Defendant, who was sentenced to prison and presumed unable to pay attorney’s fees, did not forfeit his challenge to order for reimbursement of attorney’s fees (Pen. Code, § 987.8) where he did not receive notice as required by statute. A jury found Rodriguez guilty of second degree robbery and he admitted 10 prior prison terms. The trial court sentenced him to nine years in prison and ordered him to reimburse the county for $1,185 in attorney’s fees for his public defender (Pen. Code, § 987.8) without evaluating his ability to pay. Counsel did not object. Rodriguez appealed, challenging the attorney’s fees order. Held: Judgment modified to strike the order for attorney’s fees. Section 987.8 allows a court to order a defendant to reimburse the government for the cost of court-appointed counsel. Courts may only impose such fees when the defendant has the ability to pay the fees. The court must follow certain procedural requirements set forth in section 987.8, including giving the defendant notice and an opportunity to be heard on the issue of his ability to pay. Additionally, there is a presumption that a defendant sentenced to prison does not have the ability to reimburse defense costs unless the court makes an express finding of unusual circumstances. (Pen. Code, § 987.8, subd. (g)(2)(B).) Here, the Court of Appeal concluded that a defendant’s failure to object to a reimbursement order on ability-to-pay grounds in the trial court does not forfeit an appellate challenge to the order when the defendant did not receive notice as required under section 987.8. In this case Rodriguez learned that he may have to pay attorney’s fees when the court imposed the fees at sentencing. There was no probation report and an early disposition report did not mention the fees. Because Rodriguez did not receive the required notice, he did not forfeit his claim by failing to object. The court distinguished People v. Aguilar (2015) 60 Cal.4th 862, a case where the defendant received constitutionally adequate notice and was granted probation. [Editor’s Note: Because the court resolved this issue on notice grounds, it did not reach the question of whether, under Aguilar, a defendant sentenced to state prison or more than 364 days in county jail must object to preserve the claim that he lacks the ability to pay attorney’s fees.]

In the interests of judicial economy, the court struck the order for attorney’s fees instead of remanding for an ability to pay hearing because there was no evidence to overcome the statutory presumption that defendant was unable to pay the fees. The Attorney General argued that the court should remand the matter for a hearing to determine Rodriguez’s ability to pay the attorney’s fees. The Court of Appeal declined to remand the matter and instead modified the judgment to strike the attorney’s fees order in the interests of judicial economy and efficiency. Although reviewing courts may remand for belated ability-to-pay hearings, remand is not required. Here, there was a lack of evidence to conceivably rebut the statutory presumption under section 987.8, subdivision (g)(2)(B) that Rodriguez lacked the ability to pay attorney’s fees. The ability to pay determination is based on defendant’s current financial position and reasonably discernable position within six months. (Pen. Code, § 987.8, subd. (g)(2).) Even if Rodriguez had been able to secure a paying job in prison (which is not guaranteed), it was unlikely that he would accumulate enough assets in the relevant timeframe to reimburse the county for his legal representation given the minimum wage in prison. Additionally, Rodriguez’s $300 restitution fine must be paid first. Furthermore, Rodriguez had been in and out of prison for most of the 20 years before he was taken into custody in this case and there was no evidence he had accumulated any savings during this time. The court concluded further proceedings would only generate additional costs.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B287544.PDF