P. v. Jones
Filed 12/17/12 P. v. Jones CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DEBRA MARIE JONES,
Defendant and Appellant.
D061606
(Super. Ct. Nos. SCD224454,
SCD236717)
APPEALS from judgments of the
Superior Court
of
County, Eugenia A. Eyherabide, Judge. Affirmed as modified in part, reversed in
part, and remanded.
Debra Marie
Jones pled guilty to selling cocaine base in 2009 and was granted
probation. In 2011, while on probation,
she again sold cocaine base, was charged and pled guilty. After the second offense, the trial court
revoked probation; sentenced Jones to county jail for concurrent terms of three
years each; and ordered her to pay various fines, fees and assessments. In this appeal, Jones challenges several of
the monetary impositions. We modify the judgments and affirm in part as
to the amounts of certain fees and assessments, and reverse the judgments in
part and remand for resentencing regarding the imposition of certain other
fines and fees.
I.
BACKGROUND
In case No. SCD224454,
base on December 10, 2009, in violation of Health and Safety Code section
11352, subdivision (a) (the 2009 case).
Jones pled guilty, and the court suspended imposition of sentence for
three years and granted her formal probation.
As conditions of probation, Jones was required to serve 365 days in
county jail (with credit for time served), to obey all laws, and not to use or
possess any controlled substance without a valid prescription. When the court granted probation, it also
ordered Jones to pay various fines, fees and assessments, including a $200
restitution fine, a $570 drug program fee and a $190 criminal laboratory
analysis fee.
The court
revoked Jones's probation after she was charged in case No. SCD236717 with
selling cocaine base on September 22, 2011, in violation of Health and Safety
Code section 11352, subdivision (a) (the 2011 case). Jones again pled guilty.
At a combined
cases, the court sentenced Jones to the low term of three years in county jail
in each case. The court ordered her to
serve the jail terms concurrently and awarded credit for time served in each
case.
The court
also ordered Jones to pay the following fees in the 2011 case: (1) a court security fee of $40;
(2) an immediate critical needs account fee of $40; (3) a criminal
justice administrative fee of $154; (4) a drug program fee of $570,
including penalty assessments; and (5) a laboratory analysis fee of $190,
including penalty assessments.
In the 2009 case, the court ordered
Jones to pay a restitution fine, but did not specify an amount. The minute orders regarding sentencing in the
2009 and 2011 cases both specify a restitution fine of $600.
Jones filed
sentences imposed in both cases.
II.
DISCUSSION
Jones
challenges the amount of the restitution fine, criminal laboratory analysis fee
and drug program fee imposed in the 2011 case.
She also requests correction of the amounts of court facilities
assessments and court operations assessments listed on the abstract of
judgment. We shall address these issues
in turn.
A. The
Minute Orders Directing Jones to Pay Two $600 Restitution Fines Are Invalid
Jones
contends the minute order in the 2011 case assessing a $600 restitution fine is
invalid because the court did not set the amount of the fine when it pronounced
judgment at the sentencing hearing. She
asks us to impose the minimum amount for the fine or, alternatively, to remand
the case to allow the trial court to set the amount. The People contend the $600 restitution fine
should be stricken from the minute order and ask us to remand the matter for
determination of an appropriate restitution fine. We agree the $600 restitution fine reflected
in the minutes of the 2011 case must be stricken, and the matter remanded for
determination of an appropriate restitution fine in that case. We also strike the $600 restitution fine
reflected in the minutes of the 2009 case, even though Jones does not
specifically challenge that fine, because, as we shall explain, it was
unauthorized.
