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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Steven A. FLORES, Defendant and Appellant.

No. B148379.

Decided: March 08, 2002

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, David C. Cook and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Steven A. Flores appeals from a judgment sentencing him to prison for three years and ordering him to pay $5,000 for the services of his court-appointed trial counsel.   He contends, and respondent concedes, that the order was made without notice and hearing.

The only disputed issue is the remedy for the error.   Under the holding of People v. Turner (1993) 15 Cal.App.4th 1690, 19 Cal.Rptr.2d 736, our only recourse would be to strike the order.   But we conclude Turner was wrongly decided.   Accordingly, we remand for notice and hearing under Penal Code section 987.8, subdivision (b), and in all other respects affirm the judgment.


Appellant stole a Jeep Cherokee from a parking garage in June 2000.   He was convicted of unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) and sentenced to prison for a term of three years.

At the sentencing hearing the court made the following order:  “The defendant is ordered to pay attorney's fees of $5,000, significantly less than those services were worth, and less than the public defender schedule would indicate, just as a general rule for appointed counsel.   That's subject to his ability to pay, out of state prison or other funds.”


The parties agree that the trial court deprived appellant of the notice and hearing required by Penal Code section 987.8, subdivision (b).  That statute provides, in relevant portion:  “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.   The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings․”

The question is what remedy is appropriate for this deprivation.   Reviewing courts have taken different approaches to the issue.   Some have affirmed the order if the defendant had some notice and made no showing of prejudice.  (See People v. Phillips (1994) 25 Cal.App.4th 62, 74, 30 Cal.Rptr.2d 321 [the probation officer's reference to attorney fees constituted notice sufficient, under the circumstances, “to apprise defendant that the matter would be taken up”];  People v. Smith (2000) 81 Cal.App.4th 630, 637, 638-639, 96 Cal.Rptr.2d 856 [defendant not prejudiced where he raised no issue concerning ability to pay and was “not in the dark” about the possibility he would be required to pay].)  That approach does not work in this case.   Appellant's only notice that he might be ordered to pay for his court-appointed attorney occurred when he was advised “of financial responsibility” 1 at the time of his arraignment in superior court.   Respondent wisely does not contend this advisement was sufficient to support the trial court's subsequent order.   Thus, this case is distinguishable from those in which the defendant had some notice but suffered no prejudice.

Some reviewing courts have held, without discussion, that deprivation of the hearing mandates reversal of the order without remand.  (See People v. Poindexter (1989) 210 Cal.App.3d 803, 810-811, 258 Cal.Rptr. 680;  People v. Heath (1989) 207 Cal.App.3d 892, 902, 255 Cal.Rptr. 120.)   Appellant suggested this approach in his opening brief, and it certainly has pragmatic appeal.   If a noticed hearing had been held in this case, the court would have been required to find appellant had no ability to pay unless unusual circumstances existed.   This conclusion is mandated by subdivision (g)(2)(B) of the statute, which provides that “[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.”   Respondent argues such circumstances may have been found because appellant owned $1,500 worth of jewelry at the time of sentencing.   This seems unlikely given that appellant has a child to support.   But that is not the issue before us.   The question is whether appellant, who stood silently while the order to pay attorneys' fees was made, should be entirely relieved of the obligation because he was deprived of the statutorily mandated notice and hearing.   If so, the potential for abuse of the system is obvious.

This brings us to the third approach to the problem.   Some courts have held that an order made without notice and hearing must be stricken because the trial court lacks jurisdiction to correct the error.  (People v. Turner, supra, 15 Cal.App.4th at p. 1698, 19 Cal.Rptr.2d 736;  see People v. Faatiliga (1992) 10 Cal.App.4th 1276, 1280, 13 Cal.Rptr.2d 190.)   This approach focuses on subdivision (b) of section 987.8, which allows a hearing at the conclusion of proceedings in the trial court, plus one additional hearing within six months of that time.   The rationale was explained by the Turner court as follows:  “[A]lthough the trial court ordinarily loses jurisdiction for most purposes upon the filing of an appeal, it retains jurisdiction to act on the question of attorney fees pursuant to section 987.8.   Thus, the filing of a notice of appeal does not toll the running of the six-month period;  once that period has expired, the court loses jurisdiction to reconsider or modify its order.   Our holding necessitates the conclusion that the trial court in the instant case is without jurisdiction to conduct further proceedings under the statute.”  (People v. Turner, supra, 15 Cal.App.4th at p. 1698, 19 Cal.Rptr.2d 736.)   The Turner court acknowledged that the effect of this approach is to “deprive the trial court of the opportunity to correct error in the imposition of attorney fees in virtually every case where an appeal is filed.”  (Id. at pp. 1696-1697, 19 Cal.Rptr.2d 736.)   It nonetheless concluded the statute “simply does not lend itself” to any other interpretation.  (Ibid.)

