1

Filed 12/23/15 P. v. Westine CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS CALVIN WESTINE,

Defendant and Appellant.

E061992

(Super.Ct.No. RIF10001271)

OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. 

Reversed.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, 

Deputy Attorneys General, for Plaintiff and Respondent.
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FACTUAL AND PROCEDURAL HISTORY1

On July 15, 2010, defendant pled guilty to elder abuse under Penal Code section 

368, subdivision (b)(1), and admitted two prison priors. The trial court granted defendant 

probation, with credit for time served, so he would be released immediately. Moreover, 

the court ordered defendant to reimburse the County of Riverside for 12 hours of attorney 

time at $119 per hour. Defendant did not object.2 

On September 24, 2014, over four years later, defendant made an oral petition to 

modify or vacate the judgment for attorney fees. The court denied his petition as 

untimely.

DISCUSSION

Defendant contends that the trial court erred in denying his petition to modify or 

vacate the judgment for attorney fees based on the petition being untimely.

Penal Code section 987.8, subdivision (h), states that “[a]t any time during the 

pendency of the judgment rendered according to the terms of this section, a defendant 

against whom a judgment has been rendered may petition the rendering court to modify 

or vacate its previous judgment on the grounds of a change in circumstances with regard 

to the defendant’s ability to pay the judgment. The court shall advise the defendant of 

this right at the time it renders the judgment.” 

 

1 The underlying facts are not a part of the record and are irrelevant to the issue 

presented on appeal.

2 The actual order, however, awarded $1,434.12, instead of $1,428, in attorney 

fees. 
3

The People agree that Penal Code section 987.8, subdivision (h), states that a 

petition to modify or vacate a judgment for attorney fees can be filed at any time. The 

People, however, contend that defendant did not file his motion under Penal Code section 

987.8, subdivision (h). The People state: “What [defendant] did was to seek 

reconsideration of the trial court’s initial payment order, on grounds that it was incorrect, 

rather than to claim that his ability to pay had changed.” In support of its argument, the 

People reference the reporter’s transcript and claim that defendant failed to assert “a 

change of circumstances,” as required under Penal Code section 987.8, subdivision (h). 

Defendant argues that defendant “was never permitted to state any grounds for his motion 

because it is clear the court believed no motion could be made at this stage.” We agree 

with defendant.

At the hearing on defendant’s petition, defendant started to explain at the time the 

attorney fee award was imposed, he “could not afford—.” The court cut defendant off 

before he could finish his sentence and stated: “The judge must have thought you did 

because that’s done after the case. As I said, I wasn’t the judge that did it. Four years 

later is a little long to object to it, wouldn’t you say?” When defendant again expressed 

that he wanted to get his attorney fee award dismissed, the court simply stated, 

“[d]enied.” When defendant asked if the court’s order could be appealed, the court 

responded: “No. It’s too late. See, if you don’t believe you’re going to pay the fees the 

judge assessed, then you can ask for a hearing about why it shouldn’t be so high. You 

can’t wait four years to do that.”
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In this case, the court never gave defendant the opportunity to explain why he felt 

the attorney fee order should be vacated because the court cut him off. The record 

reveals that the court did not believe that defendant had the right to challenge his fees 

because it had been over four years since the order had been made.

Therefore, we find that the trial court erred in denying defendant’s petition without 

an inquiry as to potential changed circumstances. 

DISPOSITION

The trial court’s order denying defendant’s petition to modify or vacate the 

judgment for attorney fees is reversed. The case is remanded to the trial court to conduct 

for a proper hearing on defendant’s petition under Penal Code section 987.8, subdivision 

(h). 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

KING

Acting P. J.

CODRINGTON

J.