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P. v. Lashin

P. v. Lashin
01:30:2013






P












P. v. Lashin



















Filed 7/2/12
P. v. Lashin 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

(Placer)

----






>






THE PEOPLE,



Plaintiff and Respondent,



v.



ANDRE LASHIN,



Defendant and Appellant.




C065713



(Super. Ct. Nos.

62-97795, 62-96644, 62-97616)












Pursuant to a plea
agreement involving three separate cases, defendant Andre Lashin entered no
contest pleas to corporal injury on a
spouse or cohabitant
(Pen. Code, § 273.5, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1] with an enhancement for personally inflicting great bodily injury
(§ 12022.7, subd. (e)), second degree
burglary
(§ 459), receiving stolen
property
(§ 496, subd. (a)), and being under the influence of a controlled
substance (Health & Saf. Code, § 11550, subd. (a)). In exchange for his pleas, numerous charges
were dismissed and it was agreed he would receive five years’ formal probation
with the suspended execution of a term of 10 years four months in href="http://www.mcmillanlaw.com/">state prison. Defendant was sentenced in accordance with
this agreement.

Defendant appeals,
contending the trial court’s written probation order does not accurately
reflect the fines and fees it assessed when pronouncing sentence. He also claims the court was not permitted to
impose a fine in addition to ordering him to make payments to a battered
women’s shelter. Defendant’s final
contention is that the court did not assess his ability to pay before ordering
payment of the costs of preparing the presentence report and probation
supervision. We conclude the matter
must be remanded to the trial court for clarification of its order.

PROCEDURAL BACKGROUNDhref="#_ftn2" name="_ftnref2" title="">[2]

Following defendant’s
previously described no contest pleas, the trial court referred his matters to
the probation department for a presentence report. The presentence report contained recommended
terms and conditions of probation, including the following fines and fees: (1) a $400 payment to the domestic violence
fund; (2) a $400 payment to a battered women’s shelter; (3) a $100 fine plus
penalty assessments and a 20 percent surcharge on the base fine pursuant to
section 1465.7; (4) $350 for the cost of preparing a presentence report; (5)
probation supervision/service fees of $20 per month; (6) $25 for each drug
test; (7) a $25 administration screening fee;

(8) a $30 fine for each offense pursuant to section 1465.8;

(9) a $200 restitution fine; (10) a suspended probation revocation fine of
$200; and (11) a $30 assessment fee per offense pursuant to Government Code
section 70373.

At the sentencing hearing,
defendant’s attorney informed the court he had reviewed the presentence report
and the proposed order with defendant and that he had no comments. The trial court stated it was “going to adopt
the recommendations of probation.” In
addition to suspending execution of sentence and setting forth various terms
and conditions of probation, the court ordered defendant to “pay the following
fines and fees: $400 assessment to the
domestic violence fund, $100 assessment to the Placer Women’s Center, $30 court
security fee, $30 criminal assessment fee, and $100 state restitution
fine.” The court also suspended a $100
state restitution fine “pending revocation of probation.” The court ordered “all the other standard
terms as set forth in the probation officer’s report” and “adopt[ed] the fines
as recommended by probation.”

Defendant signed the
probation order, which set forth fines and fees nearly identical to those
recommended in the presentence report.

DISCUSSION

Defendant complains that
the probation order prepared by the court clerk contains “a variety of fines,
fees, and conditions which were never imposed by the trial court.” According to the People, the court’s oral
pronouncement that it was adopting the fines and recommendations of probation
was sufficient to permit imposition of the amounts recommended in the
presentence report. Because the trial
court’s intent in this regard is unclear, we conclude the matter must be
remanded for the court to provide clarification.

However, in the present
matter, contrary to the trial court’s statement that it was adopting the
recommendations of probation, it orally imposed a payment to a battered women’s
shelter and a restitution fine that differed from the amounts recommended in
the presentence report.href="#_ftn3"
name="_ftnref3" title="">[3] Moreover, the only costs or
fees mentioned in the court’s oral pronouncement were a court security fee (§
1465.8) and a criminal assessment fee (Gov. Code, § 70373), and the court did
not specify that these were to be imposed in
each case
, as is statutorily required and was recommended in the
presentence report.href="#_ftn4"
name="_ftnref4" title="">[4]

Based on these
discrepancies, it is unclear what the court meant when it stated it was
adopting the recommendations and “fines” suggested by the probation
department. It is possible the court was
referring only to the remaining $100 fine, along with the penalty assessments
and surcharge associated with that fine.
To the extent this was the case, we note the court was not authorized to
order defendant to pay both a fine and
an “assessment” to a battered women’s shelter.
(§ 1203.097, subd. (a)(11)(A).)

