(Super. Ct. No. MCYKCRBF100129)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to a plea bargain, defendant pled guilty to attempted grand theft (Pen. Code, §§ 664/487, subd. (a)) and admitted an on-bail enhancement (Pen. Code, § 12022.1, subd. (b)). He was sentenced to two years and four months in prison. On appeal, defendant contends the trial court erred in ordering him to pay the cost of the probation report and booking fees. He further claims error as to the court's order for attorney fees. For both claims, he argues that the trial court failed to determine his ability to pay.
We conclude that defendant has forfeited any claim of error as to the cost of the probation report and the booking fees by failing to object at sentencing. We reach a different conclusion, however, as to the order for reimbursement of attorney fees. As we will explain, there is a statutory presumption that, absent a finding of an unusual case, a defendant sentenced to prison shall be deemed to lack the financial ability to reimburse costs of his defense, and that an appellate forfeiture cannot "properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees." (People v. Viray (2006) 134 Cal.App.4th 1186, 1215, original italics.) We will strike the order for payment of attorney fees and otherwise affirm.
The probation report recommended that defendant pay various fines and fees. As relevant here, it recommended defendant reimburse the Siskiyou County Probation Department $340 for the cost of the preparation of the presentence report, pay a $148 booking fee, and reimburse appointed counsel fees. The amount of fees to be reimbursed was left blank. The report provided no evidence that defendant had the ability to pay these fees. To the contrary, the report indicated defendant's auto shop had burned down and defendant claimed that he lost everything, including his business, house, and cars, as a result of his behavior.
Immediately before imposing sentence, the trial court asked defense counsel if he was appointed and how much attorney time he had spent on the case. Counsel responded he "had about three and a half hours in this case--well, four hours." The court inserted "$260" in the area in the probation report that had been left blank for appointed counsel fees.
The court sentenced defendant to two years and four months in prison, consecutive to the term he was already serving. The court ordered defendant to pay a $400 restitution fine pursuant to Penal Code section 1202.4, subdivision (b)(2) and an additional restitution fine in the same amount pursuant to section 1202.45 of the Penal Code, which was suspended pending successful completion of parole.
The court asked defense counsel if he had reviewed the fines and fees with defendant. Counsel responded he thought the fines and fees were labeled as to be determined and he did not know if defendant wanted him to review those. Counsel had "just looked" at the probation report and reviewed it with defendant quickly. The court gave an "outline" of the fees and offered to read through them more completely. The fees were: $340 presentence report fee, $36 crime prevention fee, $30 court security fee, $30 criminal conviction assessment fee, and $148 booking fee. Defense counsel stipulated to those fees.
Defendant contends the trial court erred in imposing these fees because it failed to make an assessment of defendant's ability to ...