P. v. Schwarz

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Filed 1/21/10 P. v. Schwarz CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN BRUCE SCHWARZ,
Defendant and Appellant.
C059021
(Super. Ct. No.
07F07920)
A jury convicted defendant John Bruce Schwarz of possession
of methamphetamine and unlawful possession of a firearm.
(Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 12021,
subd. (c)(1).) The trial court suspended imposition of sentence
and granted defendant probation. Defendant timely appealed.
In a supplemental brief, defendant contends his Sixth
Amendment right to confront the evidence against him was
violated because the analyst who tested the alleged drugs was
not called as a witness; instead, her report was described by
the testimony of her supervisor, himself an expert drug analyst.
A recent United States Supreme Court decision, Melendez-Diaz v.
Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314] (Melendez-

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Diaz), supports defendant‟s contention of error. Because we
cannot say the error was harmless beyond a reasonable doubt, we
reverse the drug possession count.
However, this does not affect the gun possession count. As
to that count, we reject defendant‟s contentions that the
prosecutor committed misconduct by diluting the reasonable doubt
standard during closing argument, the trial court became an
advocate for the People by asking too many questions, and the
trial court misinstructed the jury on circumstantial evidence.
We agree with defendant‟s contentions that the probation
order is mistaken or unclear in some respects. For this reason,
and because of the reversal of the drug count, we remand for
further proceedings.
FACTS
The parties stipulated that on February 24, 2006, defendant
was convicted of brandishing a knife, a misdemeanor in violation
of Penal Code section 417. As a matter of law, that conviction
prohibits defendant from possessing firearms for 10 years.
(Pen. Code, § 12021, subd. (c)(1).)
Officer Jacob Gullion, of the Sacramento Police Department,
testified that at about 1:00 a.m. on August 14, 2007, he and two
other officers arrived at a house and defendant answered the
door. The house had two bedrooms, one with men‟s clothing and
one with women‟s clothing. In the former, Officer Gullion found
mail addressed to defendant at that address. On a desk in that
bedroom he found two glass narcotic smoking devices and a black
container with a white crystalline substance in clear plastic.

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Based on his training and experience, he believed the substance
was methamphetamine. In a drawer of that desk he found two
packages, each of which contained 100 one-inch-square plastic
bags used for drug sales, and a handgun. On a dresser he found
a computer printout with instructions for making
methamphetamine. In defendant‟s pocket, Officer Gullion found
five more of the small baggies, a couple of which contained
white residue that looked like methamphetamine. Defendant told
Officer Gullion that he found the gun at a construction site.
A 911 call by defendant‟s mother at 1:05 that morning was
played for the jury. In part, she stated that other people were
in defendant‟s room with him, dealing drugs. She also said that
defendant had a gun and used “crank,” and that morning she found
instructions in his computer about “how to cook it.” Officer
Michael Smith testified that as the officers arrived, he spoke
to a man (not defendant) sitting on the porch.
Ray Bartneck testified he is a supervising criminalist at
the Sacramento County District Attorney‟s Laboratory of Forensic
Services and has worked there for over 26 years. He has a
bachelor‟s degree in forensic science with minors in biology and
chemistry, and over 27 years “of crime lab experience, including
seven to eight years of bench experience in the analysis of
controlled substance[s]. Over the years, I have been the
supervisor of the chemistry unit which tests for drugs off and
on now for maybe seven or eight years.”
In the drug laboratory, an analyst retrieves the substance
from the evidence section; then observes, weighs, and tests the