The remaining costs and
fees not mentioned by the court were all subject to a determination of
defendant’s ability to pay. (§ 1203.1b
[cost of presentence report and probation supervision]; § 1203.1ab [drug
testing]; Gov. Code § 29550, subds. (c) & (d)(2) [criminal justice
administration fee].) The record does
not reflect this determination was made, except for a statement in the
presentence report regarding the cost of probation supervision. Nor does it appear defendant was fully
advised of his right to a hearing on this issue.href="#_ftn5" name="_ftnref5" title="">[5] The People are correct that
this issue may be deemed forfeited for purposes of appeal if a defendant fails
to object in the trial court. (People v. Valtakis (2003) 105 Cal.App.4th
1066, 1072.) The
problem in the present matter is that it may have been the trial court’s intent
not to impose the remaining costs and fees.
We note that, in response to a request by defendant’s attorney at the
plea hearing, the court stated it would consider at sentencing waiving the fee
for a presentence report. The court’s
intent could also be inferred from its imposition of a battered women’s shelter
assessment that was lower than recommended in the presentence report, as
imposition of this payment is also subject to a defendant’s ability to
pay. (§ 1203.097, subd. (a)(11).) The court’s intent is unclear, and the matter
must be remanded for clarification.

We
note other anomalies in the written probation order. The order fails to delineate which fines and
costs are conditions of probation and which are not. An order for probation costs may not be a
condition of probation. (>People v. Hart (1998) 65 Cal.App.4th
902, 907.) The same reasoning applies to
the cost of drug testing. This is also
the case for a court security fee and a criminal justice assessment fee. (People
v. Alford
(2007) 42 Cal.4th 749, 756 [§ 1465.8]; People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1414 [Gov.
Code, § 70373].) On the other hand,
payment to a battered women’s shelter (§ 1203.097, subd. (a)(11)) and payment
of a booking fee (Gov. Code, § 29550, subd. (d)(2)) are required by statute to
be conditions of probation.

Furthermore,
the written probation order directs defendant to pay a probation supervision
fee of $1,200, rather than the $20 per month recommended in the presentence
report. This was improper, “as the
liability to pay such costs accrues only as each month of supervision occurs
and, unless defendant successfully completes the probationary period, may never
exist.”href="#_ftn6" name="_ftnref6"
title="">[6] (People v. Hart, supra, 65 Cal.App.4th at p. 906.)

Finally,
the probation order fails to specify the statutory bases for each fine, fee,
and cost imposed. (People v. High (2004) 119 Cal.App.4th 1192, 1200; >People v. Eddards (2008) 162 Cal.App.4th
712, 717-718.) All of these issues
should be addressed upon remand of the matter.

DISPOSITION

Defendant’s
convictions are affirmed. The matter is
remanded to the trial court with directions to specify whether defendant is
required to pay the costs of preparing a presentence report, probation
supervision, and drug testing. The court
is ordered to prepare an amended probation order, or an amended abstract of
judgment if defendant is no longer on probation, containing its determinations
in this regard, in addition to correcting the amount of the restitution fine,
the suspended probation revocation fine, and the payment to the

battered
women’s shelter, and specifying the statutory bases for all fines, fees, and
costs imposed.







NICHOLSON ,
Acting P. J.







We concur:








ROBIE
, J.







HOCH , J.







id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] Further statutory
references are to the Penal Code unless otherwise specified.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">[2] We dispense with a
recitation of the facts underlying defendant’s convictions as they are not
relevant to the issues he raises on appeal.


id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">[3] The People concede that the
probation order should be amended to reflect the amounts orally imposed by the
court at sentencing for these items.

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">[4] Defendant acknowledges the
statutory requirement that these fees be imposed in each case, and he does not
object to the requirement in the written probation order that he pay this
amount.

id=ftn5>

href="#_ftnref5"
name="_ftn5" title="">[5] The probation order signed
by defendant states that he has a right to a hearing on his ability to pay “booking
and incarceration fees.” A defendant is
entitled to a hearing on his ability to pay all
probation costs. (§ 1203.1b, subd. (a).)

id=ftn6>

href="#_ftnref6"
name="_ftn6" title="">[6] In fact, the record
reflects that, less than two weeks after defendant was placed on probation, a
petition for revocation of probation was filed based on allegations that he
committed numerous new offenses.
Although this court has not been apprised of the disposition of the
revocation petition, it may well be that defendant’s period of probation
supervision was particularly brief.








Description Pursuant to a plea agreement involving three separate cases, defendant Andre Lashin entered no contest pleas to corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a))[1] with an enhancement for personally inflicting great bodily injury (§ 12022.7, subd. (e)), second degree burglary (§ 459), receiving stolen property (§ 496, subd. (a)), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). In exchange for his pleas, numerous charges were dismissed and it was agreed he would receive five years’ formal probation with the suspended execution of a term of 10 years four months in state prison. Defendant was sentenced in accordance with this agreement.
Defendant appeals, contending the trial court’s written probation order does not accurately reflect the fines and fees it assessed when pronouncing sentence. He also claims the court was not permitted to impose a fine in addition to ordering him to make payments to a battered women’s shelter. Defendant’s final contention is that the court did not assess his ability to pay before ordering payment of the costs of preparing the presentence report and probation supervision. We conclude the matter must be remanded to the trial court for clarification of its order.
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