Having
imposed a restitution fine when it granted probation in the 2009 case, the
trial court had no authority to impose an additional restitution fine when it
revoked probation. A court must impose a
restitution fine whenever a defendant is convicted of a crime "unless it
finds compelling and extraordinary reasons for not doing so, and states those
reasons on the record." (Pen. Code,
§ 1202.4, subd. (b).) When a
defendant is granted probation, "the court shall make the payment of
restitution fines and orders imposed pursuant to this section a condition of
probation." (
subd. (m).) The event triggering
imposition of a restitution fine is conviction, and a fine imposed when a
defendant is convicted and granted probation survives a later revocation of
probation. (People v. Urke (2011) 197 Cal.App.4th 766, 779 (
imposed at the time probation is revoked is unauthorized and must be stricken
from the judgment." (
Here, when
the court granted Jones probation in the 2009 case, it ordered her to pay a
restitution fine of $200. After Jones
reoffended and the court revoked probation, it ordered her to pay another
restitution fine in that case: "In
case ending 454, probation having been previously
revoked, . . . [y]ou're to pay restitution per [Penal Code
section] 1202.4[, subdivision] (b) to be paid as provided in Penal
Code section 2085.5." The court did
not specify an amount at the sentencing hearing, but the clerk entered $600
(the amount recommended in the probation report) in the sentencing
minutes. The imposition of a second
restitution fine in any amount was improper, however, because the first
restitution fine survived the probation revocation. (Urke,
supra, 197 Cal.App.4th at
p. 779; Arata,
Thus, although Jones has not specifically challenged the $600 fine
contained in the minutes of the 2009 case, we strike that fine as
unauthorized. (See, e.g.,
852 (Smith) [an unauthorized sentence
is "reviewable 'regardless of whether an objection or argument was raised
in the trial and/or reviewing court' "]; People v.
Dotson (1997) 16 Cal.4th 547, 554, fn. 6 (Dotson) [an unauthorized sentence "is subject to judicial
correction whenever the error comes to the attention of the reviewing
court"].)
The $600
restitution fine reflected in the minutes of the 2011 case also must be stricken,
because the court did not impose a restitution fine in that or any other amount
when it pronounced judgment. The
rendition of judgment in felony cases must be done by oral pronouncement in the
defendant's presence and must include any fines that are imposed. (Pen. Code, § 1193, subd. (a),
1445; People v. Hong (1998) 64
Cal.App.4th 1071, 1076-1078.) As
previously noted, the court generally must impose a restitution fine in every
case in which a defendant is convicted of a crime. (Pen. Code, § 1202.4,
subd. (b).) If the court does not
impose a restitution fine at the sentencing hearing, "[t]he clerk cannot
supplement the judgment the court actually pronounced by adding a provision to
the minute order . . . ." (People
v. Zackery (2007) 147 Cal.App.4th 380, 387 (Zackery).) Here, the court
made no mention of a restitution fine in the 2011 case when it orally
pronounced judgment, but the clerk entered a $600 restitution fine in the
minutes. Hence, that entry "must be
stricken from the minutes as [it] do[es] not reflect the judgment the court
pronounced." (Zackery, at p. 388.)
Although we
must strike the $600 restitution fine reflected in the minutes of the 2011
case, the trial court has authority to impose a restitution fine in that
case. Indeed, a restitution fine is
mandatory unless the court finds "compelling and extraordinary
reasons" not to impose one and states those reasons on the record. (Pen. Code, § 1202.4, subd. (b);
see People v. Tillman (2000) 22
Cal.4th 300, 302.) The trial court did not
state any such reasons on the record here.
We therefore remand the matter to allow the court to determine whether
to impose a restitution fine in the 2011 case, and if so, in what amount. (See Zackery,
supra, 147 Cal.App.4th at
p. 389.)
For the guidance of the trial court
on remand, we point out that the probation report in the 2009 case erroneously
recommended imposition of a restitution fine "in the amount of $600,
assessments. (Pen. Code, § 1202.4,
subd. (e); People v. Boudames (2006)
146 Cal.App.4th 45, 50; People v. Allen (2001)
88 Cal.App.4th 986, 992-993; People v.
McHenry (2000) 77 Cal.App.4th 730, 734.)
To the extent the court considers the recommendation contained in the
2009 probation report in setting the amount of the restitution fine for the
2011 case, it should disregard the reference to penalty assessments. We also point out that although the minimum
restitution fine was increased to $240 as of January 1, 2012 (Pen. Code,
§ 1202.4, subd. (b)(1)), the minimum was only $200 when Jones
committed her offense on September 22, 2011 (Stats. 1996, ch. 629,
§ 3; Stats. 2011, ch. 358, § 1).
Constitutional prohibitions against ex post facto laws thus require the
trial court to calculate any restitution fine to be imposed in the 2011 case on
the basis of the $200 minimum. (U.S.
Const., art. I, § 10; Cal. Const., art. I, § 9;
143; People v. Saelee (1995) 35
Cal.App.4th 27, 30-31.)
B. The
Amounts of Criminal Laboratory Analysis Fees and Drug Program Fees Imposed by
the Trial Court in the 2009 and 2011 Cases Were Unauthorized
Jones
challenges the criminal laboratory analysis and drug program fees ordered by
the trial court as exceeding the amounts authorized by statute.