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substance; then uses notes, entered into a computer, to record
the results in a report. Bartneck reviews the report, along
with the analyst‟s notes, before he approves it. Bartneck has
qualified over 100 times as a courtroom expert in testing
controlled substances.
Bartneck testified that a subordinate, Deborah Henry,
chemically tested the substance in this case. Henry had worked
in the laboratory for over 18 years, Bartneck had personally
watched her work, and she was given yearly proficiency testing,
which she had always passed so far as he knew. Bartneck
reviewed Henry‟s laboratory notes and her report in this case.
He also reviewed printouts from a gas chromatograph/mass
spectrometer, which records the chemical components of a sample.
Several times during his testimony, Bartneck stated that he
trusted that Henry did the things her notes and report state she
did. Three illustrations follow:
1. “Q[.] Did Miss Henry receive the alleged narcotic
sample in a sealed condition?
“A[.] Yes, she did.”
2. “Q[.] Did Miss Henry analyze the sample accurately?
“[Objection overruled.]
“[A.] Based upon my review of her notes, yes, she did.”
3. “Q[.] And she wrote orange down, but you don‟t know as
a matter of fact whether or not she actually did the test?
“A[.] She put it in her notes. I believe she did the
test.

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“Q[.] Okay. So you believe she did the test because it
was in her notes, but you didn‟t see her do it?
“A[.] I have no reason to suspect that she didn‟t do it.”
Based on his review of Henry‟s notes, Henry‟s report, and
the chromatograph/spectrometer printouts, Bartneck testified he
agreed with Henry‟s conclusion that the “sample contains
methamphetamine, net weight 4.57 grams.”
The parties stipulated that 4.57 grams was a useable amount
of methamphetamine.
Henry‟s report was introduced into evidence without
objection. It is signed by Henry and Bartneck, but not under
penalty of perjury, and it is not written in the form of an
affidavit or declaration.
DISCUSSION
I. Confrontation Clause
At trial, defense counsel explained that she had thought
Henry was sick, but learned she was merely out of town: “Being
sick and out of town are two different things. . . . I think
this was a way to skirt around the issue of getting someone here
appropriately and allowing defense to know who is going to
testify and who is not.” Counsel moved to strike Bartneck‟s
testimony because he was “merely reading” from Henry‟s report.
The motion was denied.
On appeal, defendant contends that the trial court should
have granted his motion to strike Bartneck‟s testimony, because
defendant was “deprived of the right to cross-examine the
preparer” of the laboratory report. He claims Bartneck‟s

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testimony “was functionally a substitute for the [analyst‟s]
testimony on direct examination.” Defendant relies on Melendez-
Diaz, supra, 174 L.Ed.2d 314 to support his claim that he was
deprived of his right to confront evidence under the Sixth
Amendment.1 We agree.
Before Crawford v. Washington (2004) 541 U.S. 36
[158 L.Ed.2d 177] (Crawford), the United States Supreme Court
had held that an out-of-court statement could be used as
evidence if it was reliable, meaning it “had either to fall
within a „firmly rooted hearsay exception‟ or bear
„particularized guarantees of trustworthiness.‟ [Citation.]”
(People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25,
disapproved on other grounds by People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22.) After Crawford, the key is
whether the statement is “testimonial,” although that term was
not fully defined by the Crawford decision. (Roldan, at p. 711,
fn. 25.)
In Melendez-Diaz, a drug case, the prosecutor introduced
sworn affidavits from a laboratory attesting to the weight and
nature of the drugs. This procedure was authorized by a
1 Trial counsel never said “confrontation clause,” but a fair
reading of the record shows she preserved the claim now raised,
putting aside the fact that Melendez-Diaz was decided after
trial: she asked for a sidebar, made a standing foundational
objection to Bartneck‟s testimony, and moved to strike his
testimony because he was merely a “reader” and had no personal
knowledge of the testing. However, as stated, she did not
object to the introduction of Henry‟s report itself. Given the
trial court‟s rejection of counsel‟s objections to Bartneck‟s
testimony, an objection to the report would have been futile.

