P. v. Wilcoxson



















Filed 7/9/13 P.
v. Wilcoxson CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
ONE




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THE PEOPLE, Plaintiff and Respondent, v. SAHRA ARLINE WILCOXSON, Defendant and Appellant.

A134801 (Lake County Super. Ct. Nos. CR921179, CR923713, CR926806, CR928053)

Defendant
Sahra Arline Wilcoxson contends the sentencing court failed to state valid
statutory bases for all fines and penalty assessments imposed in connection
with her guilty and no-contest pleas in four cases. She seeks remand for the court to specify the
statutory bases for the fines and penalties imposed, and enter a final minute
order reflecting its oral judgment. We
correct the sentencing minute order in
two respects, but find no basis to remand the case for further sentencing
proceedings.

>I.
BACKGROUND

Defendant pleaded
guilty or no contest in the four cases summarized below. The underlying facts are drawn from the
probation officer’s reports.

A. Case No. CR921179

On January 5, 2010, a sheriff’s deputy, who
recognized defendant, stopped her for driving on a suspended California
driver’s license. The deputy found
methamphetamine in defendant’s possession during a search of her vehicle. She was arrested for driving under the
influence.

On
February 5, 2010, defendant pleaded guilty to possession of methamphetamine while
on bail (Health & Saf. Code, § 11377, subd. (a)), driving while under the
influence (Veh. Code, § 23152, subd. (a)), and driving on a suspended license
with prior convictions (Veh. Code, § 14601.1).
On March 12, 2010, the trial court granted defendant probation.

B. Case No. CR923713

On
October 29, 2010, during a search following a vehicle stop, police found three
plastic bags containing methamphetamine in defendant’s possession.

On
November 8, 2011, defendant pleaded no contest to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)


C. Case No. CR926806

On
June 7, 2011, while on searchable probation, defendant was found in possession
of a plastic bag of methamphetamine and a glass smoking pipe.

On
November 8, 2011, defendant pleaded no contest to an additional count of
possession of methamphetamine. (Health
& Saf. Code, § 11377, subd. (a).)

D. Case No. CR928053

On
October 21, 2011, defendant was arrested and taken to the county jail. When warned that it was a felony to bring any
controlled substances into the jail, defendant stated that she did not have any
illegal items on her person. During a
search at the jail, 3.5 grams of methamphetamine were found in defendant’s
underwear. This offense was committed
while defendant was on bail in three other cases.

On
November 8, 2011, defendant pleaded guilty to bringing a controlled substance
and paraphernalia into a place where prisoners or inmates are located (Pen.
Code, § 4573) and admitted one on-bail enhancement allegation (Pen. Code, §
12022.1). The guilty plea also
constituted an admission to violation of probation in case No. CR921179.

E. Sentencing

On
December 20, 2011, the trial court sentenced defendant in each of the above
cases to a total combined term of eight years.
This was agreed to be an eight-year split sentence with four years in
custody and four years’ mandatory supervision.
Defendant filed a timely notice of appeal, and was granted a href="http://www.mcmillanlaw.com/">certificate of probable cause.

The
court imposed fees and fines as follows:
In case No. CR921179, the court imposed a new $600 restitution fine
(Pen. Code, § 1202.4, subd. (b)), and a $600 previously stayed restitution
fine (Pen. Code, § 1202.44). In
each of the other three cases, a $200 restitution fine was imposed. (Pen. Code, § 1202.4, subd. (b).) A court security fee of $90 and a criminal
conviction assessment of $90 were imposed in case No. CR921179 ($30 per
count), and court security fees of $40, and criminal conviction assessments of
$30 were imposed in each of the other three cases. Lab fees and drug program fees, with penalty
assessments, were imposed in cases Nos. CR921179, CR926806, and CR923713.

>II.
DISCUSSION

A. Contentions

Defendant
contends the sentencing court failed to state valid statutory bases for all
fees, fines, and penalty assessments imposed.
She seeks remand for the court to identify the statutory bases for all
financial impositions, and to prepare a final minute order reflecting its oral
judgment.

Defendant
asserts no statutory bases were stated for (1) $450 in penalty assessments
imposed in cases Nos. CR923713 and CR926806, on top of the $150 drug program
fee authorized by Health and Safety Code section 11372.7; (2) $150 in
penalty assessments imposed in cases Nos. CR923713 and CR926806, in addition to
the $50 lab fee; (3) a $420 penalty assessment imposed in case No. CR921179, on
top of the $150 drug program fee; and (4) a $140 penalty assessment imposed in
case No. CR921179, on top of the $50 lab fee.href="#_ftn1" name="_ftnref1" title="">[1] Defendant does not contend imposition of
these penalty assessments or their amounts were unauthorized by law.

In
addition, defendant complains the court failed to state the statutory bases for
a $600 fine and penalty assessment of $1,680 originally imposed in case No.
CR921179 and reimposed when she admitted a probation violation in that case on
December 20, 2011 by her guilty plea in case No. CR928053. The clerk’s minutes reference Penal Code
section 1202.5 for these impositions, but this statute applies only to
specified robbery, burglary, and theft crimes.
As the People concede, the improper reference to section 1202.5 should
be stricken from the clerk’s minutes of December 20, 2011. However, defendant does not maintain the fine
and penalty assessment were unauthorized by law.

