P. v. Cook

Filed 10/3/06 P. v. Cook CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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In case No. TM105678A, defendant Nikkol Cook entered a plea of no contest to possession of methamphetamine, a misdemeanor (Health & Saf. Code, § 11377, subd. (a)) and waived Proposition 36 drug treatment (Pen. Code, § 1210.1). In case No. TF032456A, defendant entered a no contest plea to receiving stolen property, as a misdemeanor (Pen. Code, § 496, subd. (a)), and a drug paraphernalia charge was dismissed. The court granted probation in each case conditioned in part on defendant serving 90 days in jail.

Defendant violated probation by failing to report to jail to serve the 90 days. The court reinstated probation.

In case No. TF032877A, defendant entered a negotiated plea of no contest to vehicle theft (Veh. Code, § 10851, subd. (a)) and evading an officer, as amended to a misdemeanor (Veh. Code, § 2800.1) in exchange for a promise that she would not be sent to state prison initially and that she would suffer no more than 12 months in jail as a condition of felony probation. The court imposed the low term of 16 months for vehicle theft, suspended execution of sentence and granted probation. It is unclear from the record on appeal, which includes only the clerk’s transcript of sentencing, whether the trial court sentenced defendant on the charge of misdemeanor evading arrest. Defendant was ordered to pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)) with a $20 surcharge, a $20 court security fee (Pen. Code, § 1465.8) and a $140 booking fee. According to the order of probation (since there is no reporter’s transcript of the sentencing hearing), the court also imposed an “addtl. $220 susp. purs. to 1202.4,” which either properly meant pursuant to Penal Code section 1202.44, a probation revocation restitution fine, or erroneously meant pursuant to Penal Code section 1202.45, a parole revocation restitution fine. The latter is inapplicable because defendant’s sentence did not at the time include a period of parole.

Defendant violated probation by failing to report to the probation officer. The court reinstated defendant on probation.

In case No. TF033223A, defendant entered a plea of guilty to vehicle theft. In case No. TF033241A, defendant entered a plea of guilty to receiving stolen property, that is, a motor vehicle (Pen. Code, § 496d, subd. (a)). Her new offenses constituted violations of probation in case Nos. TM105678A, TF032456A and TF032877A. She entered her pleas in the new cases in exchange for an agreement that she would not be sentenced to more than two years in state prison.

The court sentenced defendant to state prison for a term of two years as follows: in case No TF033241A, the midterm of two years for violation of Penal Code section 496d, subdivision (a); in case No. TF032877A, a concurrent 16 month term for vehicle theft; in case No. TF033223A, a concurrent two year term for vehicle theft; in case No. TM105678A, probation was terminated; and in case No. TF032456A, probation was terminated. Although the court orally imposed no fees or fines and awarded no presentence custody credit--and neither party objected--the abstract of judgment reveals the following: in case No. TF033241A, a $200 restitution fine, a $200 parole fine, a $20 surcharge, a $20 court security fee, and 91 days presentence custody credit composed of 61 actual days in custody and 30 days for good conduct; in case No. TF033223A, a $200 restitution fine, a $20 surcharge, both concurrent with that imposed in case No. TF033241A, no parole fine, no court security fee, a $72 booking fee, and 92 days presentence custody credit composed of 62 actual days in custody and 30 days for good conduct; and in case No. TF032877A, a $200 restitution fine, a $20 surcharge, a $140 booking fee, all previously ordered when granted probation, and 87 days presentence custody credit composed of 59 actual days in custody and 28 days for good conduct.

Defendant appeals in all of the foregoing cases. Her request for a certificate of probable cause (Pen. Code, § 1237.5) in case Nos. TF033241A and TF033223A was denied.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

We requested supplemental briefing on “[w]hether the matter should be remanded for the trial court to orally impose fees and fines and presentence custody credit.”

Initially, we resolve a jurisdictional issue noted by the Attorney General. In case No. TM105678A, the record reflects that the complaint charged defendant with misdemeanor possession of methamphetamine and that she was never charged with felony possession or any other felony. As such, this court has no appellate jurisdiction; we will transfer the case to the appellate division of the superior court. (People v. Nickerson (2005) 128 Cal.App.4th 33, 36-40 (Nickerson); People v. Shoup (2001) 89 Cal.App.4th 420, 421 (Shoup).)

The same result applies to case No. TF032456A. Because “a defendant is not ‘charged with a felony’ . . . until an information or indictment is filed or a complaint is certified to the superior court” (Nickerson, supra, 128 Cal.App.4th at p. 38), this court has no appellate jurisdiction. Although the complaint charged defendant with felony receiving stolen property and misdemeanor possession of drug paraphernalia, there was no preliminary hearing and defendant entered her plea to misdemeanor receiving stolen property. The fact that defendant was sentenced to state prison in other felony cases on the same date that the court terminated probation in case No. TF032456A does not matter. (Shoup, supra, 89 Cal.App.4th at p. 421.) We will likewise transfer case No. TF032456A to the superior court appellate division.

With respect to case No. TF032877A, the court imposed fees and fines when it originally granted probation but made no mention of fees or fines or even presentence custody credit when it sentenced defendant to state prison. The abstract, however, reflects the fees and fines previously ordered.

Defendant “finds no error as to fines and fees” previously ordered as conditions of probation and which survive the revocation of probation “and either need not be ordered at all or if ordered, done so with the caveat that they are the ones ordered as a condition of probation,” citing People v. Chambers (1998) 65 Cal.App.4th 819 [restitution fine imposed when probation granted survives revocation].