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Massachusetts statute. (Melendez-Diaz, supra, 174 L.Ed.2d at
p. 320.)
Melendez-Diaz held the affidavits were testimonial and the
procedure prevented any cross-examination of the analysts: “In
short, under our decision in Crawford the analysts‟ affidavits
were testimonial statements, and the analysts were „witnesses‟
for purposes of the Sixth Amendment. Absent a showing that the
analysts were unavailable to testify at trial and that
petitioner had a prior opportunity to cross-examine them,
petitioner was entitled to „“be confronted with”‟ the analysts
at trial.” (Melendez-Diaz, supra, 174 L.Ed.2d at pp. 321-322.)
In this case, defendant had no effective means to challenge
whether Henry, the laboratory analyst, correctly performed the
tests reflected by her written report. Bartneck‟s testimony, in
effect, was that Henry was a diligent and experienced analyst,
and that he believed she competently performed the tests her
report states she performed, with the results stated in the
report. Although Bartneck was cross-examined, that did not
enable defendant to confront Henry.
Accordingly, we conclude defendant‟s Sixth Amendment rights
were violated in this case.
In assessing the effect of this error, we must apply the
federal standard of prejudice. “Confrontation clause violations
are subject to federal harmless-error analysis under Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct.
824]. [Citation.]” (People v. Geier (2007) 41 Cal.4th 555,
608.) “The harmless error inquiry asks: „Is it clear beyond a

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reasonable doubt that a rational jury would have found the
defendant guilty absent the error?‟ [Citation.]” (Ibid.)
Although Officer Gullion testified the substance found in
defendant‟s room appeared to be methamphetamine, he did not
perform any chemical testing; he relied on his training and
experience in reaching that opinion. It is likely the jury gave
substantially more weight to the scientific testing performed by
Henry and described by Bartneck. We cannot say it is clear
beyond a reasonable doubt that the jury would have convicted
defendant in the absence of the error. Accordingly, we must
reverse the conviction for possession of methamphetamine.2
II. Prosecutorial Misconduct: Reasonable Doubt
The trial court instructed the jury on reasonable doubt
before testimony was taken and at the end of the trial. The
jury was also instructed to follow the law as given by the trial
court, not the attorneys.
During argument, defense counsel emphasized the
prosecutor‟s burden of proof beyond a reasonable doubt. In
part, defense counsel distinguished the criminal standard of
proof from the civil standards and, to illustrate her view of
2 We are aware that on December 2, 2009, the California
Supreme Court granted review in several cases discussing the
scope of Melendez-Diaz. (People v. Gutierrez (2009)
177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620;
People v. Lopez (2009) 177 Cal.App.4th 202, review granted
Dec. 2, 2009, S177046; People v. Rutterschmidt (2009)
176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213;
People v. Dungo (2009) 176 Cal.App.4th 1388, review granted
Dec. 2, 2009, S176886.)

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“abiding conviction,” gave the example of the certainty needed
about how one‟s parachute was packed before one jumps out of an
airplane.
In rebuttal, the prosecutor read the part of the reasonable
doubt instruction stating that not every possible doubt was a
reasonable doubt. As the prosecutor continued with closing
argument, the following took place:
“[Prosecutor:] As the Judge stated, each of the elements
must be proved beyond a reasonable doubt. That was one of the
instructions that both of us went over. The law tells you what
reasonable doubt is not. It‟s not absolute. It‟s not imaginary
doubt and it‟s not based on speculation. But we know what
reasonable doubt is. It‟s something that is used in courtrooms
every day and it‟s not an absolute—it‟s not a difficult
standard. It‟s based on the evidence. And as I stated before,
it‟s not based on speculation or any other improper source.
It‟s reasonable.
“[Defense Counsel]: Objection. Misstates the standard and
lowers the burden.
“The Court: Ms. Price, your objection is overruled. The
jury has the instructions which define the standard.”
On appeal, defendant contends that by stating the standard
was not “a difficult” one, but one “used in courtrooms every
day” and “reasonable,” the prosecutor diluted the reasonable
doubt standard and thereby committed misconduct.
We disagree. As stated in rejecting a similar claim:

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“Defense counsel‟s argument and the court‟s jury
instructions unambiguously communicated to the jury that the
prosecution had the burden of proving every element of the case
beyond a reasonable doubt. The record does not demonstrate that
the prosecution employed deceptive or reprehensible methods to
persuade the jury, and, in light of the entire record, there was
no reasonable likelihood that the jury erroneously construed the
prosecution‟s burden of proof.” (People v. Samayoa (1997)
15 Cal.4th 795, 842.)
In evaluating the prosecutor‟s remarks, “we must view the
statements in the context of the argument as a whole.”
(People v. Dennis (1998) 17 Cal.4th 468, 522.) The prosecutor‟s
comments, in context, did not dilute the standard of proof. The
prosecutor referenced the instruction that had been given by the
trial court and correctly argued that the standard was “not
absolute. It‟s not imaginary doubt and it‟s not based on
speculation.” Although in the abstract the reference to the
standard “used in courtrooms every day” could seem to blend the
civil and criminal standards, in context that is not how the
argument would have been understood by the jury. Nor, in
context, do we believe the jury would interpret the remark that
the standard was not “difficult” but was “reasonable” to mean
that it was not important for the jury to hew closely to the
standard as defined by the trial court.
Moreover, even if we agreed the prosecutor overstepped the
bounds of permissible argument, such error did not cause any
prejudice. The trial court instructed the jury to follow the

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law as given by the trial court, not the attorneys, and the
prosecutor referred to the reasonable doubt instruction given by
the trial court before making the challenged remarks. If the
jury interpreted the prosecutor‟s remarks as describing a lower
standard of proof, there is no reason to believe it would have
followed that standard rather than the standard given by the
trial court. We presume the jury would follow the trial court‟s
instructions, including the instruction to disregard those
statements of the law given by attorneys that conflicted with
the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852
(Sanchez).)
Finally, although defendant points to the evidence that
another person was on the premises, there was no dispute that
defendant admitted he possessed the gun found in the drawer of
his bedroom. Given this admission, along with the other
evidence, the brief comments by the prosecutor regarding the
standard of proof, if improper, would not have changed the
jury‟s assessment of the evidence as to the gun count. They
were harmless beyond a reasonable doubt. (See People v. Bolton
(1979) 23 Cal.3d 208, 214-215; People v. Bryden (1998)
63 Cal.App.4th 159, 182-183.)
III. Judicial Misconduct: Questioning Witnesses
During Officer Gullion‟s testimony, the trial court
sometimes interrupted to ask questions, sometimes two or more in
a series. The trial court asked other witnesses a number of
questions. These were separate from questions asked by the
court but submitted by jurors.

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On appeal, defendant contends that by asking so many
questions, the trial court became the People‟s advocate,
depriving him of the right to a neutral judge.
This contention has been forfeited by lack of objection.
There were three objections to specific questions asked by
the trial court. One was a foundational objection to a question
by the trial court about what kinds of substances could be
smoked in the devices found in defendant‟s room. One was an
unspecified objection to a question by the trial court about the
significance of the size of the smaller baggies. The third was
a foundational objection to a question about whether the residue
on the baggies found in defendant‟s pocket was on the inside or
outside of the baggies.
But defense counsel never objected that the trial court was
asking too many questions or was asking them in a biased manner.
The California Supreme Court has held that the lack of
objection forfeits claims of judicial misconduct: “It is
settled that a judge‟s examination of a witness may not be
assigned as error on appeal where no objection was made when the
questioning occurred.” (People v. Corrigan (1957) 48 Cal.2d
551, 556; see People v. Hines (1997) 15 Cal.4th 997, 1040-1041;
People v. Wright (1990) 52 Cal.3d 367, 411.) We have repeatedly
applied this rule to claims of improper questioning by judges.
(People v. Raviart (2001) 93 Cal.App.4th 258, 269 (Raviart);
People v. Pierce (1970) 11 Cal.App.3d 313, 321-322 (Pierce);
People v. Flores (1952) 113 Cal.App.2d 813, 817 (Flores).)

