Filed 2/7/22 P. v. Martinez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appointed counsel for appellant Jacob Andrew Martinez has filed a brief asking this court to review the record in two cases to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Martinez was advised of the right to file a supplemental brief but has not responded.

Our review of the record discloses errors that require correction. We conclude any unpaid portion of the criminal justice fee is unenforceable and uncollectible as of July 1, 2021, and must be vacated. We will modify the judgment to vacate the criminal justice administration fee and order a correction to a minute order. As modified, we affirm the judgment.

1. FACTS AND PROCEDURAL HISTORY

On January 26, 2019, Martinez punched the minor victim (his younger sister) and attempted to choke her. Martinez’s sister believed he was going to kill her.[1] This incident resulted in the charges filed in case No. C1902735.

Sometime between May 18 and May 22, 2018, Martinez attempted to sell a gun that another person had allegedly used to commit two murders. Martinez was not involved in the murders, but he knew the gun “had bodies on it.” This incident resulted in the charges filed in case No. C1907724.

In case No. C1902735, Martinez was charged by a complaint filed on February 13, 2019, with causing or permitting a child to suffer and inflicting pain and suffering on a child (Pen. Code, § 273a, subd. (a); count 1).[2] The complaint also alleged that Martinez had previously been convicted of a violent or serious offense (strike offense) (§ 1170.12).

In case No. C1907724, Martinez was charged by a complaint filed on April 18, 2019, with attempted premeditated murder (§§ 664, 187, subd. (a), 189; count 7), shooting at an occupied motor vehicle (§ 246; count 8), willfully discharging a firearm from a vehicle at a person not an occupant of a motor vehicle (§ 26100, subd. (c); count 9), and accessory (§ 32; count 10). In connection with count 7, the complaint included the allegation that Martinez had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). In connection with count 8, the complaint included the allegation that Martinez had personally used a firearm (§ 12022.5, subd. (a)). The complaint also charged another individual, Jose Benitez Sanchez, with a number of crimes. The charges against Sanchez are not at issue in this appeal.

On December 14, 2020, Martinez initialed and signed a waiver of rights and plea form in case No. C1902735. He agreed to plead no contest to count 1 (child endangerment) and to serve a term of four years in state prison. The district attorney agreed he would not seek a finding that Martinez had violated his probation in a third case, which is not at issue here. At a court hearing on December 14, 2020, Martinez pleaded no contest to count 1 and admitted the strike prior.

On January 4, 2021, Martinez initialed and signed a waiver of rights and plea form in case No. C1907724. He agreed to plead no contest to count 10 (accessory) in exchange for an eight-month sentence to be served consecutively to the sentence in case No. C1902735. The district attorney agreed to the dismissal of counts 7, 8, and 9, and any associated allegations. At a court hearing on January 4, 2021, Martinez pleaded no contest to count 10.

On February 4, 2021, the trial court sentenced Martinez both cases. It denied probation in both matters. In case No. C1902735, it sentenced him to a term of four years in state prison and awarded custody credits of 1,428 days. The court issued a protective order protecting the victim that allowed Martinez to have peaceful contact with her. (§ 136.2.) With respect to fines and fees, the trial court ordered Martinez to pay a $200 fine (§ 1202.4, subd. (b)), a suspended $200 fine (§ 1202.45), a court operations assessment of $40 (§ 1465.8, subd. (a)(1)), and a court facilities assessment of $30 (Gov. Code, § 70373). It ordered a criminal justice administration fee of $129.75 (Gov. Code, §§ 29550, 29550.1, 29550.2).

In case No. C1907724, the trial court sentenced Martinez to a term of eight months in prison consecutive to the sentence in case No. C1902735 and awarded no custody credits. With respect to fines and fees, the trial court ordered Martinez to pay a $200 fine (§ 1202.4, subd. (b)), a suspended $200 fine (§ 1202.45), a court operations assessment of $40 (§ 1465.8, subd. (a)(1)), and a court facilities assessment of $30 (Gov. Code, § 70373). The court dismissed counts 7, 8, and 9, and any associated allegations. Although the minute order and abstract of judgment indicate that the court imposed a $129.75 criminal justice administration fee in this docket, the trial court did not include this order in its oral pronouncement of judgment. The court found that Martinez did not have an ability to pay fines and fees and stayed them pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157.

The court set a future date for a restitution hearing in case No. C1907724.

Martinez timely appealed both judgments.[3]

ii. ANALYSIS

“On September 18, 2020, the Governor signed Assembly Bill [No.] 1869 . . . [¶] . . . [which] abrogated the authority to impose and collect 23 different administrative fees, including, as relevant here, . . . the criminal justice administration fee.” (People v. Greeley (2021) 70 Cal.App.5th 609, 625 (Greeley).) Assembly Bill [No.] 1869 added section 6111 to the Government Code. (Stats. 2020, ch. 92, § 11.) “Relevant to the criminal justice administration fee, Government Code section 6111 provides, ‘On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to [Government Code] [s]ection 27712, subdivision (c) or (f) of [Government Code] [s]ection 29550, and [Government Code] [s]ections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.’ ” (Greeley, at pp. 625–626.)

We invited supplemental briefing on the effect of Government Code section 6111 on this appeal. In his supplemental letter brief, Martinez requests that we order the trial court to amend the abstract of judgment to vacate the portion of the $129.75 criminal justice administration fee imposed at his sentencing under Government Code section 29550 et seq. The Attorney General concedes that Government Code section 6111 applies here and has no objection to this court striking the criminal justice administration fee.

We decide that Government Code section 6111 applies to this matter, the unpaid balance of the criminal justice administration fee is unenforceable and uncollectible, and the portion of the judgment imposing that fee must be vacated. (See Greeley, supra, 70 Cal.App.5th at pp. 626–627; People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953–954.) Thus, we will modify the judgment in case No. C1902735 as required by the new law and direct the trial court to prepare an amended abstract of judgment.

Further, the February 4, 2021 minute order in case No. C1907724 incorrectly states the trial court imposed the criminal justice administration fee. Where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls, and we may correct this clerical error on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186.) We order correction of the sentencing minute order in case No. C1907724 to reflect that the trial court did not impose the criminal justice administration fee in that case. We further direct the trial court to prepare an amended abstract of judgment reflecting this correction.

We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to Martinez. We therefore affirm the judgments.

disposition

In case No. C1902735, the portion of the criminal justice administration fee that remained unpaid as of July 1, 2021, is vacated. In case No. C1907724, the trial court is directed to correct the February 4, 2021 minute order to reflect that the trial court did not impose the criminal justice administration fee. The trial court is directed to prepare an amended abstract of judgment for both cases and provide a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgments are affirmed.

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Danner, Acting P.J.

WE CONCUR:

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Lie, J.

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Wilson, J.

H048905

People v. Martinez

[1] These facts are drawn from the probation report prepared for Martinez’s sentencing.

[2] Unspecified statutory references are to the Penal Code.

[3] This court assigned a single docket number to both appeals.