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The People v. John David Combs

May 24, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN DAVID COMBS, DEFENDANT AND APPELLANT.



(Super. Ct. No. CM033707)

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Combs CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On January 28, 2011, defendant John David Combs assaulted his live-in girlfriend after accusing her of infidelity. He choked her with both hands, slapped her approximately 15 times, hard enough for her to "see stars," and tried to cover her nose and mouth in an attempt to smother her. Defendant had an active no contact domestic violence restraining order with respect to his girlfriend.

Defendant pled guilty to corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a))*fn1 and disobeying a domestic relations order (§ 273.6, subd. (b)).

The trial court sentenced defendant to four years in state prison, and imposed an $800 restitution fine (§ 1202.4, subd. (b)), suspended an $800 parole revocation fine (§ 1202.45), a $420 reimbursement for attorney fees (§ 987.8), a $40 court security fee (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373).

Defendant contends the order of reimbursement for the attorney fees and the restitution fine are unauthorized because the trial court did not determine whether he had the ability to pay. We affirm.

DISCUSSION

I

Defendant's primary contention relates to the procedure for ordering reimbursement of attorney fees, which is governed by section 987.8.

Section 987.8 provides that a court may order defendant to pay the cost of court-appointed counsel after a hearing to determine if defendant has the ability to pay. "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." (§ 987.8, subd. (b).)

In considering defendant's ability to pay, the court shall consider defendant's present financial condition and his reasonably discernable future financial position for a period of no more than six months from the date of the hearing. (§ 987.8, subd. (g)(2).) "Unless 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." (§ 987.8, subd. (g)(2)(B).) This provision has been construed to require an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)

The trial court imposed the reimbursement order "subject to ability to pay should [defense counsel] request such a hearing." Counsel did not request a hearing, and there is no evidence in the record supporting an inference ...


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