The Turner court found support for its conclusion in People v. Spurlock (1980) 112 Cal.App.3d 323, 169 Cal.Rptr. 320, its own decision in People v. Faatiliga, supra, 10 Cal.App.4th 1276, 13 Cal.Rptr.2d 190, and the language of the statute.   In Spurlock the trial court purported to “reserve jurisdiction to determine the matter [of a schedule to repay the County for the sums paid for court-appointed counsel] within sixty days after [the defendant's] release from actual custody.”  (People v. Spurlock, supra, 112 Cal.App.3d at p. 327, 169 Cal.Rptr. 320.) The reviewing court held that the trial court “erred in providing for a hearing 60 days after release from actual custody, since under any conceivable circumstances ․ such a hearing would have to take place over 6 months after the sentence.”  (Id. at p. 329, 169 Cal.Rptr. 320.)  Spurlock clearly does not stand for the proposition that a reviewing court's only option is to strike an order made in violation of section 987.8.   Nor does it stand for the corollary that a trial court lacks jurisdiction to correct the error on remand after appeal.

Faatiliga is similarly unsupportive.   There the trial court ordered the defendant, as a condition of probation, to pay the county $200 for attorney fees.   The reviewing court reversed on the ground that “attorney fees as a condition of probation is absolutely prohibited in California courts.”  (People v. Faatiliga, supra, 10 Cal.App.4th at p. 1280, 13 Cal.Rptr.2d 190.)   In dicta, the Faatiliga court added, citing Spurlock, that “[s]ince more than six months have elapsed since the conclusion of the criminal proceedings, it is too late for the court to hold a hearing under Penal Code section 987.8.”  (Ibid.)

 As for the statutory language, the Turner court inferred from a comparison of recoupment statutes that the six-month period specified in section 987.8 evidenced a legislative concern not only to limit the time within which a defendant's financial status could be evaluated, but also “a particular concern ․ to complete the proceedings conducted under section 987.8․” (People v. Turner, supra, 15 Cal.App.4th at p. 1698, 19 Cal.Rptr.2d 736.)   We have no quarrel with this reading of the statute.   But those concerns do not demonstrate a legislative intent to limit either our power to remand “for such further proceedings as may be just under the circumstances” (Pen.Code, § 1260) or the trial court's power to conduct such proceedings on remand.  (See Pen.Code, § 1265.)

 The notice and hearing for which the statute provides are rooted in the defendant's right to procedural due process prior to the taking of his or her property.  (People v. Phillips, supra, 25 Cal.App.4th at p. 72, 30 Cal.Rptr.2d 321.)   Where possible, the appropriate remedy for deprivation of such procedural protections is usually restoration of the status quo ante, which in this context would be a remand for notice and hearing.  (See West Covina v. Perkins (1999) 525 U.S. 234, 240-241, 119 S.Ct. 678, 142 L.Ed.2d 636;  Church of Scientology of Cal. v. United States (1992) 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313.)   We perceive no reason why that remedy should be precluded merely because the statute in question reserves to the trial court the power to act on a limited issue for a limited period of time.   Other statutes also allow for limited actions by the trial court after judgment and during the time when an appeal may be pending.   For example, the Legislature has granted trial courts limited power to correct a presentence custody credit calculation despite the pendency of an appeal.  (See Pen.Code, § 1237.1.) This limited power does not deprive an appellate court of jurisdiction to remand for recalculation of credits where necessary.  (See People v. Buckhalter (2001) 26 Cal.4th 20, 41, 108 Cal.Rptr.2d 625, 25 P.3d 1103.)   And the Legislature has granted trial courts broad power to recall a prison sentence and resentence a defendant within 120 days of commitment despite the pendency of an appeal.  (Pen.Code, § 1170, subd. (d);  see Dix v. Superior Court (1991) 53 Cal.3d 442, 463, 279 Cal.Rptr. 834, 807 P.2d 1063.)

 The governmental interest in recoupment of defense costs from defendants who have the ability to pay is significant.  “Recoupment proceedings may protect the state from fraudulent concealment of assets and false assertions of indigency.   Many States, moreover, face expanding criminal dockets, and [the United States Supreme] Court has required appointed counsel for indigents in widening classes of cases and stages of prosecution.   Such trends have heightened the burden on public revenues, and recoupment laws reflect legislative efforts to recover some of the added costs.   Finally, federal dominance of the Nation's major revenue sources has encouraged State and local governments to seek new methods of conserving public funds, not only through the recoupment of indigents' counsel fees but of other forms of public assistance as well.”  (James v. Strange (1972) 407 U.S. 128, 141, 92 S.Ct. 2027, 32 L.Ed.2d 600, as quoted in People v. Amor (1974) 12 Cal.3d 20, 27, 114 Cal.Rptr. 765, 523 P.2d 1173.)   Interpretation of the statute to allow remand under the circumstances presented in this case will implement this governmental interest, protect defendants' rights to procedural due process, and avoid an absurd result.

Accordingly, we hold that when a defendant has been deprived of the notice and hearing required by Penal Code section 987.8, subdivision (b), the proper remedy is remand for notice and hearing.2


For the foregoing reasons, we remand for notice and hearing under Penal Code section 987.8, subdivision (b), and in all other respects affirm the judgment.


1.   Penal Code section 987.8, subdivision (f) provides, in relevant part:  “Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel.   The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost.”

2.   The defendant's ability to pay must, of course, be determined with reference to his or her financial condition at the time of sentencing or not later than six months after sentencing.  (Pen.Code, § 987.8, subd. (g)(2)(B).)


We concur:  EPSTEIN, J. and CURRY, J.

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