Filed 9/25/17 P. v. Brewer CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
FLOYD ERNEST BREWER, JR.,
Defendant and Appellant.
|
F073704
(Super. Ct. No. 15CMS2588)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Michael J. Reinhart, Judge.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Floyd Ernest Brewer, Jr., contends on appeal that the trial court imposed an unauthorized fine and failed to itemize and provide statutory authority for each fine it imposed. The People concede and we agree. Accordingly, we remand to the trial court with directions to properly itemize and authorize the fines on the abstract of judgment and minute order.
PROCEDURAL SUMMARY
On February 2, 2016, defendant pled no contest to burglary (Pen. Code, § 459;[1] count 1) with an allegation that a person was present (§ 667.5, subd. (c)) and driving under the influence (Veh. Code, § 23152, subd. (e); count 5).
On March 17, 2016, the trial court sentenced defendant to four years in prison on count 1 and 180 days in jail on count 5, to be served concurrently to the term in count 1. The court asked the parties:
“Now as to fines and fees, both sides waive a specific citation of the code section, breakdowns the fines and fees?”
Both counsel answered affirmatively. The court then stated:
“As to each count, there’s a $40 court operations fee, $30 court facilities funding fee, penal fine in the amount of $200, with penalties and assessments that comes out to $780; $300 state restitution fine, a second separate $300 state restitution fine that’s stayed pending successful completion of probation. [¶] … [¶] Now as to [victim] restitution, the Probation Department indicates the sum of $2,100.”
The abstract of judgment filed on March 28, 2016, reflects an $80 court security fee (§ 1465.8); a $60 criminal conviction assessment (Gov. Code, § 70373); two matching $1,200 restitution fines (§§ 1202.4, 1202.45); a $390 fine pursuant to section 1202.5; and a $2,100 victim restitution fine (§ 1202.4, subd. (f)).
On September 23, 2016, appellate counsel wrote a letter to the trial court, requesting that it modify the abstract of judgment to reflect the $300 restitution fines orally imposed by the court at sentencing, and that it recalculate the $390 fine imposed pursuant to section 1202.5 if the fine was intended, or delete it if it was not. (See § 1237.2.)
On October 20, 2016, the trial court filed an amended abstract of judgment, reflecting an $80 court security fee (§ 1465.8); a $60 criminal conviction assessment (Gov. Code, § 70373); two matching $300 restitution fines; a $780 fine pursuant to section 1202.5; and a $2,100 victim restitution fine (§ 1202.4, subd. (f)).
On November 15, 2016, appellate counsel wrote a second letter to the trial court, recognizing the corrected restitution fines, but again arguing that the fine under section 1202.5, now increased to $780, was still not authorized under that statute. Counsel again requested that the trial court recalculate or delete the fine.
On December 6, 2016, the clerk of the trial court responded, informing counsel that no further amendment would be made to the abstract. The clerk explained that the abstract correctly reflected the fine imposed by the trial court at sentencing:
“The $200.00 penal fine referred to by the court at line 8 of page 13 of the [reporter’s transcript] was imposed pursuant to … Section 672. Accordingly, the $780.00 fine in Paragraph 5 of the Amended Abstract of Judgment is a reflection of the imposed penal fine plus applicable penalties and assessments. Entry of the total amount of the fine at Paragraph 5 of the Amended Abstract of Judgment is consistent with the court’s policy for how felony abstracts of judgment should be completed.” (Fn. omitted.)
The clerk noted in a footnote: “It appears that the trial court may have failed to impose the fine mandated by … Section 1202.5 for violations of … Section 459. [Citation.] The omission of this fine amount from the Amended Abstract of Judgment is, however, consistent with the sentence announced by Judge Reinhart on March 17, 2016.”
On January 7, 2017, appellate counsel wrote a third letter to the trial court, reiterating that the $780 fine imposed pursuant to section 1202.5 was unauthorized by that statute and had not been orally imposed at sentencing.[2] Counsel informed the court it had the duty to identify the statutory bases for all fines, fees, and penalties imposed, and noted that defendant could not appeal the issue until the trial court addressed it.
The trial court did not respond to this third letter.
On February 3, 2017, after this diligent effort by appellate counsel, followed by this ineffective effort by the trial court, counsel filed defendant’s opening brief. The People correctly concede.
DISCUSSION
Although the parties agreed at sentencing to forego a specific citation of the statute sections supporting the fines and fees, the trial court was nevertheless required to provide a detailed recitation of them. The court in People v. High (2004) 119 Cal.App.4th 1192 explained:
“Although we recognize that 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. (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [laboratory fee]; People v. Hong (1998) 64 Cal.App.4th 1071, 1080 [restitution fine].) The abstract of judgment form used here, Judicial Council form CR-290 (rev. Jan.1, 2003) provides a number of lines for ‘other’ financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. (Hong, supra, 64 Cal.App.4th at pp. 1078-1079.) At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (Pen. Code, § 1205, subd. (c).) Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, such as the laboratory fee imposed under Health and Safety Code section 11372.5, the fee must be included in the abstract of judgment. (Sanchez, supra, 64 Cal.App.4th at p. 1332.) As the Sanchez court explained, ‘Just as a “ ‘[r]ose is a rose is a rose is a rose [ ]’ … [citations],” a fine is a fine is a fine is a fine and is part of the judgment which the abstract must “ ‘digest or summarize.’ ” [Citations.]’ (Sanchez, supra, 64 Cal.App.4th at p. 1332.)
“ ‘Courts may correct clerical errors at any time, and appellate courts … that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.’ (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we shall direct the trial court to correct the cited clerical errors.” (People v. High, supra, 119 Cal.App.4th at p. 1200.)
The court directed the trial court to “separately list, with the statutory basis, all fines, fees and penalties imposed on each count.” (People v. High, supra, 119 Cal.App.4th at p. 1201.)
In the present case, both the abstract of judgment and the minute order fail to properly document the trial court’s pronouncement of judgment. The statutory bases for the fines and fees are not all designated. We now order the trial court to correct these clerical errors and itemize the fines, fees and penalties and the statutory basis therefor.
DISPOSITION
The matter is remanded with directions to the trial court to separately list, with the correct statutory basis, all fines, fees, and penalties imposed on each count. The court is directed to modify the abstract of judgment and the sentencing minute order, and to forward certified copies of each to the appropriate authorities. As so modified, the judgment is affirmed.
* Before Gomes, Acting P.J., Meehan, J. and Black, J.†
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article IV, section 6 of the California Constitution.
[1] All statutory references are to the Penal Code unless otherwise noted.
[2] This letter was dated January 7, 2016, but because it was the third letter from counsel, we presume the correct date was January 7, 2017.
