(Super. Ct. No. CRDF10581)
The opinion of the court was delivered by: Hull , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Nelson Frank Hume entered a negotiated plea of no contest pursuant to People v. West (1970) 3 Cal.3d 595 to assault with a firearm and to the use of a shotgun in exchange for dismissal of other counts, a stipulated eight-year prison sentence with execution suspended, and a grant of formal probation with no further custodial time. The court granted probation for a term of five years subject to certain terms and conditions including an order that he pay $1,000 in attorney fees and stay away from the victim and six other people.
Defendant appeals. He challenges the order to pay attorney fees and the order to stay away from all named persons other than the victim of the offense. We strike the attorney fees order and remand for a court determination after a hearing at which evidence may be presented to properly support an order. We strike the stay away orders for all except the victim and two others, since to the latter, the victim was living with both and defendant made threats involving one of them during the same incident set forth hereafter.
On December 4, 2010, the 66-year-old defendant entered the home where Travis B. lived with his father Kenneth B. Defendant lived across the street in his mother's home. Defendant is Travis's uncle or great-uncle. Defendant kicked down the bathroom door, pointed a shotgun at Travis who was in the bathroom at the time, and threatened to kill Travis, Kenneth, and then himself. Defendant put the shotgun down, removed a pistol from his jacket pocket and pointed it at Travis's head, stating that he did not "'want to make a mess.'" Travis saw another handgun in defendant's pants pocket. Defendant then left and returned to his mother's home. The police arrived and found defendant on the ground in the backyard of another home, yelling for help. He apparently fell in an attempt to climb over the fence. A search of defendant revealed several knives. He was taken to a hospital.
A search of defendant's mother's home pursuant to a warrant revealed two pistols, both loaded and chambered with ammunition, an unloaded pistol, a sawed-off shotgun chambered with one round of birdshot and four more in the magazine, a trench knife, a bayonet, a semi-automatic rifle, two additional rifles, a flare launcher with two flares, knives, ammunition, a blowgun, a cane sword, and a hand grenade. Officers also found four grams of marijuana in two containers and a glass smoking pipe commonly used to smoke methamphetamine. When interviewed, Travis was concerned that defendant may have been under the influence of methamphetamine.
Defendant contends the trial court erred in imposing $1,000 in attorney fees without (1) a hearing, (2) a finding of an ability to pay, and (3) any support in the record.
The probation officer recommended that the court find that defendant had the "future financial ability to pay," among other fees, fines and restitution, the cost of attorney fees pursuant to Penal Code section 987.8 "in an amount as determined by the Court." The probation officer noted that although defendant began living with his mother after an accident, he owned a home where he had previously resided. The probation officer reported that defendant was retired, had not been employed for five years, and started receiving $624 per month in Social Security when he turned 62 years of age in 2006. Defendant reported to the probation officer that he was in poor physical health. Defense counsel noted that defendant had had a couple of strokes, walked with two canes, and would not be able to obtain employment.
In granting probation, the court ordered defendant to pay various fees and fines. Prior to imposing the fees and fines, the court ordered defendant to "report forthwith to the Court Collections Division for a financial evaluation. And that case-related costs shall be paid through and as directed by the Court Collections Division. The Court will find that defendant has the future financial ability to pay" the costs and payments recommended by the probation officer. The court ordered defendant to "pay the cost of attorney's fees that have been incurred by the Public Defender's Office in an amount to be determined by the Court. And that would be--I'm assuming [a] follow-up hearing [is] scheduled after a financial evaluation has been done by Court Collections." When asked to confirm, defense counsel responded that "the Court usually imposes attorney's fees at the time of sentencing" but made no request. The court then imposed $1,000 as attorney fees. The probation order reflects the $1,000 attorney fee order as a cost of probation subject to civil judgment and collection procedures.
Defendant contends there was no hearing and no evidence to support the court's order of $1,000 for attorney fees. The People argue that defendant had a hearing (the sentencing hearing) and notice (the probation officer's recommendation in the report that the court order attorney fees). The People also assert that defense counsel invited the court to address attorney fees at the time of sentencing. The People concede that there is no evidence to support the amount of $1,000, requiring remand for the trial court's determination of the actual costs incurred by ...