right to a hearing on his ability to pay attorney fees. Second, defendant argues that the court, contrary to the requirements of section 987.8, subdivision (e), failed to make a finding that defendant had the present ability to pay attorney fees. Third (defendant argues), even were we to conclude that there was an implied finding of defendants ability to pay, there was no substantial evidence to support such implied finding.
The Attorney General responds that defendant was put on notice that the court might order reimbursement of attorney fees because the probation departments sentencing report contained the following, immediately above the signature line: "NOTE: Attorney fees if appropriate." But the Attorney General concedes that there is merit to defendants argument that there was no substantial evidence to support any implied finding that defendant had the ability to pay attorney fees.
Section 987.8, subdivision (b), provides in relevant part: "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. . . . " Further, "[i]f the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county." (§ 987.8, subd. (e), 7th par.)
Under section 987.8, subdivision (g)(2), " `[a]bility 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 defendants present financial position. [¶] (B) The defendants reasonably discernable 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 defendants reasonably discernable future financial position. . . . [¶] (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 which may bear upon the defendants financial capability to reimburse the county for the costs of the legal assistance provided to the defendant."
The courts finding of the defendants present ability to pay need not be express, but may be implied through the content and conduct of the hearings. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.) But an implied finding of ability to pay that is necessary for an attorney fee order under section 987.8 must be supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920.)
We address defendants contention that, assuming the courts implied finding of an ability to pay, there was no substantial evidence to support that finding. The fact that defendant made no objection below does not result in forfeiture of this argument. " `Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception. [Citation.]" (People v. Butler (2003) 31 Cal.4th 1119, 1126; see also People v. Viray (2005) 134 Cal.App.4th 1186, 1217.) The Attorney General concedes that the argument is not forfeited.
In this instance, there is nothing in the record at the sentencing hearing itself even addressing the issue of defendants ability to pay. The reporters transcript from the hearing contains no reference to defendants financial status. The probation officers sentencing report likewise provides no such information. Moreover, since the court may not consider a period beyond six months after the hearing in determining a defendants ability to pay (§ 987.8, subd. (g)(2)(B)), the fact that defendant was sentenced to two consecutive 32-month prison term strongly suggests an inability to pay. Indeed, the fact that defendant received a prison sentence resulted in the statutory presumption that he did not have the ability to pay: "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." (§ 987.8, subd. (g)(2)(B); see also People v. Flores (2003) 30 Cal.4th 1059, 1068.) Therefore, even were we to imply a finding by the court of defendants present ability to pay based upon the attorney fee order itself, there is no evidence—substantial or otherwise—to support such an implied finding.
The parties disagree as to the proper remedy for the erroneous attorney fee order. Defendant urges that we strike the order, while the Attorney General asks that we remand the case for further proceedings so that the court can make a specific finding concerning defendants ability to pay. In light of the small amount of the fee order and the fact that it is statutorily presumed that defendant has no ability to pay, in the interests of judicial economy, we will strike the fee order rather than remand for further proceedings.
DISPOSITION
The judgment is modified to strike the order requiring defendant to reimburse the county $300 for attorney fees. As so modified, the judgment is affirmed.
WE CONCUR:
Mihara, Acting P.J.
McAdams, J.