Filed 10/6/17 P. v. Morales CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Joaquin Tanori Morales pleaded no contest to various crimes charged in two different cases. In a negotiated disposition of both cases, the trial court sentenced him to four years in prison. The court also imposed fines, fees, and penalty assessments.

Defendant’s sole contention on appeal is that the abstract of judgment does not reflect the statutory basis for and the amount of each penalty assessment imposed in one of the cases. We modify and affirm the judgment.

I. Background

Defendant pleaded no contest in case No. C1356727 to felony possession of methamphetamine for sale (Health & Saf. Code, § 11378) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)).[1] He pleaded no contest in case No. C1488873 to felony false imprisonment (§§ 236, 237), misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A)), and domestic battery (§§ 242, 243, subd. (e)). Defendant admitted prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), prison prior (§ 667.5, subd. (b)), and on-bail (§ 12022.1) allegations. The trial court sentenced him to the agreed four-year prison term.

The court also imposed fines, fees, and penalty assessments. In case No. C1356727, these included “a $50 criminal laboratory analysis fee plus penalty assessment . . . pursuant to section 11372.5 of the Health and Safety Code” and “a $150 drug program fee plus penalty assessment . . . pursuant to section 11372.7 of the Health and Safety Code.” The clerk’s minutes of the sentencing hearing reflect “LAB $50 + PA $155” and “DPF $150 + PA $465.” The abstract of judgment reflects “Lab Fee per HS 11372.5(a),” “Drug Program Fee per HS 11372.7(a),” “DPF $150 + PA $465,” and “LAB $50 + PA $155.”

Defendant filed a timely notice of appeal from the judgment.

II. Discussion

A. Appealability

Defendant contends that his appeal is cognizable because he attempted (albeit unsuccessfully) to raise the issue of the defective abstract in the trial court, as section 1237.2 requires. The Attorney General responds that defendant did not need to comply with section 1237.2 because it was not in effect when he noticed his appeal. We agree with the Attorney General.

Section 1237.2 “only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal.” (§ 1237.2.) It provides that “[a]n appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for correction.” (§ 1237.2.) Section 1237.2 was enacted in 2015 and became effective on January 1, 2016. (Stats. 2015, ch. 194, § 3.)

Defendant filed his notice of appeal on September 2, 2015. This was four months before section 1237.2 went into effect. The issue is whether the Legislature intended the statute to apply retroactively.

“Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent. When the Legislature has not made its intent on the matter clear with respect to a particular statute, the Legislature’s generally applicable declaration in section 3 provides the default rule: ‘No part of [the Penal Code] is retroactive, unless expressly so declared.’ ” (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).) Our high court has described “section 3 and its identical counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3), as codifying ‘the time-honored principle . . . that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application.’ [Citations.]” (Brown, at p. 319.)

Section 1237.2 does not contain an express retroactivity provision. The parties have not drawn our attention to any extrinsic source indicating that the Legislature intended the statute to apply retroactively. We conclude that section 1237.2 does not apply here. It follows that defendant’s appeal is cognizable.

B. Penalty Assessments

Defendant complains that “[t]he statutory bases for [the penalty] assessments are not reflected in the Abstract of Judgment as required by law.” We agree that the failure to include that information was error.

Trial courts are required to identify the statutory basis for all fees, fines, and penalties imposed. (People v. High (2004) 119 Cal.App.4th 1192, 1200 (High).) “Although . . . a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment.” (High, at p. 1200.) It is permissible for the trial court to “orally impose the penalties and surcharge . . . by a shorthand reference to ‘penalty assessments.’ The responsibility then falls to the trial court clerk to specify the penalties and surcharge in appropriate amounts in the minutes and, more importantly, the abstract of judgment.” (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) This court has found that procedure reasonable and adequate. (People v. Voit (2011) 200 Cal.App.4th 1353, 1373 (Voit).)

