P. v. Williams
Filed 6/29/12 P.
v. Williams CA1/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
MELINDA MACKLI WILLIAMS,
Defendant and
Appellant.
A132894
(Alameda County
Super. Ct. No. H44362)
Defendant Melinda Mackli Williams
appeals from a judgment entered after she pleaded no contest to two counts of
court would impose a prison sentence but suspend its execution while she was on
probation. On her prior appeal, we
upheld the convictions but vacated the sentence and remanded for
resentencing. (People v. Williams (Apr. 29, 2011, A128781) [nonpub.
opn.] (Williams I), at p. 9.)
the aggregate term of imprisonment and asking the clerk to clarify Williams’s
custody credits. Nevertheless, the
court’s minute order and the abstract
of judgment includes the following monetary penalties: a $3,200 restitution fine, a $3,200 parole
restitution fine, a $30 criminal conviction assessment, a $30 court security
fee, and a $250 probation investigation fee.
On this appeal we agree with
Williams that the court’s minute order and the abstract of judgment must be
corrected by striking the restitution
fine, the parole restitution fee, the criminal
conviction assessment, and the probation investigation fee, and on remand
we will direct the trial court to make the necessary corrections. We also conclude the judgment should be
modified by vacating the $30 court security fee and imposing a $20 court
security fee for each of Williams’ four convictions for a total of $80. In all other respects, the judgment is
affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On March 6, 2008, the
County District Attorney filed a four-count information, charging Williams
with two counts of second degree commercial burglary (Pen. Code, § 459
and two counts of check forgery (§ 470, subd. (d)). (Williams
I, supra, at pp. 1-2.) It was
further alleged that Williams had suffered three prior convictions for petty
theft with a prior (§§ 484, subd. (a), 666) and had served a prior prison
term within the meaning of section 667.5, subdivision (b). (Williams
I, supra, at p. 2.)
On May 2, 2008, at the change of
to all of the charges and admitted the prior conviction allegations. (Williams
I, supra, at p. 2.) The court
indicated it would sentence Williams to an aggregate term of four years eight
months in prison, with execution of the sentence suspended while she served a
probationary term of five years.
name="_ftnref4" title="">[4] (Id.,
at p. 2.) Williams was released on
her own recognizance and the matter was scheduled for sentencing. (Id.,
at p. 3.) However, Williams
absconded before sentencing and the court issued a bench warrant for her
arrest. (Ibid.)
Nearly two years later, in March
2010, Williams was returned to custody and appeared at several court hearings
before a new trial court judge. (
fn. 2.) The record of those
proceedings presented “a convoluted picture,†which we need not now repeat in
its entirety. (Id. at p. 7.) In
pertinent part, at the May 24, 2010, hearing, the court “revoked probation
(despite the fact Williams was not on
probation), it lifted the stay of execution on a sentence that had not yet been
imposed, and on the record available to this court, there was no oral
pronouncement of sentence, aside from the court stating the aggregate term of
imprisonment and asking the clerk to clarify Williams’ custody credits.†(Id.
at p. 8, fn. omitted.)
Additionally, the clerk reported on the specifics of the sentence, such
as the amount of the restitution fine, although no such details were stated in
open court. (Id., at p. 8, fn. 3.)
As we concluded in our prior decision, “[u]nder the circumstances, and
particularly in light of the ambiguous and unclear record of the proceedings
that resulted in Williams’s sentence, we [were] compelled to remand the matter
for resentencing. On remand, the trial
court [was] directed to exercise its discretion in sentencing Williams and to
state the reasons for its sentencing choices.
[Fn. omitted.] (Pen. Code,
§ 1170, subd. (c).)†(
On June 3, 2011, the trial court
held a resentencing hearing. Williams
and her counsel were present; no one appeared on behalf of the People. Both defense counsel and Williams addressed
the court regarding the potential sentences that could be imposed at that
time. After considering the arguments,
the trial court stated that it was exercising its discretion to impose the
aggregate four year eight month sentence that had been originally contemplated
by the court. The court asked the clerk
to clarify Williams’s custody credits.
The court did not orally pronounce any other details of the sentence,
including any fines, fees, or assessments.
However the court’s minute order and the abstract of judgment issued on
June 3, 2011, included a $3,200 restitution fine, a $3,200 parole restitution
fine, a $30 criminal conviction assessment, a $30 court security fee, and a
$250 probation investigation fee.
Williams filed a timely appeal from the judgment.
DISCUSSION
Preliminary, we reject the People’s
contention that Williams has forfeited her right to challenge the inclusion of
the monetary penalties in the court’s minute order and the abstract of judgment
filed on June 3, 2011. Concededly, the
same monetary penalties were included in the original abstract of judgment, and
Williams could have challenged their inclusion in her earlier appeal. However, “[a]n abstract of judgment is not
the judgment of conviction; it does not control if different from the trial
court’s oral judgment and may not add to or modify the judgment it purports to
digest or summarize. [Citation.]†(People
v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).) Thus, even if Williams had mentioned the
error in her prior appeal, we would have had no reason to address it. Because we were vacating the sentence and remanding
the matter for resentencing, we would reasonably presume that any such errors
would be corrected by the trial court at resentencing. Nor do we see any merit to the People’s
additional argument that “[t]he case was not remanded to redo the fees.†In our prior decision, we repeatedly stated
that the case was being remanded for resentencing. (Williams
I, supra, at pp. 1, 9.) By
vacating the sentence and remanding for the trial court “to exercise its
discretion in sentencing Williams and to state the reasons for its sentencing
choices†(Id., at p. 9), we
expected the trial court to orally pronounce judgment on all sentencing issues,
including the amounts of any fines, fees, and assessments. Because the trial court had not previously
orally pronounced judgment as to any monetary penalties, no such aspects of the
sentence remained in effect after remand, as the People suggest.