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Accordingly, the claim of judicial misconduct has been
forfeited for lack of an objection at trial.
Defendant relies on two older appellate court decisions
that addressed claims of judicial bias through excessive or
inappropriate questioning. In one, the appellate court quoted
the trial court‟s extraordinary questioning at great length,
supporting the court‟s view that the lack of objection was
excused because an objection would have been futile. (People v.
Robinson (1960) 179 Cal.App.2d 624, 637-638, 639-657
(Robinson).) But in that case, the judge‟s questions were
partisan, “of a nature which tended to develop the case of the
People.” (Id. at p. 633.) Nothing in the record before this
court suggests partisanship or that an objection would have been
futile. In the other case relied on by defendant, People v.
Campbell (1958) 162 Cal.App.2d 776 (Campbell), the issue of
preservation of claims of error was not discussed. Cases are
not authority for propositions not considered. (People v.
Alvarez (2002) 27 Cal.4th 1161, 1176; People v. Watkins (2009)
170 Cal.App.4th 1403, 1409.) Accordingly, the lack of objection
forfeits the claim of error. (Raviart, supra, 93 Cal.App.4th at
p. 269.)
Moreover, even if we excused the lack of objection, we
would reject the contention of error. As we have said before:
“The trial judge has the duty to control all proceedings during
the trial with a view to the expeditious and effective
ascertainment of the truth regarding the matters involved.
(Pen. Code, § 1044.) To this end he may examine witnesses to

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elicit or clarify testimony. [Citations.] The mere fact that a
judge examines a witness at some length does not establish
misconduct, nor does the fact that the testimony elicited by the
judge‟s questions would probably have been elicited by counsel.”
(Pierce, supra, 11 Cal.App.3d at p. 321; see Raviart, supra,
93 Cal.App.4th at p. 270; see also People v. Fudge (1994)
7 Cal.4th 1075, 1108.)
On the other hand, “[u]nwarranted interruptions of counsel
that interfere with a properly conducted examination, excessive
questioning that virtually takes the witness out of counsel‟s
hands, or a display of partisanship are improper.” (5 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 544.)
“The question for us to decide is whether the judge „officiously
and unnecessarily usurp[ed] the duties of the prosecutor . . .
and in so doing create[d] the impression that he [was] allying
himself with the prosecution[.]‟” (People v. Clark (1992)
3 Cal.4th 41, 143, quoting Campbell, supra, 162 Cal.App.2d 776;
see People v. Cummings (1993) 4 Cal.4th 1233, 1305.)
Whether a particular question or series of questions by a
judge goes too far is difficult to assess on a cold record
because we cannot determine if the tone of any particular
question was other than neutral, and because the transcript does
not indicate the length of pauses by the attorneys in between
the answer to one question and the asking of another. (Raviart,
supra, 93 Cal.App.4th at p. 272 [trial court is “„in a better
position than the reviewing court to know when the circumstances
warrant or require the interrogation of witnesses from the

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bench‟”].) In his reply brief, defendant asserts that “nothing
in the record suggests that the prosecution was acting in
anything other than an expedited manner or leaving any
ambiguities unresolved.” But it is defendant‟s burden, as the
appellant, to show error, and we cannot assume the trial court
intervened too quickly or inappropriately.
And even if this trial judge asked too many questions, that
does not mean he lost his neutrality. Nothing about the content
of the questions shows a lack of neutrality. Defendant faults
the trial court in two specific instances, for “all but [laying]
the foundation for the exhibits and the presumptive field test
for the prosecution[,]” and for asking Officer Gullion why he
booked the bags containing the smaller baggies into evidence.
Defendant asserts this testimony was “highly” prejudicial. We
need not address these examples because of our reversal of the
drug possession count. Other than those two examples, there is
no claim the trial court asked improper questions, “and this
being so, it is difficult to understand how the interrogation by
the court could have constituted prejudicial error.” (Flores,
supra, 113 Cal.App.2d at pp. 817-818; see People v. Golsh (1923)
63 Cal.App. 609, 615; People v. Hunt (1915) 26 Cal.App. 514,
517.)
Finally, we observe that the trial court instructed the
jury with CALCRIM No. 3550, which in part provides: “Do not
take anything I said or did during the trial as an indication of
what I think about the facts, the witnesses, or what your
verdict should be.” We presume the jury followed this

