Filed 5/5/14 P. v. Pincetl CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT MAURICE PINCETL, III,

Defendant and Appellant.

 B247923

 (Los Angeles County

 Super. Ct. No. KA096766)

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

David C. Brougham, Judge. Affirmed in part, reversed in part and remanded with 

directions. 

Adrian K. Panton, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________
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A jury convicted Robert Maurice Pincetl, III of conducting a business without a 

license. On appeal, Pincetl contends the restitution and probation revocation fines must 

be stricken because they were not orally imposed by the trial court, and he challenges the 

order requiring him to reimburse the County of Los Angeles for his court-appointed 

attorney fees because no evidentiary hearing was held to determine his ability to pay 

those fees. We reverse the judgment as to the award of attorney fees award and remand 

the matter to permit the trial court to hold the required evidentiary hearing. We also 

strike the restitution fine and probation revocation fine not orally imposed. In all other 

respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Pincetl was arrested and charged in an information with one count of cultivating 

marijuana (Health & Saf. Code, § 11358) and one count of possessing marijuana for sale 

(Health & Saf. Code, § 11359) after police found him with numerous marijuana plants 

growing inside a building in the city of Irwindale. As to both counts, the information 

specially alleged Pincetl had suffered one prior serious or violent felony conviction 

within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, 

subds. (a)-(d)). Pincetl pleaded not guilty and denied the special allegation. 

Pincetl was separately charged in a misdemeanor complaint with conducting a 

business without a license in violation of Irwindale Municipal Code section 5.04.20. 

Pincetl pleaded not guilty to the charge. 

After the trial court granted the People’s motion to consolidate the cases, a jury 

convicted Pincetl of conducting a business without a license (count 3), but acquitted him 

of the marijuana-related felony charges (counts 1 and 2). 

The trial court suspended imposition of sentence and placed Pincetl on 36 months 

of summary probation. Among the conditions of probation, the court ordered Pincetl to 

pay a $500 fine and $1,262 in county attorney fees for his court-appointed defense 

counsel, but imposed no other fines or fees. The court made no reference to the 

restitution fine or probation revocation fine, or to any specific fees and penalties. The 
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prosecutor did not request additional fines and fees, nor object to their omission by the 

trial court. The minute order of the February 26, 2013 sentencing hearing shows that 

Pincetl was ordered to pay a $500 fine, a $140 restitution fine (Pen. Code, § 1202.4), a 

stayed $140 probation revocation fine (Pen. Code, § 1202.44), $1,262 in attorney fees 

(Pen. Code, § 987.8) and certain mandatory fees and penalties. 

DISCUSSION

1. Attorney Fees

Penal Code 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.) As defined in Penal Code section 987.8, subdivision (g)(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 discernable future financial position. . . .” Subdivision (e) of the 

statute confirms the defendant’s right to be heard in person, to present witnesses and 

documentary evidence and to confront any witnesses testifying about his ability to pay. 

Although the defendant’s present ability to pay may be inferred from the content and 

conduct of the hearing (see People v. Phillips (1994) 25 Cal.App.4th 62, 71), whether 

express or implied the finding of ability to pay must be supported by substantial 

evidence. (See People v. Milsen (1988) 199 Cal.App.3d 344, 347.)

As Pincetl contends and the People concede, in this case there was no hearing to 

determine Pincetl’s ability to pay attorney fees nor was there evidence otherwise in the 

record sufficient to support such a finding. Additionally, the trial court erred by imposing 

reimbursement of attorney fees as a condition of probation, which is absolutely 

prohibited in California courts. (People v. Flores, supra, 30 Cal.4th at p. 1067, fn. 5.)
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Accordingly, we reverse the judgment as to the attorney fee order and remand for 

a hearing on Pincetl’s ability to pay in accordance with Penal Code section 987.8. 

(People v. Flores, supra, 30 Cal.4th at p. 1063 [remand is proper remedy when court 

orders defendant to pay attorney fees under Pen. Code, § 987.8 without substantially 

complying with procedural safeguards enumerated in that section]; People v. Verduzco

(2010) 210 Cal.App.4th 1406, 1421 [if the attorney fee award is in error, remand is 

permissible for the purpose of determining whether the defendant has the ability to pay 

attorney fees].)

2. Restitution Fine and Probation Revocation Fine

The February 26, 2013 minute order reflects the imposition of a restitution fine 

and a probation revocation fine not orally imposed by the trial court. Pincetl argues and 

the People acknowledge, because the trial court had the discretion to not impose these 

fines, the prosecutor’s failure to object forfeited any claim of error on appeal. (People v. 

Tillman (2000) 22 Cal.4th 300, 302-303.) These fines are stricken. 

DISPOSITION

The judgment is reversed as to the order to reimburse the County of Los Angeles 

for $1,262 in county attorney fees. The matter is remanded for the trial court to 

determine, in accordance with the applicable statute, Pincetl’s ability to pay such fees 

before imposing them. If any order directing payment of attorney fees is entered on 

remand, the order will make clear that it is not a condition of probation. The judgment is 

further modified to strike the restitution fine and probation revocation fine, which the 

court did not orally impose. In all other respects the judgment is affirmed. 

WOODS, J. 

We concur: 

PERLUSS, P. J. ZELON, J.