Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Nos. 1403905, 1230986, 1243837 & 1220156.. Timothy W. Salter, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Poochigian, J.
Pursuant to a plea agreement, appellant, John Paul Mason, on July 8, 2009, pled no contest to unlawfully taking or driving a motor vehicle (Veh. Code, § 10851), and admitted an allegation that he had suffered a prior conviction of that offense (Pen. Code, § 666.5). That same day, appellant waived preparation of a probation report, and the court imposed a prison term of two years under section 666.5; awarded appellant 32 days of presentence credit, consisting of 22 days of actual time credit and 10 days of conduct credit; and ordered that appellant pay, inter alia, $200 to Stanislaus County as reimbursement for the cost of his legal representation.
All further statutory references are to the Penal Code.
We refer to the order that appellant pay $200 for the cost of his legal representation as the attorney fees order.
On appeal, appellant challenges the attorney fees order. In addition, pursuant to this court’s “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010 (Supplemental Briefing Order) ― discussed in greater detail below ― we deem to be raised the contention that appellant is entitled to additional conduct credit under a recent amendment to section 4019. We will strike the attorney fees order, remand for further proceedings, and otherwise affirm.
DISCUSSION
Attorney Fees Order
Section 987.8 “empowers the court to order a defendant who has received legal assistance at public expense to reimburse some or all of the county’s costs.” (People v. Viray (2005) 134 Cal.App.4th 1186, 1213 (Viray).) Under the terms of the statute, the trial court may, after notice and hearing, order a defendant to pay all or a portion of the costs of his legal representation if the court determines the defendant has the “present ability … to pay” such costs. (§ 987.8, subd. (b).) While the finding of a present ability to pay may be implied, a section 987.8 reimbursement order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
Appellant contends the attorney fees order must be stricken because there was insufficient evidence to support the trial court’s implied finding that appellant had the ability to pay $200 in attorney fees. The People counter that appellant has “waived, or at least forfeited, his right to raise the attorney fee issue on appeal.”
“‘[T]he terms “waiver” and “forfeiture” have long been used interchangeably. The United States Supreme Court [has] observed, however: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ [Citations.]” (United States v. Olano [(1993) 507 U.S. 725, 733...].)’” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) As we discuss, the People raise claims of both waiver and forfeiture.
The People first argue that appellant waived, i.e., intentionally relinquished, this claim because he expressly waived his right to appeal. The People base this claim on the following exchange, which took place at the hearing at which appellant entered his plea, prior to his doing so:
“THE COURT: And do you give up your right to appeal?
“[Appellant]: Yes, Your Honor.”
The foregoing, however, does not establish appellant waived his right to challenge on appeal the subsequent attorney fees order. The waiver quoted above is of the sort our Supreme Court has designated a “‘general waiver, ’” i.e., “a waiver that is nonspecific, e.g., ‘I waive my appeal rights’ or ‘I waive my right to appeal any ruling in this case.’” (People v. Panizzon (1996) 13 Cal.4th 68, 85, fn. 11.) And, as the court in Panizzon noted, People v. Sherrick (1993) 19 Cal.App.4th 657 (Sherrick) and People v. Vargas (1993) 13 Cal.App.4th 1653 (Vargas) “generally support the proposition that a defendant’s general waiver of the right to appeal, given as part of a negotiated plea agreement, will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea....” (People v. Panizzon, supra, 13 Cal.4th at p. 85, fn. omitted.) “In [Sherrick, supra, 19 Cal.App.4th 657], the defendant was permitted to argue on appeal that the trial court utilized a patently erroneous standard in determining his ineligibility for probation where the plea agreement and waiver of appellate rights evidently contemplated no specific sentence or probation eligibility. Similarly, in [Vargas, supra, 13 Cal.App.4th 1653], the defendant was not barred from challenging an alleged misapplication of conduct credits on appeal where the plea agreement and waiver of appellate rights apparently made no mention of conduct credits. In each of those decisions, the appellate court viewed the sentencing issue as not being within the contemplation and knowledge of the defendant at the time the waiver was made and so refused to extend thereto a general waiver of the right to appeal.” (Ibid., italics added.)
The record here contains no written plea waiver form, and at the hearing at which appellant entered his plea, there was no mention of attorney fees. Thus, as in Vargas and Sherrick, there is nothing in the record to indicate that imposition of the attorney fees order was within the contemplation and knowledge of appellant at the time of his waiver, and therefore appellant’s general waiver does not preclude an appellate challenge to the attorney fees order.
