Filed 10/26/15 P. v. Ward CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN WARD
, Defendant and Appellant. B258987

(Los Angeles County Super. Ct. No. BA 405490 )

APPEAL from a judgment of the Superi or Court of Los Angeles County, Sam Ohta, Judge. Affirmed and remanded with directions. Kimberly Howland Meyer, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Atto rney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.2

After his guilty plea to one count of atte mpted murder (Pen. Code, §§ 664, 187), 1

the trial court sentenced defendant Kevin Ward (defendant) to 19 years in state p rison

. We consider whether defendant must pay $132 in attorney fees when the court did not impose such fees during the oral pronouncement of sentence. We also determine whether defendant is entitled to an additional day of custody credit.

BACKGROUND

In 2012, defendant attacked Israil Barri outside of World Share, a community center located near Fifth and San Pedro in Los Angeles. An amended information filed

on May 13, 2013
, charged defendant with one count of assault likely to produce great bodily i njury (§ 245, subd. (a)(4)), one count of willful, deli b erate , and premeditated attempted murder (§§ 664, 187, subd. ( a))
, and one count of assault with a deadly weapon (§ 245, subd. (a)(1)).

D efendant pled guilty to the attempted murder charge

. The pr obation report prepared in advance of sentencing stated that defendant was a transient, and that when booked, he provided no occupational or employment information. Further, the probation report stated his income and assets were unknown, and that previous ly , defendant had worked as a boxer, day laborer, and in shipping and receiving. The report did not make

a n attorney fee s recommendation.
The court sentenced defendant to a term of nineteen years, consisting of the
mid term of seven years, doubled pursu ant to section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i), plus an additional five years pursuant to section 667, subdivision (a). In addition to fines and restitution, the court awarded defendant 500 days of cust ody credit (435 days of actual time, plus 65 days of local
conduct credit ). When orally pronouncing sentence, t he court did not impose an attorney
fees assessment nor did it make a finding that defendant had the ability to pay attorney

1 All further statutory references are to the Penal Code.3

fees . T he minute o rder for the sentencing hearing and the abstract of judgment , however,

state defendant is ordered to pay $132 in attorney fees pursuant to section 987. 8.

DISCUSSION
Section 987.8 permits a county to recover some or all of the costs of defense expended on behalf of an indigent criminal defendant. ( Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235, 1245.) Under subdivisions (b) and (c) of the statute, an order of reimbursement can be made only if the court concludes, after notice and an evidentiary hearing, that the defendant has “ the present ability

. . . to pay all or a portion ” of the
defense co sts. (§ 987.8, subds. (b), (c) & (e); People v. Amor (1974) 12 Cal.3d 20, 29; People v. Phillips ( 1994 ) 25 Cal.App.4th 62 , 72

- 73.) If this finding is ma de, “ the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the
defendant ’ s financial ability. ” (§ 987.8, subd. (e).) Defendant argues that the court made no finding he has the ability to pay the attorney fee s assessment and he urges us to strike it. He also argues the trial court should have given him an additional day of custody credit. The Attorney General concedes it

was error to re quire payment of attorney fees without a finding as to the ability to pay, but urges us to remand for such a determination rather than striking the assessment.

R emanding the matter is the preferred procedure when a court orders attorney fees
but does not make a finding as to whether defendant has an ability to pay. Here, however, the court did not order defendant to pay attorney fees when orally pronouncing sentence. The oral pronouncement controls over the subsequent minute order and abstract of judgmen t. ( People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14
Cal.3d 466 , 471

- 472; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We therefore strike the fee assessment and order it deleted from the abstract of judgment.4

Defendant also argues that he is entitled to an additional day of custody credit. The court awarded defendant 500 days of credit, consisting of 435 days of actual cr e dit and 65 days of local conduct credit. The record dis c loses that defendant was arrested on
Febr uary 5, 2013
, and sentenced on April 16, 2014, for a total of 436 days in custody

. The refore, the proper calculation of d efendant’s custody credit should be 501 days of total custody credit, consisting of 436 days of actual credit and 65 days of conduct c redit.5 DISPOSITION
The judgment is modified to strike the $132 attorney fee assessment and to give
defendant 436 days of custody credit and 65 days of conduct credit, for a total of 501 days
credit . In all other respects, the judgment is affirmed.

T he clerk of the superior court shall prepare an amended abstract of judgment deleting the $132 attorney fees assessment and correcti ng the amount of custody credit

. The clerk of the superior court shall deliver a copy of the amended abstract of judgment

t o the Department of Corrections and Rehabilitation

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We Concur:

TURNER, P.J.

KRIEGLER, J.