P.
v. Cushman















Filed
1/25/13 P. v. Cushman 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NOT
TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

(Tehama)

----






>

THE PEOPLE, Plaintiff and Respondent, v. JACOBY DONELL CUSHMAN, Defendant and Appellant.

C069939 (Super. Ct. Nos. NCR81786, NCR81802)

On appeal, defendant Jacoby Donell
Cushman contends that (1) the prospective application of the Criminal
Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15,
§ 482) violates his right to equal
protection of the law, and (2) the trial court did not determine
defendant’s ability to pay various fines and fees or specify the statutory
basis for each fine, fee, and assessment.
Following the California Supreme Court’s recent decision in People v.
Lara (2012) 54 Cal.4th 896 at page 906, footnote 9 (>Lara), we reject defendant’s equal
protection contention. With respect to
the fines and fees imposed upon defendant, we remand for a new hearing on fines
and fees to allow the trial court to determine ability to pay and to itemize
all fines, fees, and assessments. In all
other respects, we affirm the judgment.

BACKGROUNDhref="#_ftn1" name="_ftnref1" title="">[1]

Defendant committed his offenses on April 27, 2011, and May 18, 2011, by entering
an occupied building with the intent to commit larceny and entering an
inhabited dwelling with the intent to commit larceny.

Defendant pled guilty to first
degree burglary (Pen. Code, § 459)href="#_ftn2" name="_ftnref2" title="">[2] in case
No. NCR81786 and second degree burglary in case No. NCR81802. He was sentenced on November 7, 2011. The trial court imposed a stipulated sentence
of four years and eight months in state prison and awarded 259 days of
presentence credit (173 actual and 86 conduct).


The trial court sentenced defendant
under the September 28, 2010, revision of
the presentence credit law. Under that
version, a defendant with a current or prior serious or violent felony
conviction was entitled to two days of conduct credit for every four days of
presentence custody. (Former
§§ 2933, 4019.) Defendant’s
conviction for first degree burglary
is a serious felony. (§ 1192.7,
subd. (c)(18).)

DISCUSSION

>I

>Prospective
Application of Section 4019

The Realignment Act amended section
4019, entitling defendants to two days of conduct credit for every two days of
presentence custody. (§ 4019,
subds. (b), (c), (f).) The award of
credits is not reduced by a defendant’s prior conviction for a serious or
violent felony. This provision applies
prospectively to defendants serving presentence incarceration for crimes
committed on or after October 1,
2011. (§ 4019,
subd. (h).)

Defendant
argues the prospective application of section 4019 violates his right to equal
protection under the law. This argument
was rejected by the California Supreme Court
in Lara. (Lara, supra, 54 Cal.4th at p. 906, fn. 9.)

In Lara, the Supreme Court explained its rejection of defendant’s
equal protection argument as follows:
“As we there [People v. Brown
(2012) 54 Cal.4th 314, 328-330] explained, ‘“[t]he obvious purpose”’ of a law
increasing credits ‘“is to affect the behavior of inmates by providing them
with incentives to engage in productive work and maintain good conduct while
they are in prison.” [Citation.] “[T]his incentive purpose has no meaning if
an inmate is unaware of it. The very
concept demands prospective application.”’
(Brown, at p. 329,
quoting In re Strick (1983) 148
Cal.App.3d 906, 913.) Accordingly,
prisoners who serve their pretrial detention before such a law’s effective
date, and those who serve their detention thereafter, are not similarly
situated with respect to the law’s purpose.
(Brown, at
pp. 328-329.)” (>Lara, supra, at p. 906,
fn. 9.)

Accordingly, defendant is not
entitled to the additional accrual of conduct credits under the October 1, 2011, amendment
to section 4019.

>II

>Fines and
Fees

Defendant contends the case must be
remanded for the trial court to determine if defendant had the ability to pay
the theft related offense fine
(§ 1202.5), whether extraordinary and compelling reasons existed that
justify waiving the restitution and parole revocation fines (§§ 1202.4,
1202.45), and to itemize the various fines, fees, and assessments. We agree.

The probation report proposed
identical fines, fees, and assessments for both cases, listed as follows: (1) a $400 restitution fine and a stayed
parole revocation fine of the same amount; (2) a theft-related offense
fine of $36, consisting of a $10 base fine, a $2 court surcharge (Gov. Code,
§ 70373, subd. (a)), a $5 court facilities construction fund
assessment (Gov. Code, § 70372, subd. (a)), a $10 state penalty
assessment (§ 1464), a $7 county penalty assessment (Gov. Code,
§ 76000), and two $1 DNA charges (Gov. Code, §§ 76104.6, 76104.7);
(3) a $35 conviction assessment (Gov. Code, § 70373); and (4) a
$40 security fee (§ 1465.8).

At the sentencing hearing, the trial
court asked defense counsel: “Waive the
breakdown of the fines and fees on the Abstract?” Defense counsel agreed to the waiver. The minute order does not identify any fines,
fees, or assessments, but the abstract lists $400 restitution and parole
revocation fines imposed in case Nos. NCR81786 and NCR81802, $36
theft-related offense fines in each case with no breakdown of the assessments,
an $80 court security fee, and a $70 criminal conviction assessment.

We conclude defendant’s waiver of
the fines and fees does not satisfy the trial court’s obligation to identify
each fine and fee at sentencing and specify the statutory bases for all fines,
fees, and assessments imposed upon defendant.
Here, the trial court mentioned fines and fees generally, but did not
specify the type or amount of the fines and fees to be imposed upon
defendant. The trial court’s single
reference to fines and fees did not incorporate the probation report by
reference. The minute order did not
identify any fines, fees, or assessments.
The abstract of judgment does not include a breakdown of the
theft-related offense fines of $36 in each case, or the statutory basis for
each breakdown amount.

As we explained in >People v. High (2004) 119
Cal.App.4th 1192 at page 1200, at sentencing, the trial court must
provide a “detailed recitation of all the fees, fines and penalties on
the record,” including their statutory bases.
All of these fines and fees must be set forth in the abstract of
judgment. (Ibid.) In High, we also
explained, “the inclusion of all fines and fees in the abstract may assist
state and local agencies in their collection efforts. [Citation.]”
(Ibid.) Since defendant cannot waive a requirement
that benefits another party, the waiver did not relieve the trial court from
its obligation to list every fine, fee, and assessment in the abstract of
judgment.

Further, reciting the fines and fees
at the judgment notifies the defendant of the financial obligations of his or
her conviction, provides a record for review, and allows defendant the
opportunity to contest any fines and fees he or she believes should not be
imposed. (See, e.g., §§ 1202.5,
subd. (a) [theft fine contingent on defendant’s ability to pay]; 1202.4,
subd. (b) [court may decline restitution fine for compelling and
extraordinary reasons].)

Accordingly, we must remand the case
to the trial court for it to set forth the fines, fees, and assessments imposed
upon defendant, provide defendant the opportunity to contest them, and to
identify and specify the statutory bases for all fines, fees, and assessments
imposed upon defendant.

DISPOSITION

The case is remanded for
resentencing limited to the imposition of fines, fees, and assessments. At that hearing, defendant may contest any
fine, fee, or assessment so imposed. As
modified, the judgment is affirmed. The
trial court shall prepare an amended abstract of judgment identifying and
specifying the statutory basis for each fine, fee, and assessment imposed upon
defendant and forward a certified copy of the amended abstract of judgment to
the Department of Corrections and
Rehabilitation.







HOCH , J.







We concur:







HULL , Acting P. J.







MAURO , J.