The purpose for the requirement that fines, fees, and penalty assessments be itemized in the record is two-fold. First, “[a]ppellate courts are often called upon to correct sentences that contain errors in fines and penalty assessments. . . . Many of these errors could be caught and corrected in the trial court.” (People v. Hamed (2013) 221 Cal.App.4th 928, 939 (Hamed).) “A detailed description of the amount of and statutory basis for the fines and penalty assessments imposed would help the parties and the court avoid errors . . . . By itemizing and listing the component parts of base fines and penalty assessments prior to sentencing, the parties would have an opportunity to identify and correct errors in the trial court, avoiding unnecessary appeals.” (Id. at pp. 939-940.) Second, listing the amount and statutory basis for each fine and penalty assessment in the abstract “assists the Department of Corrections and Rehabilitation to ‘fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.’ ” (Hamed, at p. 940.) “At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts.” (High, supra, 119 Cal.App.4th at p. 1200.)

Here, the trial court orally imposed “a $50 criminal laboratory analysis fee plus penalty assessment . . . pursuant to section 11372.5 of the Health and Safety Code” and “a $150 drug program fee plus penalty assessment . . . pursuant to section 11372.7 of the Health and Safety Code.” It was permissible for the court to use the shorthand “ ‘ “plus penalty assessment” ’ ” procedure. (Voit, supra, 200 Cal.App.4th at p. 1373, italics omitted.) But the statutory basis and amount of each penalty assessment should have been listed in the abstract of judgment. (Hamed, supra, 221 Cal.App.4th at pp. 941-942.) Specifically, the abstract should have reflected the following seven mandatory penalty assessments that were in effect when defendant committed his crimes: (1) a 100 percent state penalty assessment (§ 1464, subd. (a)(1)); (2) a 20 percent state surcharge (§ 1465.7); (3) a 50 percent state court construction penalty (Gov. Code, § 70372); (4) a 70 percent additional penalty (Gov. Code, § 76000, subd. (a)(1)); (5) a 20 percent emergency medical services penalty (Gov. Code, former § 76000.5); (6) a 10 percent penalty for implementation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a 40 percent state-only DNA penalty (Gov. Code, § 76104.7). (See Hamed, supra, 221 Cal.App.4th at pp. 940-941.) The failure to itemize these assessments was error. (High, supra, 119 Cal.App.4th at p. 1200.) The parties agree on the bases for and the amounts of the penalty assessments that apply here. We will modify the judgment to reflect that required information. (Hamed, supra, 221 Cal.App.4th at pp. 940-941.)

III. Disposition

The judgment is modified to reflect the following penalty assessments attached to the $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5): (1) a $50 state penalty assessment (§ 1464, subd. (a)(1)); (2) a $10 state surcharge (§ 1465.7); (3) a $25 court construction penalty (Gov. Code, § 70372); (4) a $35 additional penalty (Gov. Code, § 76000, subd. (a)(1)); (5) a $10 penalty for emergency medical services (Gov. Code, former § 76000.5); (6) a $5 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a $20 state-only DNA penalty (Gov. Code, § 76104.7). The total amount of penalty assessments on the criminal laboratory analysis fee is $155.

The judgment is further modified to reflect the following penalty assessments attached to the $150 drug program fee (Health & Saf. Code, § 11372.7): (1) a $150 state penalty assessment (§ 1464, subd. (a)(1)); (2) a $30 state surcharge (§ 1465.7); (3) a $75 court construction penalty (Gov. Code, § 70372); (4) a $105 additional penalty (Gov. Code, § 76000, subd. (a)(1)); (5) a $30 penalty for emergency medical services (Gov. Code, former § 76000.5); (6) a $15 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a $60 state-only DNA penalty (Gov. Code, § 76104.7). The total amount of penalty assessments on the drug program fee is $465.

As modified, the judgment is affirmed.

The clerk of the trial court is directed to prepare an amended abstract of judgment that itemizes the amount of and statutory basis for each penalty assessment as shown above, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.