Filed 8/11/15 People v. Velasco CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN VELASCO,

Defendant and Appellant.

 B255534

 (Los Angeles County

 Super. Ct. No.BA407210)

APPEAL from a judgment of the Superior Court of Los Angeles County, Sam 

Ohta, Judge. Affirmed in part and remanded in part with instructions.

Judith Kahn, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel and Tita 

Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Defendant Juan Velasco1 was convicted by a jury of one count of unlawful sexual 

intercourse and one count of forcible rape. On appeal, he challenges the trial court’s 

imposition of attorney’s fees and its calculation of presentence custody credits. We 

remand this matter for the limited purpose of allowing the trial court to determine these 

issues. The judgment is otherwise affirmed.

FACTUAL AND PROCEDURAL SUMMARY2

In an information filed on August 21, 2013, Velasco was charged with three 

counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, 

subd. (a) (counts 1, 2, and 3));3two counts of committing a lewd act upon a child aged 14 

or 15 (§ 288, subd. (c)(1) (counts 4 and 5)); one count of unlawful sexual intercourse with 

a minor (§ 261.5, subd. (c) (count 6)); and one count of forcible rape (§ 261, subd. (a)(2) 

(count 7)). As to all counts, the alleged victim was S.M., Velasco’s stepdaughter. 

Velasco entered a plea of not guilty. 

Following a jury trial, Velasco was found guilty of unlawful intercourse with a 

minor (count 6) and forcible rape (count 7). The jury declared it was deadlocked and 

unable to reach a verdict as to counts one through five, and the court declared a mistrial 

on these counts. 

On April 10, 2014, the court dismissed counts one through five on the prosecutor’s 

motion. The court sentenced Velasco to a total of 11 years in state prison, comprised of a 

base term of three years on count 6 and a consecutive term of eight years on count 7. 

Velasco was awarded 495 days of presentence custody credits. The court also ordered 

 

1 Defendant is also referred to in the record as “Juan Velascobravo” and “Juan 

Bravo,” including at the preliminary hearing and in the information. However, as 

reflected in a minute order dated February 11, 2014, defendant clarified that his true 

name is Juan Velasco. 

2 We omit the majority of the factual background of this matter, as it is not pertinent 

to the issues raised on appeal.

3 All further statutory references are to the Penal Code unless otherwise indicated.
3

Velasco to pay various fines and fees, including $132 in attorney’s fees (§ 987.8). 

Velasco timely appealed. 

DISCUSSION

A. Imposition of Attorney’s Fees

Velasco contends that the trial court improperly imposed attorney’s fees upon him 

without the notice and hearing required by statute. The Attorney General largely 

concedes this point, and we agree.

Section 987.8, subdivision (b), “provides that, upon the conclusion of criminal 

proceedings in the trial court, the court may, after giving the defendant notice and a 

hearing, make a determination of his present ability to pay all or a portion of the cost of 

the legal assistance provided him.” (People v. Flores (2003) 30 Cal.4th 1059, 1061 

(Flores).) At such a hearing, the defendant is entitled to various rights, including the 

right to be heard in person, to present witnesses and documentary evidence, to confront 

and cross-examine adverse witnesses, to disclosure of the evidence against him or her, 

and to a written statement of the court’s findings. (§ 987.8, subds. (e)(1)-(e)(5).) “While 

the statutory language does not mandate an express finding of an ability to pay, the 

statute contains a presumption that those sentenced to prison do not have the ability to 

pay. [Citations.]” (People v. Verduzco (2012) 210 Cal.App.4th 1406, 1421.) “Thus, the 

court must make an express finding of unusual circumstances before ordering a state 

prisoner to reimburse his or her attorney. [Citations.]” (Ibid.; § 987.8, subd. (g)(2)(B).)