The parties, both represented by experienced appellate counsel,
inexplicably ignore the mandatory penalty assessments and surcharges that must
be added to the base fine amounts specified in the statutes authorizing
criminal laboratory analysis and drug program fees. As we shall explain, the fees imposed on
Jones were actually too low because
they did not include mandatory surcharges.
A defendant
convicted of violating Health and Safety Code section 11352 "shall
pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for
each separate offense" (id.,
§ 11372.5, subd. (a)), and "a drug program fee in an amount not
to exceed one hundred fifty dollars ($150) for each separate offense" (
subd. (a)). These statutory fees
are fines, and the amount specified in each statute represents only the base
amount of the fine. (
1246, 1252; People v. Martinez (1998)
65 Cal.App.4th 1511, 1522; People v.
Sierra (1995) 37 Cal.App.4th 1690, 1696.)
"The Legislature has
superimposed onto the base fine scheme a number of penalties, assessments,
fees, and surcharges that could increase the base
fine . . . ." (
Cal.App.4th 612, 617.) Specifically,
when a criminal laboratory analysis fee or drug program fee is imposed, for
every $10 (or part of $10) of base fine assessed, the following six penalties
must also be levied: (1) a state
penalty of $10 (Pen. Code, § 1464, subd. (a)); (2) a county
penalty of $7 (Gov. Code, § 76000, subds. (a)(1), (e)); (3) a
state court construction penalty of $5 (id.,
§ 70372, subd. (a)(1)); (4) a county emergency medical services
penalty of $2 (id., § 76000.5,
subd. (a)(1));
title="">[2]
(5) a DNA penalty of $1 (id.,
§ 76104.6, subd. (a)(1)); and (6) a state-only DNA penalty of $3
(id., § 76104.7, former
subd. (a)).
title="">[3] (People
v. Sharret (2011) 191 Cal.App.4th 859, 863-864 (Sharret); People v. Taylor
(2004) 118 Cal.App.4th 454, 456-460 (Taylor);
People v. Terrell (1999) 69
Cal.App.4th 1246, 1257.) In addition, a
"state surcharge of 20 percent shall be levied on the base fine used
to calculate the state penalty assessment." (Pen. Code, § 1465.7, subd. (a);
see Sharret, at pp. 863-864;
penalties add $28 for every $10 (or part of $10) of base fine assessed, and the
state surcharge adds another 20 percent of the base fine.
Here, in the 2011 case the trial
court ordered Jones to pay "a drug program fee in the amount of $570
including penalty assessment," and "a lab analysis fee in the amount
of $190 including penalty assessment."
The court ordered Jones to pay the same amount of fees when it granted
her probation in the 2009 case. The
court did not itemize the various penalty assessments and surcharges added to
the base fine amounts, nor was it required to do so (People v. Voit (2011) 200 Cal.App.4th 1353, 1372-1373 (
Cal.App.4th at p. 864); rather, the court simply adopted the amounts
recommended in the probation reports, which referenced a "penalty
assessment" but not a state surcharge.
Thus, in the 2009 and 2011 cases, the court imposed a base fine of $50
for the criminal laboratory analysis fee, plus an additional $140 for the
associated statutory penalties ($28 for each $10 of base fine), for a total fee
of $190. In both cases, the court also
imposed a base fine of $150 for the drug program fee, plus an additional $420
for the associated statutory penalties ($28 for each $10 of base fine), for a
total fee of $570. In neither case did
the court impose the 20 percent state surcharges required by Penal Code
section 1465.7, subdivision (a).
The failure to impose the mandatory
20 percent state surcharges on the criminal laboratory analysis fees and
the drug program fees resulted in unauthorized sentences subject to correction
on appeal. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 (
Cal.App.4th at p. 1530; Taylor,
pp. 456-457.) The remedy for each
error differs, however.
The trial court has no discretion
to refuse to impose the criminal laboratory analysis fees or the related
penalty assessments and surcharges, or to set the amounts of the base fine,
penalty assessments and surcharge. We
therefore may correct the court's errors without remanding for further
proceedings. (Talibdeen, supra, 27
Cal.4th at p. 1157; Smith,
2009 and 2011 cases to impose the base fine amount ($50), plus penalty
assessments ($140) and surcharge ($10), for a total criminal laboratory
analysis fee of $200 in each case. (
By contrast, the court does have
discretion as to the drug program fees imposed in the 2009 and 2011 cases. When deciding whether to impose such a fee,
the court must consider Jones's ability to pay, taking into account the amount
of other fines assessed. (Health &
Saf. Code, § 11372.7, subd. (b).)
