(Santa Clara County Super. Ct. No. CC812286). Hon. Eugene Hyman.
The opinion of the court was delivered by: Duffy, J.
CERTIFIED FOR PUBLICATION
Defendant Seguin Marti Pacheco was convicted by plea of one count of welfare fraud in violation of Welfare and Institutions Code section 10980, subdivision (c)(2). The court suspended the imposition of sentence and placed Pacheco on formal probation for a period of three years subject to various conditions. The court also imposed various fines and fees. On appeal, Pacheco challenges the order directing him to pay $100 in attorney fees under Penal Code section 987.8,*fn1 and the court's imposition of a $259.50 criminal justice administration fee under either Government Code section 29550, subdivision (c) or Government Code section 29550.2, and a $64 per month probation fee under section 1203.1b, subdivision (a). His challenge to all three fines or fees is based on the court having failed to determine his ability to pay them. Pacheco also challenges a $30 fee appearing in the minute order that the court did not orally pronounce and he finally contends that the $20 court security fee should not have been imposed as a probation condition. Finding merit in Pacheco's claims, we modify the judgment and remand to the trial court with directions.
The record does not contain the factual basis of the crime. But the felony complaint alleged that Pacheco and Linda Martinez committed "fraud in obtaining Calworks and food stamps" in violation of Welfare and Institutions Code section 10980, subdivision (c)(2) (count 1); and that they committed the crime of "false application for aid, in violation of... section 118."*fn2 (Capitalization omitted.) The probation report states that the original "cash aid overpayment was $12,631.00 and the food stamp over issuance was $5,547.00" but that some "of the losses [were] recovered leaving balances of $10,105.00 and $4,995.00, respectively."
Pacheco entered a no contest plea to count one and count three was dismissed at sentencing. The court suspended imposition of sentence and placed Pacheco on formal probation for a period of three years, subject to various conditions that included that he perform 300 hours of community service, that he "seek and maintain gainful employment and maintain academic and/or vocational training as directed by his probation officer," and that he pay victim restitution in the amount of $15,100, for which he was jointly and severally liable with Martinez. As conditions of probation, the court imposed various fines and fees, among them a $20 court security fee; a "$259.50 booking fee in favor of the county;" and a $64 per month probation fee.*fn3 The court also ordered Pacheco to pay attorney fees in the amount of $100, likewise as a condition of probation. Before imposing any fines and fees, the court referred Pacheco "to the Department of Revenue for a determination of his ability to pay certain fines and fees," but none of those imposed were made conditional on this determination or anything else.*fn4
This timely appeal, which is based solely on the sentence or other matters occurring after the plea, followed.*fn5
I. Pacheco's Sufficiency of the Evidence Claims Are Not Forfeited
Pacheco's claims on appeal include that the court erroneously imposed the $259.50 criminal justice administration fee under Government Code sections 29550, subdivision (c) or 29550.2, the $64 per month probation fee under section 1203.1b, and the $100 attorneys fee order under Penal Code section 987.8 without determining his ability to pay these fees and that there is insufficient evidence to support any such determination. All three statutes authorize the fines or fees expressly subject to a defendant's ability to pay them. Respondent contends that because Pacheco did not object below to the imposition of the fines or fees in the absence of an ability to pay determination, he has forfeited these claims.
But as Pacheco asserts, these claims are based on the insufficiency of the evidence to support the order or judgment. We have already held that such claims do not require assertion in the court below to be preserved on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217 (Viray) [challenge to order to reimburse attorney fees based on insufficiency of evidence may be first asserted on appeal]; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1537 [challenge to conditional order to pay attorney fees "if appropriate" with no referral for ability to pay determination may be raised for first time on appeal].) Respondent offers nothing to convince us otherwise. We accordingly conclude that Pacheco's claims are not forfeited or waived on appeal and we will proceed to the merits.
II. There is no Evidence of Pacheco's Ability to Pay Attorney Fees
The court ordered Pacheco to pay attorney fees in the amount of $100. It did not cite the statutory basis of the order but we assume it was section 987.8. This section provides in relevant part that 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, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided." (§ 987.8, subd. (b).) 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).)
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 defendant's present financial position. [¶] (B) The defendant's 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 defendant's reasonably discernable 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. ...