People v. Kekheya CA6 ( 2014 )

Filed 5/2/14 P. v. Kekheya CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039078
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1109875)
v.
ABDUL HASEEB KEKHEYA,
Defendant and Appellant.
Defendant Abdul Haseeb Kekheya was charged with possession of marijuana for
sale (Health & Saf. Code, § 11359 – count one), transportation of marijuana (Health &
Saf. Code, § 11360, subd. (a) – count two), and possession of concentrated cannabis
(Health & Saf. Code, § 11357, subd. (a) – count three). The jury found defendant guilty
of count two and acquitted him of count three. It was unable to reach a verdict on count
one, and this count was later dismissed. The trial court suspended imposition of sentence
and placed defendant on probation for three years on condition that he serve eight months
in jail.1 On appeal, defendant contends that the trial court erred by ordering him to pay
$1,000 in attorney’s fees, a presentence investigation fee, and a probation supervision fee.
For the reasons stated below, we affirm.
1
The trial court also stated that defendant would be eligible for the RCP
(Regimented Corrections Program) and indicated that he would be released from custody
after two months.
I. Statement of Facts
On June 9, 2011, Officer Greg Borromeo, who testified as an expert in the
recognition of marijuana sales, initiated a traffic stop after observing a vehicle exceeding
the speed limit. As he approached the driver’s side window, Officer Borromeo detected
the odor of marijuana. Upon contacting the driver, who was defendant, Officer
Borromeo asked him if there was marijuana in the vehicle. Defendant replied that there
was not, but he showed him a glass marijuana pipe from the dashboard.
Officer Borromeo searched the vehicle and found a duffel bag containing four
sandwich bags of marijuana, a larger bag of marijuana, a small plastic bag of
concentrated cannabis, and a digital scale. After Officer Borromeo searched defendant,
he recovered $405 and a medical marijuana card from his wallet. He also found text
messages on defendant’s cell phone which suggested negotiations involving the sale of
marijuana.
Jack Rousseau, a criminalist, testified that he examined the suspected contraband
and found 74.55 grams of concentrated cannabis.
On May 27, 2011, Officer John Ward contacted defendant to investigate a
robbery. Defendant told him that he had placed an ad on Craig’s List to sell or trade
medical marijuana. After receiving a text from someone who wanted to buy a quarter
pound of marijuana for $600, defendant took 5 grams of marijuana to meet the potential
buyer. After defendant asked this individual if he had a medical marijuana card, a second
individual entered the room and defendant was robbed at gunpoint.
Defendant testified on his own behalf. He was a college student and had posted an
ad on Craig’s List stating that he had excess marijuana that he wanted to “get rid of.” He
then described the incident in which he was robbed. Defendant also testified that he had
obtained a medical marijuana card after he went to a clinic and told a doctor that he had
trouble sleeping, eating, and breathing. Regarding the cash found on his person,
defendant explained that it came from his wages and his financial aid and that he was
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going to use it to purchase a laptop computer. When asked about the scale, he stated that
he bought it to avoid being “ripped off” when he purchased marijuana and to assist in his
diet. He bought the concentrated cannabis to smoke and to make edibles. According to
defendant, the leafy marijuana made it difficult for him to concentrate but the
concentrated cannabis did not. The leafy marijuana belonged to his friend.
II. Discussion
Defendant contends that the trial court erred by ordering him to pay attorney’s
fees, because there was insufficient evidence that he had the ability to pay these fees.
Here, the trial court imposed attorney’s fees of $1,000. There was no defense
objection. The trial court also imposed a $50 crime laboratory fee plus penalty
assessment, a $150 drug program fee plus penalty assessment, a restitution fund fine of
$200 plus a 10 percent administrative fee, and a $70 AIDS education fund fine.
Penal Code section 987.8 provides in relevant part: “(b) 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. . . . [¶] (c) In any
case . . . in which the defendant, at the conclusion of the case, appears to have sufficient
assets to repay, without undue hardship, all or a portion of the cost of the legal assistance
provided to him or her, . . . the court shall make a determination of the defendant’s ability
to pay as provided in subdivision (b), and may, in its discretion, make other orders as
provided in that subdivision. [¶] . . . [¶] (g) As used in this section: [¶] . . . [¶] (2)
‘Ability 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 discernible future financial position. In no event
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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 discernible future 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. [¶] (D) Any other
factor or factors which may bear upon the defendant’s financial capability to reimburse
the county for the costs of the legal assistance provided to the defendant.”
Relying on People v. McCullough (2013) 56 Cal. 4th 589, the Attorney General
argues that the issue has been forfeited. Even assuming that the issue has not been
forfeited, we find no prejudice to defendant. The record supports an implicit finding of
defendant’s ability to pay the attorney’s fees. Defendant, a 20-year-old college student,
lived with his parents and had no dependents. He had no health problems. Until a month
before the sentencing hearing, he had been employed part-time at John Power’s Modeling
and Acting School where he was paid $1,025 twice a month. According to defendant’s
father, defendant was currently employed at a mechanic shop. Given his youth, good
health, and ability to find work, there was sufficient evidence to support the trial court’s
implicit finding that defendant had the ability to pay $1,000 in attorney’s fees in addition
to the other fines and fees that were imposed.
