P. v. Johnson

Filed 9/25/08 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Ondray Demont Johnson entered a guilty plea to one count of false personation. The trial court initially sentenced him to probation, on condition he serve a term in county jail, and imposed fines. While appellant was serving his jail term, he committed new crimes and was convicted in a separate case. At sentencing, the trial court resentenced appellant in the instant case and imposed fines. On appeal, appellant contends (1) the trial court erroneously applied a surcharge and penalty assessment to the restitution fine imposed during the initial sentencing hearing; and (2) the trial court erroneously converted previously imposed fines and fees to a civil money judgment during resentencing. We shall affirm the conviction and vacate the money judgment.

BACKGROUND

On October 11, 2005, appellant entered a guilty plea to one count of violating Penal Code^[1]section 529 by personating his brother.

The initial sentencing hearing took place on November 8, 2005. In the reporters transcript, the trial court stated in relevant part, Youre to pay a penal fine of $600, a 20 percent state surcharge of $120, a penalty assessment of $1,380, and pay restitution to the victim Dartanyun Rabon in an amount which the Probation Department may determine subject to the right of a hearing before the Court if the amount is disputed. [] Youre also required to pay a $20 court security fee and a $600 restitution fine, and subject to in the event that your probation is revoked.

The minute order from the November 8, 2005, sentencing hearing states that appellant was ordered to pay an unspecified fine in the amount of $600 and a $120 state surcharge plus penalty assessment of $1380. The minute order further states that appellant was ordered to pay a $600 restitution fine pursuant to section 1202.4, subdivision (b), a $600 restitution fine pursuant to section 1202.44, a $20 court security fee, and victim restitution.

During appellants resentencing on May 15, 2007, the trial court stated, Hes required to pay $600 State Restitution Fund per 1202.4; $600 State Restitution Fund per Section 1202.44, that fine previously stayed is now ordered; $600 State Restitution Fund per section 1202.45, that fine being suspended unless the defendants parole is revoked; $20 per Section 1465.8, as previously ordered, with nine cents credit. [] [] The Court is going to convert all other fines and fees in that case to a civil judgment.

In the abstract of judgment, the amounts are listed this way: FINANCIAL OBLIGATIONS (plus any applicable penalty assessments): [] [] Case B: $600 per PC 1202.4(b) forthwith per PC 2085.5; $600 per PC 1202.45 suspended unless parole is revoked. [] $600 per PC 1202.44 is now due, probation having been revoked. The abstract of judgment also reflects that appellant was ordered to pay a $60 court security fee, which included the $20 fee imposed in the instant case and the $40 fee imposed in appellants other criminal case. Neither the abstract of judgment nor the minute order of the May 15, 2007, sentencing hearing reflects the trial courts oral pronouncement that it was going to order all other fines and fees to be converted into a civil money judgment.

DISCUSSION

Appellant first challenges the trial courts imposition of a $120 state surcharge and a $1,380 penalty assessment at the initial sentencing hearing on November 8, 2005. According to appellant, the $600 penal fine the trial court orally imposed, and to which it applied the surcharge and penalty assessment, was actually a restitution fine under section 1202.4, subdivision (b). Appellant points out that the section 1202.4, subdivision (b) restitution fine is expressly exempted from penalty assessments and the state surcharge. Thus, subdivision (e) of section 1202.4, provides: The restitution fine shall not be subject to penalty assessments authorized in Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, or the state surcharge authorized in Section 1465.7.

Respondent disagrees that the penal fine orally imposed by the trial court was a section 1202.4, subdivision (b) fine, and cites the minute order showing a separate fine was imposed under section 1202.4, subdivision (b). However, as appellant points out in his reply brief, the minute order is inconsistent with the trial courts oral pronouncement because the court mentioned only two $600 fines, whereas the minute order lists three specific $600 restitution fines. One of the fines specifically mentioned in the courts oral pronouncement was a probation revocation restitution fine ( 1202.44). Because section 1202.44 provides for a mandatory probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4 ( 1202.44, italics added), appellant urges us to infer that, despite the trial courts reference to a penal fine, the other $600 fine the court mentioned in the recorders transcript must have been a section 1202.4, subdivision (b) restitution fine, which is mandatory unless the court finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. ( 1202.4, subd. (b).) Alternatively, appellant requests this court to remand the matter back to the trial court for clarification as to what fines it was imposing during the initial sentencing hearing.

Despite the time the parties have devoted to the first issue on appeal, it appears to us that the trial courts original order concerning fines was superseded by its subsequent order at resentencing. To the extent it is unclear what fines the court was imposing during the original sentencing hearing or the statutory basis therefor, we believe the court provided adequate clarification of the fines it was ordering at resentencing. The court specifically identified the three separate $600 restitution fines it was imposing and their statutory bases. However, the court did not specifically identify any additional fine, surcharge, or penalty on the record at resentencing. To the extent the court was attempting to incorporate into its sentencing order other fines and fees previously ordered by converting them into a civil money judgment, we agree with appellant, and respondent concedes, the court had no authority to do this and the money judgment must be vacated. (People v. Hart (1998) 65 Cal.App.4th 902, 904-906.)

Furthermore, respondent cites no authority for the proposition that a state surcharge and penalty assessment imposed at an earlier sentencing hearing but not specifically imposed at resentencing is enforceable against a defendant. We thus conclude the only fines and fees appellant now faces are those the trial court specifically identified during appellants resentencing, and which are accurately reflected in the abstract of judgment and minute order of the May 15, 2007, sentencing hearing. Since the abstract and minute order do not include any mention of the money judgment which was erroneously imposed by the trial court in its oral pronouncement, it is unnecessary to order amendment of those records.

DISPOSITION

The money judgment orally entered on May 15, 2007, is vacated. In all other respects, the judgment is affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

GOMES, Acting P.J.

_____________________

DAWSON, J.

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^[1] Further statutory references are to the Penal Code unless otherwise specified.