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instruction and would consider the content of the answers to the
trial court‟s questions and not the fact that the questions were
asked by the trial court in assessing the evidence. (Sanchez,
supra, 26 Cal.4th at p. 852.)
Accordingly, we reject the claim of judicial misconduct.3
IV. Instructional Error: Circumstantial Evidence
Defense counsel reviewed the proposed instructions, had not
asked for any that were refused, and stated she was “happy with
everything we discussed in chambers.” She referred to the
circumstantial evidence instructions in argument, CALCRIM
Nos. 223 and 225.
CALCRIM No. 223 defines circumstantial evidence.
CALCRIM No. 225, as given, cautions the jury about
circumstantial evidence used to prove a mental state: “Before
you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant guilty has been proved, you must
3 Although we have rejected the claim of error, both
procedurally and on the merits, we observe that some of the
judicial interruptions, although not harmful, were not
necessary. It is best to allow each counsel to develop her or
his case, except when intervention is necessary, and then to
intervene at the least intrusive time: “Ordinarily the proper
course, and the one generally pursued, is to allow the
examination by counsel—direct, cross, redirect and recross—to
conclude, and then if anything in the judgment of the trial
court remains obscure, which may be material for the jury to
know, and it seems desirable that an examination of the witness
should be further pressed, then, with perfect propriety, the
trial court may, and, indeed, should, intervene so that the ends
of justice may be subserved. This, however, should be done with
care[.]” (Robinson, supra, 179 Cal.App.2d at p. 639.)

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be convinced that the People have proved each fact essential to
that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to
conclude that the defendant had the required intent or mental
state, you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant
had the required intent or mental state. If you can draw two or
more reasonable conclusions from the circumstantial evidence,
and one of those reasonable conclusions supports a finding that
the defendant did have the required intent or mental state and
another reasonable conclusion supports a finding that the
defendant did not, you must conclude that the required intent or
mental state was not proved by the circumstantial evidence.
However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are
unreasonable.”
On appeal, defendant contends the trial court should have
instructed with CALCRIM No. 224 instead of CALCRIM No. 225. The
difference is that CALCRIM No. 224 is broader, and in its second
paragraph, CALCRIM No. 224 cautions the jury about the use of
circumstantial evidence to prove any fact, not just a mental
state. It would have provided, in part: “Also, before you may
rely on circumstantial evidence to find the defendant guilty,
you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant
is guilty. If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those reasonable

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conclusions points to innocence and another to guilt, you must
accept the one that points to innocence. However, when
considering circumstantial evidence, you must accept only
reasonable conclusions and reject any that are unreasonable.”
Putting aside defense counsel‟s express statement that she
was content with the instructions, we reject defendant‟s
contention of prejudicial error. The California Supreme Court,
discussing the analogous CALJIC instruction, stated as follows:
“We have held that the court must give such an instruction on
its own motion when the proof of guilt rests substantially on
circumstantial evidence. [Citations.] But the instruction need
not be given when the circumstantial evidence merely
corroborates other evidence [citations], because in such cases
the instruction may confuse the jury regarding the weight to
which other evidence is entitled[.]” (People v. Yeoman (2003)
31 Cal.4th 93, 142.)
The gun charge was proven by direct evidence: the gun was
found in defendant‟s room and he admitted possessing it. There
was no basis to give CALCRIM No. 224 in connection with that
charge.
We need not consider whether a different circumstantial
evidence instruction should have been given as to the drug
count, because we reverse that count for another reason.
V. Attorney Fees
At sentencing, defense counsel asserted defendant was
indigent. The probation report supported this view, as
defendant‟s only employment was as his mother‟s caregiver, for

