P. v. Holloway
Filed 7/1/13 P. v. Holloway CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE HOLLOWAY, Defendant and Appellant. | D062371 (Super. Ct. No. SCD240302) |
APPEAL from a judgment of the Superior
Court of
County, Eugenia A. Eyherabide, Judge. Affirmed with directions.
Barbara A. Smith, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, A. Natasha Cortina and Kimberley A. Donohue, Deputy Attorneys
General, for Plaintiff and Respondent.
Dwayne Holloway pled guilty to a
violation of Health and Safety Code section 11350, subdivision (a) for
substance. Pursuant to the plea, the
court sentenced Holloway to 365 days in local custody, followed by one year in
a residential drug treatment facility
and three years of formal probation, and imposed various fines, fees and
assessments (collectively, fines) that it stayed pending successful completion
of probation.
Holloway on appeal contends the
matter should be remanded for resentencing because the court erred at the
failed to itemize all the fines orally imposed on him and to inquire whether he
had the ability to pay the AIDS education fine and the drug program fee, and
because the court's order granting formal probation incorrectly stated the
total amount of fines it imposed.
As we explain, we reject Holloway's
request for resentencing because we conclude the court did not err when it
relied on the probation report's itemization of recommended fines in imposing
the same on him and when it tacitly found Holloway had the ability to pay the
AIDS education fine and the drug program fee.
However, we agree with Holloway that the order granting formal probation
should be modified to state correctly the total amount of fines orally imposed
by the court.
BRIEF BACKGROUND
On an evening in April 2012,
undercover police officers conducted a sting operation at an intersection in
downtown San Diego. During that operation, Holloway spoke with an
undercover officer and directed the officer to follow him. Together they walked to a street corner where
Holloway spoke with another individual who, at Holloway's direction, agreed to
sell the officer $40 of cocaine base.
After the officer purchased the cocaine base, he handed Holloway a piece
as Holloway requested. Officers then
arrested Holloway. The substance
purchased by the officer subsequently was tested and found to be cocaine
base.
At sentencing, Holloway requested
the court waive local jail time, formal probation and all fines recommended in
the probation report based on his alleged inability to pay. After hearing argument by counsel, the court
sentenced Holloway and, as relevant in this appeal, imposed the following
fines, fees and assessments: an $800 main fine; a $40 court operations
assessment (Pen. Code, § 1465.8); a $30 criminal conviction assessment
(Gov. Code, § 70373); a $154 criminal justice administration fee (Gov.
Code, § 29550.1); a $570 drug program fee (Health & Saf. Code,
§ 11372.7); a $190 lab analysis fee (Health & Saf. Code,
§ 11372.5); a $266 AIDS education fine; a $240 restitution fine (Pen.
Code, § 1202.4, subd. (b)); and a $240 probation revocation restitution
fine (Pen. Code, § 1202.44). However,
the court stayed all such fines pending successful completion of
probation.
DISCUSSION
A.
Imposition of Fines
Holloway contends the court erred
when it failed to "itemize" the fines orally imposed at his
sentencing.
1. Brief
Additional Background
After
Holloway pled guilty, the San Diego County Probation Department prepared a
"Probation Officer's Report" (probation report) and provided it to
the parties and the court in advance of the sentencing hearing. The probation report recommended Holloway be
sentenced to three years in state prison and recommended the court impose a
restitution fine of $720; a probation revocation restitution fine of $720; a
court security fee of $40; an immediate critical needs account fee of $30; a
criminal justice administration fee of $154; a drug program fee of $570,
including penalty assessment; and a lab analysis fee of $190, including penalty
assessment. A proposed order granting
formal probation was also submitted before sentencing.
The record shows that at sentencing,
Holloway among other requests asked the court not to impose any fines because
he allegedly was unable to pay them.
After hearing argument of counsel and considering the probation report
and the plea agreement, as relevant here, the court stated: "In reference to the fines and fees as
noted under two, 2-A [of the order granting formal probation ] will be reduced
to [$]400 -- excuse me $800. The court
will impose all fines and fees; however, the court will stay all fines and fees
pending successful completion of probation."
Section 2 of the order granting formal probation states a total of
$9,224 in fines was imposed on Holloway.
2.
The oral pronouncement of judgment controls
over any discrepancy with the minutes or the abstract of judgment. (People v. Delgado (2008) 43 Cal.4th
1059, 1070.) A trial court need not
specifically itemize fines and fees when orally pronouncing judgment,
however. (See People v. Sharret
(2011) 191 Cal.App.4th 859, 864 [noting it was an "acceptable
practice" for the trial court not to specify all penalties, but rather
merely to list two of them and add in its oral pronouncement, "'plus
penalty assessment,'" because it was customary for trial courts to impose
the "penalties and surcharge discussed above by a shorthand reference to
'penalty assessments'"].)