The People also argue that appellant forfeited his challenge to the sufficiency of the evidence supporting the court’s implied ability-to-pay finding by failing to object at sentencing to the attorney fees order. We disagree.
In Viray, supra, 134 Cal.App.4th 1186, the defendant challenged the trial court’s order to pay attorney fees under section 987.8 on several grounds, including, as here, that there was insufficient evidence to support the finding of ability to pay. (Id. at pp. 1213-1214.) The People argued the defendant forfeited those claims by failing to object at sentencing. The appellate court rejected this argument. The court reasoned that forfeiture may not 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. Counsel 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.) Thus, unless the defendant “has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsel’s failure to object to an order reimbursing his [or her] own fees.” (Id. at p. 1214.) We agree with the reasoning of Viray. Appellant did not forfeit his appellate challenge to the attorney fees order by failing to object to the order at sentencing.
In arguing to the contrary, the People cite People v. Scott (1994) 9 Cal.4th 331 (Scott), People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), and People v. Thygesen (1999) 69 Cal.App.4th 988 (Thygesen).) None of these cases support the People’s position.
In Scott, our Supreme Court concluded “the [forfeiture] doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (Scott, supra, 9 Cal.4th at p. 353.) Forfeited challenges are those that “involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Id. at p. 354.)
The People suggest that appellant’s challenge to the attorney fees order on insufficient–evidence grounds is a claim that the attorney fees order was “factually flawed” and therefore, under Scott, forfeited by appellant’s failure to raise his claim at sentencing. (Scott, supra, 9 Cal.4th at p. 354.) Scott, however, is inapposite.
In People v. Stowell (2003) 31 Cal.4th 1107 (Stowell), the Supreme Court held that the defendant’s challenge to an HIV testing order (§ 1202.1) was not forfeited by the defendant’s failure to challenge in the trial court a procedural defect in the imposition of the order. However, in reaching this conclusion the court held that the “analytic template of Scott” was not applicable because Scott applies to discretionary sentencing choices, and an HIV testing order was not a sentencing choice. (Id. at p. 1113.) Rather, the court “conclude[d] that the general forfeiture rationale applies.” (Ibid.)
An order that a defendant reimburse the county for the cost of legal assistance, like an HIV testing order under section 1202.1, is not punishment and therefore cannot be considered a sentencing choice. (Cf. People v. Rivera (1998) 65 Cal.App.4th 705, 712 [jail booking fees ordered pursuant to Government Code section 29550.2 ― which are “limited to actual administrative costs and are assessed against all convicted offenders who have the ability to pay” the fee ― are “not punitive in purpose or effect”].) Accordingly, under Stowell, general forfeiture principles apply. And in our view, Viray sets forth an exception to the general rule of forfeiture invoked in Stowell.
As indicated above, the People also rely on Valtakis, supra, 105 Cal.App.4th 1066. In that case, the appellate court held that where the trial court imposed a $250 probation fee in violation of various statutory requirements, “[the defendant’s] failure to object in the trial court to statutory error in the imposition of a probation fee under section 1203.1b waive[d] the matter for purposes of appeal.” (Id. at p. 1072.) Valtakis, however, is distinguishable from Viray because the main rationale for the Viray court’s conclusion that a challenge to section 987.8 order is not forfeited by failure to object ― that there exists a “patent conflict of interest” between defense counsel and defendant when the question being considered is whether the defendant shall be ordered to pay attorney fees ― does not apply to an order that the defendant pay probation fees. (Viray, supra, 134 Cal.App.4th at p. 1215.)
As indicated above, the People also cite Thygesen, supra, 69 Cal.App.4th 988, a case, it is argued, that stands for the proposition that a “trial court is vested with great discretion in fixing restitution awards.” This point, however, has no bearing on the question of forfeiture.
Finally, the People note that appellant himself, in a handwritten letter he filed with the trial court more than six weeks after he was sentenced, asked that the court to award him additional presentence credit but made no mention of the attorney fees order. The People suggest that the failure to challenge the attorney fees order in that letter forfeits the claim on appeal. However, none of the authorities the People cite in support of this point ― Scott, Valtakis, and Thygesen ― support the argument that when a criminal defendant, on his or her own and essentially unrepresented by counsel, challenges, at some point after sentencing, some aspect of his or her sentence, he forfeits any claims he does not specifically raise at that time. Nor are we aware of any such authority. Appellant has not forfeited his claim that the attorney fees order was not supported by substantial evidence.
