Defendant Jeffrey Lee Clark contends the trial court erred when it ordered him to pay attorney fees and the cost of a presentence investigation report because there was insufficient evidence of his ability to pay. We will affirm. We note, however, an error in the abstract of judgment requiring correction.
Defendant was charged with murder in violation of Penal Code
At sentencing, after imposing the six-year middle term, the trial court imposed, among other fines and fees, a court appointed counsel fee of $150 and a presentence investigation fee of $300.
Defendant asserts there is insufficient evidence of his ability to pay $150 in attorney fees and $300 for the preparation of a presentence investigation report. He contends the order for attorney fees must be stricken because the trial court failed to make an ability-to-pay finding, and there is insufficient evidence of his ability to pay. Defendant further maintains the presentence investigation fee must also be reversed because defendant did not waive his right to a hearing, nor was he given notice of his right to a hearing, coupled with the fact there is insufficient evidence of his ability to pay. Lastly, defendant argues these orders violated his state and federal due process rights. The People argue defendant has waived these claims of error for purposes of appeal. However, the People acknowledge that if the claim is not waived, there is insufficient evidence in the record to support the trial court's order of defendant's ability to pay either of the fees imposed.
The People initially assert forfeiture in response to defendant's claims. Hence, the first question we address is whether defendant forfeited his right to claim the aforementioned errors on appeal. We conclude he has.
Section 1203.1b sets forth the procedure a trial court must follow before it may impose a fee for presentence probation costs. First, the court must order the defendant to report to the probation officer, who will then determine the defendant's ability to pay. (§ 1203.1b, subd. (a).) After the probation officer determines the amount the defendant can pay, the probation officer must inform the defendant that he or she is entitled to a hearing, during which the court will determine the defendant's ability to pay and the payment amount. (Ibid.) Section 1203.1b entitles the defendant to representation by counsel during this hearing. The defendant may waive his right to a hearing, but must do so knowingly and intelligently. (Ibid.) If the defendant fails to waive the right to a hearing, the probation officer must refer the matter back to the trial court, and the trial court will determine the defendant's ability to pay. (§ 1203.1b, subd. (b).)
It is now settled that a defendant who fails to challenge the imposition of fees pursuant to section 1203.1b before the trial court forfeits the claim on appeal. In the recent case of People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), the Supreme Court stated: "Notwithstanding the statute's procedural requirements, we believe to place the burden on the defendant to assert noncompliance with section 1203.1b in the trial court as a prerequisite to challenging the imposition of probation costs on appeal is appropriate." (Id. at p. 858.) The court explained:
In reaching its conclusion, the California Supreme Court noted that important constitutional rights are not at stake in this case.
The presentence report, dated December 2, 2013, recommended a "felony pre-sentence investigation report fee of $
We are bound by the Supreme Court's decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, pursuant to Trujillo, we conclude defendant has forfeited his challenge to the trial court's imposition of the probation report costs.
Subdivision (b) of section 987.8 provides in pertinent part
Ability to pay is based on the defendant's "overall capacity ... to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her." (§ 987.8, subd. (g)(2).) In making that determination, the court is to consider "[t]he defendant's present financial position." (§ 987.8, subd. (g)(2)(A).) Absent "unusual circumstances," however, "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).)
In People v. Aguilar (2015) 60 Cal.4th 862, decided the same day as Trujillo, the question was whether the defendant forfeited the issue of his ability to reimburse the cost of the sentencing report under section 1203.1b and reimburse the cost of appointed counsel under section 987.8. (People v. Aguilar, supra, 60 Cal.4th at p. 864.) On appeal, the defendant in Aguilar contended he was not advised of his right to a hearing, he did not waive such right, and the trial court erred in imposing the fees without finding he had the ability to pay. (Id. at p. 865.) The court found its decision in Trujillo controlling. (Id. at p. 866.) Like the defendant in Aguilar, we note nothing prevented defendant here from demanding a hearing on the issue of his ability to pay. (Ibid.) The Aguilar court concluded application of the forfeiture rule was particularly appropriate because "under the procedures contemplated by sections 987.8 and 1203.1b, defendant had two opportunities to object to the fees the court imposed, and availed himself of neither." (People v. Aguilar, supra, at p. 867.) Thus, the court concluded defendant forfeited the issues for appeal. (Id. at p. 868.)
Here, the previously prepared presentence report recommended a "Court appointed defense counsel fee of $
Given the Aguilar decision, we conclude defendant has forfeited his challenge to the trial court's imposition of a court-appointed defense counsel fee. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Item 1 of the abstract of judgment filed December 10, 2013, incorrectly indicates defendant was convicted in a court trial instead of a jury trial.
The trial court is directed to prepare a corrected abstract of judgment to properly reflect defendant was convicted in a jury trial. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.