The court also has discretion in setting the base fine "in an
amount not to exceed [$150]." (
ability to pay the $570 drug program fee ordered by the court in each
case. Although we therefore could assume
the court found she could pay that amount (see, e.g., Castellanos, supra, 175
Cal.App.4th at p. 1531), we note the court had no occasion to consider her
ability to pay $600, the amount due in each case when the $150 base fine
selected by the trial court is increased by the applicable penalty assessments
($420) and state surcharge ($30). Under
these circumstances, we deem it appropriate to remand both the 2009 case and
the 2011 case to allow the trial court to determine Jones's ability to pay a
drug program fee and, if it determines she has such ability, to set the amount
of the fee in each case. (See
Cal.App.4th 1246, 1249-1250.) On remand,
Jones shall have the burden of proving any claimed inability to pay. (Valenzuela,
at p. 1250.)
title="">[4]
C. A
New Abstract of Judgment Must Be Prepared to Include the Correct Amounts of All
Fines, Fees and Assessments Imposed in the 2009 and 2011 Cases
Jones
complains that certain assessments listed on the abstract of judgment are
incorrect. Specifically, she contends
that at the sentencing hearing the
trial court erroneously imposed a court facilities assessment of $40 in the
2011 case;
the sentencing minute order corrected the amount to $30; but the abstract of
judgment improperly doubled the $30 assessment.
Jones also contends the abstract of judgment improperly doubled the $40
court operations assessment imposed in the 2011 case. The People concede these issues. We agree the trial court erred in imposing a
$40 court facilities assessment in the 2011 case, and we order the amount
corrected to $30. We disagree with the
parties that the abstract of judgment lists incorrect amounts for court
facilities and court operations assessments, but order preparation of a new
abstract of judgment to include all fines, fees and assessments imposed in the
2009 and 2011 cases.
The parties are correct that the
trial court erred at the sentencing hearing when it imposed a court facilities
assessment of $40 in the 2011 case, because the statute mandates an assessment
of $30 for each felony conviction. (Gov.
Code, § 70373, subd. (a)(1).)
Further, the clerk's attempt to correct this error by entering $30 in
the minutes was ineffectual, because any discrepancy between the oral
pronouncement of judgment and the minute order is resolved in favor of the oral
pronouncement. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2;
judgment in the 2011 case to include imposition of the mandatory court
facilities assessment of $30. (See
269, 274 [modifying judgment to impose court facilities assessments that had
been improperly stayed].)
We disagree with the parties,
however, that the abstract of judgment incorrectly lists the amount of court
facilities assessments due under Government Code section 70373, and court
operations assessments due under Penal Code section 1465.8 as $60 and $80,
respectively. The parties overlook the
fact that the abstract of judgment summarizes both the 2009 case and the 2011
case. In each case, Jones had to pay a
$30 court facilities assessment and a $40 court operations assessment because
those assessments must be imposed "on every conviction for a criminal
offense." (Gov. Code, § 70373,
subd. (a)(1); Pen. Code, § 1465.8, subd. (a)(1); see
1436, 1439, 1442-1443 [Gov. Code, § 70373, subd. (a)(1) assessment
was properly assessed on each of defendant's convictions]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865 [Pen. Code,
§ 1465.8, subd. (a)(1) "unambiguously requires a fee to be
imposed for each of defendant's convictions"].) Hence, the abstract of judgment correctly
included two court facilities assessments and two court operations assessments.
Nevertheless,
we order preparation of a new abstract of judgment. An abstract of judgment is a statutorily
sanctioned and official record of a judgment of conviction, and it is intended
to summarize the judgment accurately.
(Pen. Code, §§ 1213, 1213.5; People
v. Delgado (2008) 43 Cal.4th 1059, 1070.)