The Attorney General claims “nothing in the appellate record reflects that the fines and fees were not orally pronounced. To the contrary, it was the duty of the court to pronounce them orally, and regular performance of that duty is presumed. (Evid. Code, § 664.) It likewise must be presumed the clerk properly performed the ministerial duty to describe accurately what the court orally ordered, and the clerk’s minutes reflect the same fines and fees.”

The Attorney General also claims that the order granting probation was appealable and defendant cannot now challenge the fees and fines imposed. Further, the Attorney General claims that upon revocation of probation, the trial court had no discretion to impose anything other than what it had previously imposed and had jurisdiction only to order the previously imposed sentence into full force and effect. The only exceptions, the Attorney General notes, is that the $200 parole fine previously imposed erroneously included a $20 surcharge and the fines do not include mandatory penalty assessments.

The fees and fines are part of the sentence and must be orally pronounced in open court. (See Pen. Code, § 1193, subd. (a); see People v. Hong (1998) 64 Cal.App.4th 1071, 1076-1084.) The Attorney General recognizes this; his arguments suggesting that oral pronouncement was not required are not persuasive.

In case No. TF032877A, fees and fines had been previously ordered in connection with the initial grant of probation and the same survive upon a final revocation of probation but the record on appeal does not include an updated probation report with an accounting for those fees and fines. There is a reference in the probation report prepared for case No. TF033223A that defendant “currently owes the Revenue and Recovery Division $440 in Court and Probation fines and fees[] [and] [s]he has never made a payment toward this balance.” (Italics added.) There have been so many cases, including some misdemeanor matters, it is unclear what portion of the $440, if any, relates to case No. TF032877A.

In case Nos. TF033223A and TF033241A, the Attorney General concedes that the transcript of the sentencing hearing reflects that the court did not orally impose the fees and fines but argues “it is not impossible that the court orally pronounced the fines and fees in open court in the presence of [defendant] and her counsel at some other time“ (italics added) or that “the court directed the clerk’s notations regarding the fines and fees at some time and place other than in open court in [defendant’s] presence” but “[n]othing in the record suggests the possibility that a clerk would simply make up the entries.” The Attorney General argues defendant has shown no prejudice in that a lesser restitution fine could have been imposed. We disagree.

The court did not impose the restitution fine in either case No. TF033241A or case No. TF033223A. The People did not object to the court’s presumed determination that compelling and extraordinary reasons existed for not ordering the same and that defendant had no ability to pay. (People v. Tillman (2000) 22 Cal.4th 300; People v. Scott (1994) 9 Cal.4th 331, 353.) Thus, the abstract of judgment requires correction, striking the restitution fines in case Nos. TF033241A and TF033223A as well as the parole fine in case No. TF033241A and the $72 booking fee in case No. TF033223A. The trial court should have imposed the $20 court security fee in case Nos. TF033241A and TF033223A; unlike restitution fines which are discretionary, the court security fee is mandatory. The abstract should be amended accordingly to reflect a court security fee of $20 in case No. TF033223A. The abstract already reflects the court security fee of $20 in case No. TF033241A.

Prior to sentencing, the trial court must obtain a report reflecting the number of days defendant has been in custody and any challenge to the report is to be heard at sentencing. A trial court has a duty in imposing sentence to determine presentence custody credit and the abstract of judgment must reflect the number of days awarded. (Pen. Code, § 2900.5, subd. (d); Cal. Rules of Court, rule 4.310; People v. Mitchell (2001) 26 Cal.4th 181, 187-188.)

The Attorney General argues that there is no requirement that the trial court orally award presentence custody credit, claiming there is no statutory requirement and citing People v. Stowell (2003) 31 Cal.4th 1107, 1114-1117, which has nothing to do with an oral award of presentence custody credit but rather a probable cause finding under Penal Code section 1202.1, subdivision (e)(6) (HIV testing order). We reject the Attorney General’s argument as lacking merit.

The abstract reflects that the court awarded the following presentence custody credits: in case No. TF033241A, 91 days presentence custody credit composed of 61 actual days in custody and 30 days for conduct; in case No. TF033223A, 92 days presentence custody credit composed of 62 actual days in custody and 30 days for conduct; and in case No. TF032877A, 87 days presentence custody credit composed of 59 actual days in custody and 28 days for conduct.

The probation report prepared in connection with case No. TF033223A reflects that defendant had been in custody for 57 days, from the date of her arrest to the date of sentencing. The court made no oral award. The abstract reflects 62 rather than 57 actual days. No probation report with presentence custody credit recommendations was prepared in connection with case Nos. TF033241A or TF032877A. We will remand to the trial court for a determination of presentence custody credit.

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

Disposition

Jurisdiction in case Nos. TM105678A and TF032456A is transferred to the appellate division of the superior court. The judgment is modified, adding a $20 court security fee in case No. TF033223A. Case Nos. TF033241A, TF033223A and TF032877A are remanded for the trial court to calculate presentence custody credit. In case No. TF032877A, the trial court shall also determine whether any fines or fees previously imposed remain unpaid. The trial court is directed to prepare an amended abstract of judgment deleting the restitution/parole fines/booking fee in case Nos. TF033241A and TF033223A and adding a $20 court security fee in case No. TF033223A. In all other respects, the judgment is affirmed.

HULL , J.

We concur:

SIMS , Acting P.J.

CANTIL-SAKAUYE , J.

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