Here, it is undisputed that the trial court failed to give notice or hold a hearing 

regarding the potential imposition of attorney’s fees. In fact, the trial court’s order that 

Velasco pay $132 in attorney’s fees is not reflected in the transcript of the sentencing 

hearing; it appears only in the minute order of that hearing and the subsequent abstract of 

judgment. Thus, the trial court made no finding that unusual circumstances existed to 

overcome the presumption that Velasco, who was being sentenced to 11 years in prison, 

lacked the present ability to pay any attorney’s fees. 

We note that the Attorney General does not contend that Velasco waived his right 

to challenge the imposition of attorney’s fees on appeal by failing to object during his 
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sentencing hearing. As noted above, based on the reporter’s transcript, it appears there 

was no reference to the imposition of attorney’s fees during the sentencing hearing. Nor 

was there any mention of the possibility of attorney’s fees in the probation report. Thus, 

as it appears that Velasco was never given notice or the opportunity to object to the 

imposition of those fees, the forfeiture rules are inapplicable here. (See People v. Aguilar

(2015) 60 Cal.4th 862, 867-868 [forfeiture appropriate where “defendant had two 

opportunities to object to the fees the court imposed, and availed himself of neither,”

including “when the court, at sentencing, announced the fees it was imposing,” and then, 

as advised by the court, “in subsequent proceedings before the probation officer”]; 

People v. Trujillo (2015) 60 Cal.4th 850, 858-859 [notice of potential imposition of fees 

from probation report].) Accordingly, the order requiring Velasco to pay attorney’s fees 

cannot be sustained. 

Where, as here, the trial court did not conduct the noticed evidentiary hearing 

required by section 987.8, remand is appropriate to allow the court to determine 

Velasco’s ability to pay attorney’s fees. (See, e.g., People v. Flores, supra, 30 Cal.4th at 

p. 1069 [affirming remand order by Court of Appeal to allow hearing on defendant’s 

ability to pay]; People v. Verduzco, supra, 210 Cal.App.4th at p. 1420-1421.) Velasco 

argues that remand would be futile, as his time spent in prison would foreclose a finding 

that he had the ability to pay fees. In light of the lack of any discussion on the record of 

Velasco’s ability to pay, we find it is preferable to remand this issue to allow the trial 

court to make the proper inquiry into Velasco’s financial position.

B. Calculation of Presentence Custody Credits

Velasco contends the trial court incorrectly calculated his presentence custody 

credits and requests that we modify the judgment accordingly. The Attorney General 

notes that the record is not clear whether the trial court accounted for all of Velasco’s 

time spent in custody and therefore asks that we remand to the trial court for recalculation 

of the presentence custody credits.

A defendant is entitled to credit for all days actually spent in custody, including 

the day of arrest and the day of sentencing. (People v. Browning (1991) 233 Cal.App.3d 
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1410, 1412; People v. Smith (1989) 211 Cal.App.3d 523, 526.) He is also entitled to 

good conduct credit computed at 15 percent of the actual time spent in custody. (§ 

2933.1.) Here, Velasco was awarded 495 days of presentence credit, reflecting 431 days 

in actual custody and 64 days for good conduct. He was initially arrested on November 

17, 2012 and sentenced on April 10, 2014. Velasco contends that he was in custody the 

entire time and was therefore entitled to 508 days of actual custody credits and 76 days of 

good conduct credit for a total award of 584 days of credits. However, the record

contains statements by a police officer witness and by Velasco’s trial counsel suggesting 

that Velasco was released for some period of time following his initial arrest, pending the 

outcome of DNA tests, and was then re-arrested. The record does not reflect the dates of 

Velasco’s release or subsequent arrest. We therefore cannot determine whether the trial 

court properly calculated Velasco’s presentence custody credits based on this 

information. Remand is appropriate to allow the trial court to resolve this issue.

DISPOSITION

The matter is remanded to the trial court for a hearing on Velasco’s ability to pay 

attorney’s fees and for determination of the appropriate calculation of presentence 

custody credits. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.