People v. Turner, No. H009736

• Decision Date: 24 May 1993
• Docket Number: No. H009736
• Citation: 19 Cal.Rptr.2d 736,15 Cal.App.4th 1690
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Robert TURNER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 736

19 Cal.Rptr.2d 736

15 Cal.App.4th 1690

The PEOPLE, Plaintiff and Respondent, v. William Robert TURNER, Defendant and Appellant.

No. H009736.

Court of Appeal, Sixth District, California.

May 24, 1993.

Certified for Partial Publication ^*

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ron S. Matthias, Supervising Deputy Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., for plaintiff and respondent.

Janet J. Gray, Pacific Grove, Under Appointment by the Sixth Dist., Appellate Program, for defendant and appellant.

MIHARA, Associate Justice.

I. Introduction

Defendant William Robert Turner appeals from a judgment of conviction entered upon his plea of nolo contendere to one count of the continuous sexual abuse of a child (Pen.Code, § 288.5) and an allegation that he occupied a position of special trust and committed an act of substantial sexual conduct, rendering him presumptively ineligible for probation (Pen.Code, § 1203.066, subd. (a)(9)).

On appeal, defendant contends (1) the court was unaware of its discretion to grant probation under Penal Code section 1203.066, subdivision (c); (2) the court's restitution order is improper in that it fails to specify the amount of restitution and identify the losses to be reimbursed; and (3) the court erred in imposing attorney fees because it failed to hold a hearing to determine defendant's ability to pay. For reasons stated below, we strike the court's attorney fee order. We reverse that portion of the judgment imposing restitution and remand for further proceedings on restitution only.

In the published portion of this opinion, we address the court's power, under Penal Code section 987.8, to correct an erroneous order imposing attorney fees after a successful appeal.

II. Background

Defendant began molesting his stepdaughter when she was eight years old. The acts of molestation continued for a period of four years and included fondling the breasts and genitals of the victim, oral copulation, masturbation of defendant, and an attempt to perform an act of sexual intercourse. The molestations occurred once a week and continued until October 1991, when the victim's mother, M., discovered defendant in the act of molesting her daughter and telephoned the police.

When apprehended by the police, defendant stated that he did not know why he was molesting his stepdaughter, but "just [couldn't] help [him]self." He also indicated that he had been molested as a child by his own father. When interviewed the following morning, defendant told police the victim had been a willing participant. In a subsequent interview with the probation officer, however, defendant expressed remorse for his actions and admitted that he had verbally intimidated the victim, as his father had done with him. Defendant told the probation officer that his father had performed acts of sodomy and oral copulation upon him from the time he was 8 years old until he left home at the age of 17.

When defendant appeared for judgment and sentence, the matter of probation eligibility was not addressed by the court or the parties. The court denied probation and imposed the midterm of imprisonment. It then ordered defendant "to pay restitution to the victim for all losses sustained and attorney fees in the sum of two hundred dollars ($200)." ¹

III. DISCUSSION

A.-B. ^**

C. Attorney Fees

PENAL CODE SECTION 987.8⁸, ⁹ sets forth the statutory procedure by which a trial court may order a criminal defendant to reimburse the county for the costs of providing court-appointed counsel. Under the terms of the statute, the trial court may order a defendant to pay all or a portion of the costs of his legal representation if the court determines the defendant has the "present ability to pay" such costs "upon the conclusion of the criminal proceedings." ¹⁰ This latter phrase has been interpreted to refer to the date of judgment (People v. Spurlock (1980) 112 Cal.App.3d 323, 328, 169 Cal.Rptr. 320; People v. Barger (1979) 97 Cal.App.3d 661, 158 Cal.Rptr. 825), which, in a criminal case, constitutes the date on which the trial court orally pronounces sentence. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9, 14 Cal.Rptr.2d 801, 842 P.2d 100.) The statute permits an additional hearing on defendant's ability to pay so long as it takes place within six months of the judgment. (§ 987.8, subd. (b); People v. Spurlock, supra, 112 Cal.App.3d at pp. 328-329, 169 Cal.Rptr. 320.)