Defendant also contends that there was no evidence that $1,000 represented the
actual cost to the County of Santa Clara for legal services for him.
Here, the public defender represented defendant at the preliminary hearing, the
hearing on the motion to suppress evidence, the five-day jury trial, and the sentencing
hearing. In addition, the public defender made at least 20 court appearances on
defendant’s behalf. Based on this record, $1,000 represents far less than the actual cost
of the legal services provided by the County of Santa Clara for defendant.
Defendant also contends that the trial court erred when it ordered him to pay
presentence investigation and monthly probation supervision fees.
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Penal Code section 1203.1b states in relevant part: “[I]n any case in which a
defendant is granted probation or given a conditional sentence, the probation officer, or
his or her authorized representative, taking into account any amount that the defendant is
ordered to pay in fines, assessments, and restitution, shall make a determination of the
ability of the defendant to pay all or a portion of the reasonable cost of any probation
supervision, . . . [and] any presentence investigation. . . . The court shall order the
defendant to appear before the probation officer, or his or her authorized representative,
to make an inquiry into the ability of the defendant to pay all or a portion of these costs.
The probation officer, or his or her authorized representative, shall determine the amount
of payment and the manner in which the payments shall be made to the county, based
upon the defendant’s ability to pay. The probation officer shall inform the defendant that
the defendant is entitled to a hearing, that includes the right to counsel, in which the court
shall make a determination of the defendant’s ability to pay and the payment amount.
The defendant must waive the right to a determination by the court of his or her ability to
pay and the payment amount by a knowing and intelligent waiver.”
Defendant argues that the trial court failed to make a finding on his ability to pay
these fees and that there was no evidence of his ability to pay them. The Attorney
General argues that the issue has been forfeited.
Even assuming that the issue has not been forfeited, defendant’s challenge fails.
Penal Code section 1203.1b, subdivision (a) does not require the trial court to make a
finding on a defendant’s ability to pay the presentence investigation and monthly
probation supervision fees prior to ordering a defendant to report for a determination by
the Department of Revenue on the issue. Here, the trial court ordered defendant to go to
the Department of Revenue for a payment plan. The Department of Revenue will then
inquire into defendant’s ability to pay, but no determination of ability to pay has yet been
made. The trial court set maximum amounts of $450 for the presentence investigation
fee and $110 for the monthly probation supervision fee. Thus, the trial court left open
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what portion, if any, of those maximum amounts defendant would pay. After the
Department of Revenue has determined defendant’s ability to pay, defendant must then
be informed that he would have the right to challenge that determination at an ability-to-
pay hearing before the trial court. Thus, any challenges to the presentence investigation
and monthly probation supervision fees are premature.2
Defendant next contends that the trial court erred when it imposed attorney’s fees
and presentence investigation and monthly probation supervision fees as conditions of
probation.
Requiring payment of attorney’s fees as a condition of probation is error. (People
v. Flores (2003) 30 Cal. 4th 1059, 1067, fn. 5.) Presentence investigation and monthly
probation supervision fees also cannot be made conditions of probation. (People v.
Washington (2002) 100 Cal. App. 4th 590, 592-593.)
Here, after the trial court imposed certain fees and fines as conditions of probation,
it stated: “In addition to the above orders of probation, the Court orders the following
fees that are not conditions of probation but are separately due to the Department of
Revenue during your period of probation.” The trial court then imposed various fees,
including the maximum amounts for the presentence investigation and monthly probation
supervision fees and attorney’s fees. Thus, the trial court correctly stated that payment of
probation investigation and monthly probation supervision fees as well as attorney’s fees
was not a condition of probation.
Defendant, however, focuses on the trial court’s question, “Do you understand and
accept the terms and conditions of your probation, including all fines and fees . . . ?” He
2
At the conclusion of the hearing, the trial court asked defendant if he “waive[d]
[his] right to a hearing on the fees?” Defendant responded affirmatively. It is unclear
what the trial court was referring to. However, given that defendant’s ability to pay these
fees had not yet been determined and a defendant’s waiver of his right to a hearing
pursuant to Penal Code section 1203.1b, subdivision (a) must be “knowing and
intelligent,” defendant did not waive his right to challenge his ability to pay the
presentence investigation and monthly probation supervision fees.
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argues that the clause “including all fines and fees” indicated that the presentence
investigation, monthly probation supervision, and attorney’s fees were ordered as
conditions of probation. We disagree. This clause referred to the fines and fees that were
imposed as conditions of probation.
III. Disposition
The order is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
______________________________
Bamattre-Manoukian, Acting P. J.
______________________________
Grover, J.
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