The abstract must specify the amount of and statutory basis for each
fine, fee, penalty and assessment imposed on the defendant. (People
v. Eddards (2008) 162 Cal.App.4th 712, 717-718; People v. High (2004) 119 Cal.App.4th 1192, 1200 (
Here, although the abstract of judgment purports to summarize the
convictions and sentences in both the 2009 and 2011 cases, it includes none of
the restitution fines the court imposed, specifies only one criminal laboratory
assessment fee and only one drug program fee, and imposes unauthorized amounts
for those fees. We may order correction
of an abstract that does not accurately reflect the judgment of the sentencing
court (People v. Mitchell (2001) 26
Cal.4th 181, 185), and we shall do so here.
Finally, before we dispose of this
appeal, we stress the obligation of the probation officer, counsel and the
trial court to ensure the correct amounts of all required fines, fees,
penalties and assessments are imposed at the sentencing hearing. "Although we recognize that a detailed
recitation of all the fees, fines and penalties on the record may be tedious,
California law does not authorize shortcuts." (High,
supra, 119 Cal.App.4th at
p. 1200.) The probation officer
should prepare a report containing recommendations regarding all mandatory
fines, fees, penalties and assessments.
Neither counsel nor the court should uncritically accept those
recommendations, however, or rely on the clerk to supply the missing details in
the minutes. Rather, counsel should
discuss all applicable fines, fees, penalties and assessments in their
sentencing memoranda; and the court should review those memoranda, the
probation report and the applicable statutes to ensure the proper amounts of
all required fines, fees, penalties and assessments are orally imposed at the
sentencing hearing.
title="">[6] Careful attention to this routine aspect of
sentencing would prevent errors and omissions like those that occurred in this
case, and reduce the number of costly and time-consuming appeals taken on that
basis.
DISPOSITION
In case
No. SCD224454, the $190 criminal laboratory analysis fee listed in the
order granting probation dated March 30, 2010, is modified to $200. The $570 drug program fee listed in that
order is reversed, and the matter is remanded to the trial court to determine
whether Jones has the ability to pay such a fee; and if it determines she has
such ability, to set the amount of the fee.
The $600 restitution fine listed in the minute order dated
March 19, 2012, is stricken. In all
other respects, the judgment is affirmed.
In case
No. SCD236717, the $40 court facilities assessment orally imposed at the
sentencing hearing on March 19, 2012, is modified to $30. The $190 criminal laboratory analysis fee
imposed at that hearing is modified to $200.
The $570 drug program fee imposed at that hearing is reversed, and the
matter is remanded to the trial court to determine whether Jones has the
ability to pay such a fee; and if it determines she has such ability, to set
the amount the fee. The $600 restitution
fine listed in the minute order dated March 19, 2012, is stricken, and the
matter is remanded to the trial court to determine whether there exist
compelling and extraordinary reasons not to impose a restitution fine; and if
so, the court shall state those reasons on the record; but if not, the court
shall impose a restitution fine. In all
other respects, the judgment is affirmed.
Upon
remand, after the trial court makes its determinations regarding the
restitution fine in case No. SCD236717 and the drug program fees in case
Nos. SCD224454 and SCD236717, the court shall prepare an amended abstract
of judgment that summarizes the convictions and sentences in both cases,
including the amounts of and statutory bases for all fines, fees, penalties and
assessments imposed (except that incremental state and county penalty
assessments and surcharges added to base fine amounts need not be separately
itemized, see fn. 6, ante); and
shall forward a
certified copy of the amended
abstract to the Department of Corrections
and Rehabilitation.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN,
J.
name="_ftn1" title="">[1] Although her briefing is not entirely clear, Jones seems to
challenge only the criminal laboratory analysis and drug program fees imposed
in the 2011 case. We nevertheless also
review the corresponding fees imposed in the 2009 case, because, as we explain
in the text, those fees were unauthorized.
(See, e.g., Smith,
"reviewable 'regardless of whether an objection or argument was raised in
the trial and/or reviewing court' "];
Dotson, supra, 16 Cal.4th at
p. 554, fn. 6 [an unauthorized sentence "is subject to judicial
correction whenever the error comes to the attention of the reviewing
court"].)
name="_ftn2" title="">[2] Before an emergency medical services assessment may be
imposed, the county board of supervisors must elect to levy it. (Gov. Code, § 76000.5,
subd. (a)(1); People v. Castellanos (2009)
175 Cal.App.4th 1524, 1528-1529 (Castellanos).) The San Diego County Board of Supervisors
adopted a resolution authorizing imposition of the assessment. (San Diego County Bd. of Supervisors Res.
No. 07-041, dated Mar. 20, 2007.)