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which he was paid $200 per month. The report also states: “If
there are reimbursable costs to the County in the disposition of
this case for appointed counsel, presentence investigation,
probation supervision or incarceration, it is recommended the
defendant be ordered to report to the Department of Revenue
Recovery for a financial evaluation and recommendation of
ability to pay said costs.”
One of the formal probation conditions, as recommended by
the probation report, item No. 9, is as follows: “Defendant
[shall] pay through the Court‟s installment process the amount
determined and report to the Department of Revenue Recovery
within [five] (5) days of sentencing or within five (5) days of
release from custody for an evaluation and recommendation of
ability to pay and for development of a payment schedule for
Court-ordered costs, fees, fines and restitution[.]”
An apparently garbled passage of the reporter‟s transcript
shows the trial court stating: “I am required to order that you
pay an attorney fee to the county in the amount of $2,440,
that‟s to be a condition on your ability to pay the fees. [¶]
You are required to cooperate with the Division of Revenue
Recovery in the determination of your ability to pay.”
The relevant statute provides, in part: “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,
or upon the withdrawal of the public defender or appointed
private counsel, the court may, after notice and a hearing, make

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a determination of the present ability of the defendant to pay
all or a portion of the cost thereof. The court may, in its
discretion, hold one such additional hearing within six months
of the conclusion of the criminal proceedings. The court may,
in its discretion, order the defendant to appear before a county
officer designated by the court to make an inquiry into the
ability of the defendant to pay all or a portion of the legal
assistance provided.” (Pen. Code, § 987.8, subd. (b).)
Defendant contends the trial court did not hold a noticed
hearing. But the probation report gave notice of the intended
procedure, and the statute gave the trial court discretion to
order defendant to cooperate with the relevant county department
to determine his ability to pay all or part of the attorney cost
determined by the court. That procedure comports with law.
(Cf. People v. Flores (2003) 30 Cal.4th 1059, 1062 [simply
ordering reimbursement “„subject to his ability to pay‟” does
not comply with statute].) This procedure does not deprive
defendant of the right to a hearing; it defers the matter until
the county department assesses defendant‟s ability to pay, which
he can then contest. (See People v. Spurlock (1980)
112 Cal.App.3d 323, 328; Couzens & Bigelow, Basic Elements of
Felony Sentencing (Barrister Press 2009) p. 171 [trial court
“May refer defendant to county financial evaluation officer for
recommendation” on ability to pay].)
However, the written probation order states: “Defendant
shall pay a $2,000.00 attorney fee. Payable through the Court‟s
installments [sic] process.” This does not conform to the trial

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court‟s oral pronouncement. We accept the reporter‟s transcript
of what the trial court said over the probation order prepared
by the court clerk. (See People v. Farell (2002) 28 Cal.4th
381, 384, fn. 2.) The order states the wrong amount and also
fails to capture the idea that defendant would have an
opportunity for a determination of his ability to pay. Further,
the probation order does not clearly show that payment of fees
was not a condition of probation. (See People v. Bradus (2007)
149 Cal.App.4th 636, 641.) On remand, the trial court should
clarify the probation order regarding the attorney fees.
VI. Narcotics Fees
After imposing the minimum $200 restitution fine, the trial
court imposed “other fines and fees” stated in the probation
report. Among these were fees of $50 and $150 for Health and
Safety Code sections 11372.5 and 11372.7, plus penalties and
assessments on those amounts. The probation order states those
amounts.
Those fees are authorized when a defendant is convicted of
specified narcotics offenses. (See Health & Saf. Code,
§§ 11372.5, subd. (a), 11372.7, subd. (a).) We reverse
defendant‟s drug count, and therefore these fees are no longer
authorized.
However, we note the Attorney General accepts the view that
it is not permissible to make payment of these amounts
conditions of probation. The probation order is unclear on this
point and appears to include these amounts among the probation

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conditions. Therefore, if defendant is reconvicted of the drug
count, any ensuing probation report should clarify this point.
DISPOSITION
The conviction for possession of methamphetamine is
reversed. The conviction for possession of a firearm is
affirmed. The probation order is vacated with directions to the
trial court to impose a new order consistent with this opinion.
RAYE , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.

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