In the instant case, the court ordered defendant to pay $200 in attorney fees for the services of the public defender. Defendant challenges the court's order on the ground that the court failed to first hold a hearing to determine his present ability to pay such costs as required under section 987.8, subdivision (b). The People concede that the court's order violated the statutory mandate, and we find their concession to be appropriate. The more difficult question, however, is whether the trial court retains jurisdiction to modify its order, following the issuance of our remittitur.

It is the general rule that "[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur" (People v. Perez (1979) 23 Cal.3d 545, 554, 153 Cal.Rptr. 40, 591 P.2d 63), thereby divesting the trial court of jurisdiction over anything affecting the judgment. (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1757, 16 Cal.Rptr.2d 340; People v. Schulz (1992) 5 Cal.App.4th 563, 570, 7 Cal.Rptr.2d 269.) Jurisdiction survives, however, where provided by statute. (People v. Karaman, supra, 4 Cal.4th 335, 351-352, 14 Cal.Rptr.2d 801, 842 P.2d 100; People v. Lockridge, supra, 12 Cal.App.4th at p. 1757, 16 Cal.Rptr.2d 340.) In such cases, the jurisdictional period generally is not tolled during the pendency of an appeal. (See People v. Lockridge, supra, 12 Cal.App.4th at pp. 1755, 1757-1758, 16 Cal.Rptr.2d 340.)

In the case at bench, both parties agree that section 987.8 constitutes a statutory exception to the general rule. Principles of statutory construction support this interpretation.

"[O]ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose...." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387, 241 Cal.Rptr. 67, 743 P.2d 1323.) "[S]tatutes must be construed so as to give a reasonable and common-sense construction consistent with the apparent purpose and intention of the lawmakers--a construction that is practical rather than technical, and will lead to wise policy rather than mischief or absurdity. [Citation.]" (People v. Martinsen (1987) 193 Cal.App.3d 843, 848, 238 Cal.Rptr. 530.)

Under the plain language of the statute at issue here, the ability-to-pay hearing need not be held on the date judgment is pronounced; rather, the statute empowers the court to hold such hearing within six months of the pronouncement of judgment. As noted by People v. Spurlock, supra, the statute also authorizes the court to cause a county officer to make inquiry into the defendant's ability to pay, and "presumably report back to the court." (People v. Spurlock, supra, 112 Cal.App.3d at p. 328, 169 Cal.Rptr. 320.) Since, from a practical standpoint, such reports could not always be prepared and filed on the day of judgment, it must be concluded that the Legislature intended the trial court to retain jurisdiction over the matter of attorney's fees for a reasonable period of time--that is, a six-month period--following the pronouncement of judgment.

A notice of appeal, however, must be filed within sixty days of judgment. Hence, if we were to apply the general rule divesting the trial court of jurisdiction upon the filing of a notice of appeal, that provision of the statute providing for an additional hearing within six months of judgment would be effectively defeated in every case where an appeal was filed. Such a result would frustrate the intent of the Legislature and render the provision surplusage. Thus, we agree with the parties that the trial court is not divested of jurisdiction to act on the question of attorney's fees under section 987.8 upon the filing of a notice of appeal.

This brings us to the crucial question of whether the six-month period prescribed in the statute for the ability-to-pay hearings is jurisdictional--in other words, does the court lose jurisdiction to conduct further proceedings under section 987.8 once the six-month period has expired? An affirmative answer would deprive the trial court of the opportunity to correct error in the imposition of attorney's fees in virtually every case where an appeal is filed. To avoid such a result, the People suggest that the six-month period be interpreted as "defin[ing] the outer limits of the trial court's jurisdiction to act in the first instance, not forever." Although we are not insensitive to the People's concerns, section 987.8 simply does not lend itself to such an interpretation.

At least two published decisions have implied that the time period is jurisdictional. In Spurlock, the trial court sentenced the defendant to a prison term, stayed execution of sentence, and placed the defendant on probation. As a condition of probation, the court imposed a county jail term of 15 months. The court also purported to reserve jurisdiction over the matter of attorney's fees, indicating that it would hold a hearing 60 days after the defendant's release...