Here, the probation report was provided to the trial court and
Holloway in advance of the sentencing hearing.
It recommended various fines to be imposed at sentencing. The record shows that Holloway was aware of
the proposed fines because at sentencing he expressly asked the court to waive
them due to his alleged inability to pay.
The record also shows that the court rejected his waiver request and, in
reliance on the probation report and the order granting formal probation,
orally imposed the fines therein recommended with certain exceptions, including
reducing the restitution and probation revocation restitution fines and the
main fine. The court then signed the
order granting formal probation.
We conclude on this record it was an "acceptable practice"
for the trial court to rely on the itemized list of proposed fines in the
probation report and in the proposed order granting formal probation when
orally imposing such on Holloway in connection with its pronouncement of
judgment. (Cf. People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [noting it
was error to include in the minutes of the defendant's sentencing and in the
abstract of judgment various matters, including a number of fines, that were
the presence of the defendant].)
B.
Alternatively, Holloway contends he should be
resentenced because the trial court failed to make a finding on the record of
his ability to pay the AIDS education fine and the drug program fee imposed by
the court.
A trial court's determination of a defendant's ability to pay fines,
fees and/or assessments need not be express but may be implied through the
content and conduct of the hearings.
(See People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1517; People
v. Ramirez (1995) 39 Cal.App.4th 1369, 1377.) In determining whether a defendant has the
ability to pay such items, a trial court may consider the defendant's future
ability to pay, including his or her ability to earn wages while in
prison. (People v. Ramirez,
supra, at p. 1377.) "Where the defendant is capable of
supporting him[- or her-]self with legitimate employment, the trial court may
also consider his [or her] ability 'to find and maintain productive employment
once his [or her] sentence is completed.'
[Citation.]" (
Here, the probation report notes that Holloway graduated from high
school and completed six years of college, including receiving an associate's
degree from the College of the Desert in Palm Springs, California, earning a
business certificate from Coastline College and starting coursework at the
Oregon Institute of Technology.
Given his education, the fact the trial court reduced his main fine
from $8,000 to $800, reduced his restitution and probation revocation
restitution fines from $720 to $240, respectively, and stayed all fines pending
Holloway's successful completion of formal probation and ordered him to pay
only $25 per month toward such fines once he completed probation, and given the
requirement of his probation that Holloway must "[s]eek and maintain
full-time employment, schooling or a full-time combination thereof" as
directed by his probation officer, we conclude the court's implied finding of
his ability to pay the $266 AIDS education fine and the $570 drug program fee
is supported by sufficient evidence in the record.
C. Modification of the Order
Holloway contends the amount of total fines in section 2 of the order
granting formal probation must be corrected to reflect the fines orally imposed
at his sentencing. The People agree.
The individual fines originally included in the proposed order
granting formal probation totaled $9,730, as follows: $8,000 (proposed main
fine); $40 (court operations assessment); $30 (criminal conviction assessment);
$154 (criminal justice administration fee); $570 (drug program fee); $190 (lab
analysis fee); $266 (AIDS education fine); $240 (restitution fine); and $240
(probation revocation restitution fine).
These sums totaled $9,730.
However, as noted ante,
its discretion and orally imposed a main fine of $800. The order granting formal probation itself
shows this change but, as both parties note, section 2 of the order granting
formal probation was not modified accordingly to reflect this reduction of the
main fine. We therefore correct section
2 of the order granting formal probation to show $2,530 as the total amount of
fines imposed at Holloway's sentencing, which sum we note, also equals the
fines, fees and assessments set forth in the minutes.
DISPOSITION
The trial court is directed to modify section 2 of the order granting
formal probation to show $2,530 as the "total due" for the fines it
orally imposed at Holloway's sentencing.
The judgment of conviction is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL,
P. J.
McINTYRE,
J.
name="_ftn1" title="">[1] In light of our decision, we conclude
it is unnecessary to determine whether Holloway in this proceeding forfeited
his objection to the imposition of the AIDS education fine and the drug program
fee. We note, however, our high court
recently held in People v. McCullough (2013)
56 Cal.4th 589 that a defendant who failed to object to a $270.17 booking fee
when imposed forfeited that issue on review.
name="_ftn2" title="">[2] The $2,530 figure is the difference
between $9,730, on the one hand, and $7,200 ($8,000, the proposed main fine,
less $800, the fine actually imposed), on the other hand.