We turn now to the merits of that claim. Section 987.8 defines “‘[a]bility to pay’” as a defendant's “overall” financial capability to pay, and lists factors relevant to this determination. (§ 987.8, subd. (g)(2).) Those factors include “[t]he defendant’s present financial position” (§ 987.8, subd. (g)(2)(A)); “[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, subd. (g)(2)(C)); and his or her “reasonably discernible future financial position” (§ 987.8, subd. (g)(2)(B)). In determining the last of these factors, “[i]n no event shall the court consider a period of more than six months from the date of the hearing....” (Ibid.) Moreover, “[u]nless 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.)
Here, as appellant argues and the People do not dispute, the attorney fees order was not supported by substantial evidence. Appellant was sentenced to two years in prison, less 32 days of presentence credit, and the record ― which does not include a probation report, appellant having waived its preparation ― contains no evidence of any “unusual circumstances” (§ 987.8, subd. (g)(2)(B)) indicating that appellant has a “reasonably discernible future financial ability to pay the costs of his... defense” or that there is any “likelihood that [he] shall be able to obtain employment within a six-month period from the date of hearing” (§ 987.8, subd. (g)(2)(C)), except for the employment opportunities prison offers.
The People argue that “if this Court deems that appellant is not barred from raising his contention on appeal, since there was no evidence presented on the actual amount of attorney fee[s] or on appellant’s ability to pay, the matter should be remanded to the trial court for a proper determination on both of these issues.” Appellant argues the attorney fees order should be stricken. In our view, the appropriate disposition is to strike the attorney fees order and remand for a hearing on the issue of appellant’s ability to pay.
We are mindful that the amount of the attorney fees order is relatively small. We believe, however, that simply striking the order, as appellant suggests, would not be appropriate. To do so without also remanding for rehearing would not properly recognize the “strong legislative policy” embodied in section 987.8 and other recoupment statutes “in favor of shifting the costs stemming from criminal acts back to the convicted defendant.” (People v. Phillips (1994) 25 Cal.App.4th 62, 69.) As our Supreme Court stated in People v. Flores (1993) 30 Cal.4th 1059, “Recoupment statutes such as section [987.8, subdivision (b)] reflect a legislative concern for ‘“replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.”’” (Id. at p. 1063.) The court in Flores also acknowledged that the state has an important interest in recoupment laws in this age of “‘“expanding criminal dockets”’” and the resulting “‘“heightened … burden on public revenues, ”’” and that such statutes “‘“reflect legislative efforts to recover some of the added costs.”’” (Ibid.)
In Flores, the trial court made a section 987.8 reimbursement order that, the parties agreed, violated the statute because it was made without the requisite notice and hearing. (People v. Flores, supra, 30 Cal.4th at p. 1061.) The defendant argued that “remand would be pointless” because he had been sentenced to prison and the trial court had not found his circumstances unusual. (Id. at p. 1068.) The Supreme Court, however, stated that “whether defendant’s financial circumstances are unusual for someone sentenced to prison is not the issue on appeal” and should not be subjected to appellate speculation. (Id. at p. 1069.) Instead, the Supreme Court ordered a remand “so that the trial court may, after having conducted a hearing into the question, make an informed decision” as to whether unusual circumstances exist. (Ibid.)
Although we can see no basis in the record for a finding of unusual circumstances, such a decision is committed to the trial court in the first instance, so we decline to speculate about whether such circumstances exist. We will remand for a hearing.
However, we see no need to direct the trial court to consider, in addition to appellant’s ability to pay, the question of the “actual amount of [appellant’s] attorney fee[s], ” as the People suggest, in that appellant does not assert that $200 exceeds the actual cost to the county of his legal representation. Accordingly, we will remand for a hearing on the question of appellant’s “present ability … to pay all or a portion of the cost [of legal assistance provided by the county].” (§ 987.8, subd. (b).)
Conduct Credit
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
The court sentenced appellant in July 2009, and calculated appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
This court, in its Supplemental Briefing Order, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the 2010 amendment to section 4019, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles. We deem these contentions raised here. As we explain below, they are without merit.
Under section 3, it is presumed that a statute does not operate retroactively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753-754.) The Legislature neither expressly declared, nor does it appear by “‘clear and compelling implication’” from any other factor(s), that it intended the amendment operate retroactively. (Ibid.) Therefore, the amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.
We conclude further that prospective-only application of the amendment does not violate appellant’s equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
(The issue of whether the amendment applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
DISPOSITION
The attorney fees order is stricken. The matter is remanded for a hearing on appellant’s present ability to pay the $200 ordered by the trial court pursuant to Penal Code section 987.8, subdivision (b). As modified, the judgment is affirmed.