As to Williams’ substantive
arguments, it is undisputed that when the trial court orally pronounced its
resentence, it did not impose a $3,200 restitution fine, a $3,200 parole
restitution fine, a $30 criminal conviction assessment, a $30 court security
fee, or a $250 probation investigation fee.
Consequently, we agree with Williams that those sentence components are
not part of the judgment,
name="_ftnref5" title="">[5]
and should not have been added to the court’s minute order and the abstract of
judgment. (See Mitchell, supra, 26 Cal.4th at p. 185.)
We also agree with Williams that as
to the restitution fine, the parole restitution fine, and the probation
investigation fee, the proper remedy is to direct the trial court to correct
its minute order and the abstract of judgment by striking those monetary
penalties without remanding the matter for a hearing in Williams’s presence. In addressing the remedy for a court’s
omission of the restitution and parole restitution fines from its judgment, our
Supreme Court has held that “appellate courts may not correct these errors if
the trial court failed to state a reason for its failure to impose [the fines],
and the People failed to object [in the trial court]. [Citation.]â€
(People v. Smith (2001) 24
Cal.4th 849, 851; see People v. Tillman
(2000) 22 Cal.4th 300, 303 (Tillman)
[Supreme Court barred the Court of Appeal from correcting judgment by adding
minimum restitution and parole restitution fines omitted from the court’s
judgment].) For similar reasons, we also
conclude that the People’s failure to object to the probation investigation fee
requires striking that fee without remanding the matter for a hearing in
Williams’s presence. Like the imposition
of a restitution fine, the imposition of a probation investigation fee
(§ 1203.1b) concerns “a discretionary sentencing choice,†which must be
challenged in the trial court. (
p. 303.) Here, the People ask us to
remand the matter to allow the trial court to comply with the due process
requirements of section 1203.1b, by either taking “a knowing and intelligent
waiver of a hearing from†Williams, or conducting “a hearing and determine
[her] ability to pay†the probation investigation fee. (See People
v. O’Connell (2003) 107 Cal.App.4th 1062, 1067-1068; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321). However, the People’s failure to object in
the trial court to the omission of the probation investigation fee from the
judgment precludes them “from obtaining the relief they seek on appeal.†(Tillman,
supra, 22 Cal.App.4th at p. 302.)
Unlike the previously mentioned
fines and fee, under the circumstances in this case the trial court was
required to orally impose any applicable criminal
conviction assessments (Gov. Code, § 70373) and court security fees
(§ 1465.8). (See
269, 272-273; People v. Crittle (2007)
154 Cal.App.4th 368, 371.) However, we
agree with Williams that the trial court should be directed to correct its
minute order and the abstract of judgment by striking the criminal conviction
assessment. That assessment does not
apply in this case because Williams’s 2008 convictions by pleas were rendered
before the January 2009 effective date of Government Code section 70373
authorizing the assessment. (See
998, 1000-1001.) Additionally, we agree
with Williams that at the time of her 2008 convictions the court security fee
required to be imposed was $20, and not $30 as reflected in the court’s minute
order and the abstract of judgment. (See
Stats. 2007, ch. 302, § 18; People
v. Crabtree (2009) 169 Cal.App.4th 1293, 1327.) However, the court’s minute order and the
abstract of judgment reflect the imposition of only one court security
fee. “The trial court should have
imposed one $20 court security fee for each
of [Williams’s] four convictions, for a total of $80. [Citations.]â€
(People v. Walz (2008) 160
Cal.App.4th 1364, 1372; see People v.
Schoeb (2005) 132 Cal.App.4th 861, 865-867.) Accordingly, we will modify the judgment by
vacating the $30 court security fee and imposing a $20 security fee for each of
the four convictions, for a total of $80.
(See People v. Moreno (2003)
108 Cal.App.4th 1, 11 [“[a]n invalid or unauthorized sentence ‘is subject to
being set aside judicially and is no bar to the imposition of a proper judgment
thereafter, even though it is more severe than the original unauthorized
pronouncement’ â€].)
The judgment is modified by vacating
the $30 court security fee and imposing a $20 court security fee for each of
the four convictions, for a total of $80.
As so modified, the judgment is affirmed. The trial court is directed to prepare both a
corrected sentencing minute order and a corrected abstract of judgment
(1) deleting the $3,200 restitution fine, the $3,200 parole restitution
fine, the $30 criminal conviction assessment, the $30 court security fee, and
the $250 probation investigation fee; and (2) imposing a $20 court
security fee for each of the four convictions, for a total of $80. The trial court shall forward a copy of the
corrected abstract of judgment to the California
Rehabilitation.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1] We grant the parties’ requests and take
judicial notice of the record in Williams
I. (See Evid. Code, §§ 452,
subd. (d), 459.)
name="_ftn2" title="">[2] Because this appeal is limited to sentencing
issues, we set forth only those facts necessary to resolve the issues raised by
Williams.