B. Drug Program and Lab Fee Penalty Assessments

At sentencing, the
court cited Health and Safety Code sections 11372.5 and 11372.7,
respectively, in imposing the $50 lab fee and $150 drug program fee in each case. In addition it specified in each case the
aggregate amount of the penalty assessments to be added to each fee and the
combined total of the fee and penalty assessments. The court did not explain how the aggregate
amount of the assessments had been determined in each instance or cite the
statutes that authorized the imposition of penalties. Such an itemization at sentencing would have
been quite time consuming. The six penalty
assessments imposed in this case each derive from the combined effect of seven
state statutes that directly impose or authorize counties to impose penalties
earmarked for a variety of criminal justice-related purposes and funds. (See People
v. Voit (2011) 200 Cal.App.4th 1353, 1373–1374 (Voit).)href="#_ftn2" name="_ftnref2"
title="">[2]

Because
these seven statutes all apply on a statewide or countywide basis, the same
assessments would be made in every case in which a lab or drug program fee is
imposed in Lake County, as long as the statutes or county ordinances authorized
by them do not change.href="#_ftn3"
name="_ftnref3" title="">[3] In our view, it would be impractical and
unnecessary in these circumstances for a trial court to be required to
separately itemize the dollar amounts of each of the seven applicable penalty
assessments, and identify each of the authorizing statutes, every time a
sentence triggering them is pronounced.
In this case, that would have required the trial court to orally recite
some 42 separate penalty assessments imposed in the three cases in which lab
and drug fees were imposed. Because the
same seven penalty assessment statutes apply countywide, defense counsel can
readily determine from their aggregate amount whether the probation department
has made an error in calculating them.
Making the court go through the lengthy process of reciting the amount
and statutory basis for each separate assessment is completely unnecessary as a
matter of due process, and would be entirely counterproductive. The sheer volume of dollar amounts and
statutes to be read off at sentencing would make it more difficult, not less
difficult for counsel to notice errors, and would amplify the likelihood of
error caused by the simple misreading of numbers.

The
case law has recognized this is not necessary.
(See Voit, >supra, 200 Cal.App.4th at
p. 1373 [“We conclude that the trial court adequately pronounced judgment
by imposing a specific fine and generally referring to the applicable penalty
assessments”]; see also People v. Sharret
(2011) 191 Cal.App.4th 859, 864 [approving pronouncement of a laboratory
fee and drug program fee “ ‘plus penalty assessment’ ”].) People
v. High (2004) 119 Cal.App.4th 1192, cited by defendant, is distinguishable
in that the trial court in that case did not separately state the amounts of
the underlying fee and penalty assessments but provided only a total sum for
the “ ‘fee, together with surcharges and penalties.’ ” (Id.
at p. 1200.) While it might have
been better practice for the minute order in this case to identify the penalty
statutes applied, the trial court was not required to itemize those amounts and
no purpose would be served by remanding for entry of a new minute order when
there is no mystery or dispute about whether the penalties were authorized by
law. (See Sharrett, at p. 864; People
v. Eddards (2008) 162 Cal.App.4th 712, 718.)

C. Fine and Penalty Assessment in Case No. CR921179

The
probation officer’s report in case No. CR921179 recommended that defendant be
required to pay a fine of $600, plus a penalty assessment of $1,680, in
installments to be established by the probation officer. By order of March 12, 2010, the court placed
defendant on probation in that case and made the payment of these amounts a
term of her probation. No appeal was
taken in connection with that order. In
connection with the four cases consolidated for sentencing, the probation
department noted in its report defendant had done poorly in her probation in
case No. CR921179 and had paid none of the required fines and fees. A supplemental report recommended defendant
pay the previously ordered fine of $600, plus a penalty assessment of
$1,680. The court reimposed that fine
and assessment when she was sentenced in the consolidated cases on December 20,
2011.

The
trial court’s March 12, 2010 order was an appealable final judgment. (Pen. Code, § 1237, subd. (a).) No appeal was taken from that order and the
time to appeal it has lapsed.
Defendant’s challenge to the trial court’s failure to identify a
statutory basis for the fine and penalty assessment is therefore not cognizable
on this appeal. (See >People v. Silva (1966) 241 Cal.App.2d
80, 82–83.) We reject defendant’s claim
that reimposition of the fine and penalty in the 2011 proceedings must be
considered a new judgment that starts a new time clock for taking an appeal. “[T]o ‘reimpose’ a restitution fine is not to
impose a new, prohibited second
fine. Rather, to reimpose the fine is to
confirm or acknowledge the same fine
that previously had been imposed upon conviction.” (People
v. Cropsey (2010) 184 Cal.App.4th 961, 965.)

>III.
DISPOSITION

The
December 20, 2011 minute order entries for case No. CR921179 shall be corrected
to (1) strike “per PC 1202.5” and (2) strike “Lab Fee of: $200.00
is imposed per HS11372.5” and substitute “Lab fee of $190 is imposed per Health
and Safety Code section 11372.5, including penalty assessments.” In all other respects, the judgment is
affirmed.









_________________________

Margulies,
Acting P.J.





We concur:





_________________________

Dondero, J.





_________________________

Banke, J.