APPEAL from the Superior Court of Riverside County. Byron K. McMillan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. (Super. Ct. No. RIF135538).
The opinion of the court was delivered by: Gaut J.
CERTIFIED FOR PUBLICATION
Defendant Jeffrey Tarris appeals from judgment entered following jury convictions for unlawful disposal of hazardous waste (Health & Saf. Code, § 25189.5, subd. (b)*fn1; count 1), unlawful transport of hazardous waste (Health & Saf. Code, § 25189.5, subd. (c); count 2), and littering in commercial quantities, a misdemeanor (Pen. Code, § 374.3, subd. (h)(1); count 3).
The trial court suspended defendant's sentence and placed him on 36 months probation, conditional upon defendant serving 90 days in county jail. Defendant was also assessed court security fees, $3,560 under Penal Code section 374.3 in fines and penalty assessments, and $35,600 in fines and penalty assessments under Health and Safety Code section 25189.5, subdivision (e). In addition, defendant was ordered to pay a restitution fee of $8,532.15 to the Riverside County Department of Environmental Health, Hazardous Materials Management Division (HMMD) and $1,643.37 to the Riverside County Department of Transportation. The court also imposed an $800 restitution fine under Penal Code section 1202.4, subdivision (b), and a probation revocation restitution fine under Penal Code section 1202.44, which was stayed.
Defendant contends the evidence was insufficient to support his unlawful transport conviction (count 2) and the trial court did not have authority to require defendant to pay a restitution fee of $8,532.15 for the costs of investigation. In addition, defendant asserts remand is necessary because the trial judge failed to provide a breakdown of the fees, fines and penalty assessments imposed on each count.
After defendant filed his opening brief, the trial court provided a breakdown of the fees, fines and penalty assessments imposed. As to counts 1 and 2, the court assessed a base fine of $4,675.50, plus $13,124.50 in penalties and assessments as to each count.
After the court provided the breakdown of fines, defendant filed a supplemental appellate brief with this court, arguing that under Penal Code section 654, the court was barred from imposing restitution fines on both the disposal count (count 1) and the transport count (count 2). Defendant also argues the trial court improperly imposed excessive court security fees and a $30 court construction fund fee.
We conclude there was sufficient evidence to support defendant's convictions and the trial court did not abuse its discretion in ordering defendant to pay HMMD for the costs of investigation as a condition of probation.
The trial court erred, however, in imposing restitution fines under Health and Safety Code section 25189.5, subdivision (e), as to both counts 1 and 2, without staying the fine as to one of the two counts. Imposing duplicate fines constituted multiple punishment for the same act or course of conduct in violation of Penal Code section 654. In addition, the court erred in imposing excessive court security fees and in assessing a court construction fee. We affirm defendant's convictions but reverse his sentence, and order the matter remanded for resentencing.
Defendant leased space to six families on his undeveloped parcel of land off Agate Street in Riverside. The families lived on the land in motor homes or trailers. In May 2006, one of defendant's tenants, Martha Sanders, went on vacation out of state. Her live-in boyfriend, Herdo Ramirez, also known as Jerry, remained at Martha's motor home.
Jerry kept outside Martha's home a metal shelving unit, where Jerry stored cans of paints and other chemicals.. Martha explained at trial that Jerry "scrapped." He collected and saved items that could be used, sold or given away. He kept containers of chemicals and paints on metal shelves outside her motor home.
On June 13, 2006, defendant asked a county road crew working in the area if the road crew was going to be cleaning up Agate Street. The crew chief told defendant the crew would clear debris only if it was on county property. At that time the crew chief was aware there were only a couple of items that needed to be cleared. He had not seen any hazardous waste there.
Later, at the end of that day, the road crew returned to the same area by the water channel, off the side of Agate Street, and discovered there was a truckload of trash. Because there was too much to clear, the crew decided to clear the trash the next day.
Martha's brother, Gilbert Sanders, Sr. (Gilbert) and Gilbert's son, Gilbert Sanders, Jr. (Junior), who also lived on defendant's property, testified that on June 14, 2006, they saw defendant use his Bobcat loader to move Jerry and Martha's possessions off defendant's land. Gilbert and Junior saw defendant driving his Bobcat down a dirt road off defendant's property toward Agate. Junior also noticed property belonging to Martha on the side of Agate Street as well. The pile of trash had increased from the day before. There was a camper shell, which defendant had loaded up with Jerry and Martha's possessions and transported on the Bobcat to the side of the road. The trash on the side of the road also included Jerry's chicken coop, doghouse, car battery, and the metal shelving unit with paint and chemicals.
On June 14, 2006, the Riverside County Transportation Department received an anonymous call reporting that trash was blocking Agate Street. In response, county assistant district road maintenance supervisor, Jeffrey Lewellen, went out to the site that same day. He found a pile of trash, including containers of paint and chemicals, dumped in the road, blocking part of a lane. Lewellen called Kelly Winters at Riverside County Department of Environmental Health.
Hazardous materials management specialist, Kelly Winters, testified that a county road department supervisor called him and told him about the pile of trash (15 to 20 cubic yards of trash and waste), which appeared to include hazardous waste. Winters went out to the site. The debris was located on the side of the road, about 10 feet from a water channel. The debris included oil-based and latex paints, resin hardener, carpet cement, two five-gallon containers of waste oil, rust primer, pipe cement, and lock tight cement. Some of the containers were unlabeled and some had warning labels. Some of the contents in the containers were tested and found to contain hazardous waste.
Riverside County District Attorney investigator, Joseph Asbury, who was assigned to the environmental crimes unit, testified that on June 14, 2006, he responded to a call from Winters, requesting Asbury to come out to Agate Street. Asbury observed the pile of debris.
Asbury spoke to defendant that same day. Asbury explained to him that he was investigating the illegal dumping of trash and hazardous waste on the roadside and was curious as to how the trash got there. Defendant said he had moved the trash off his property onto his neighbor's adjacent property. Defendant was in the process of cleaning up his property in response to county code enforcement telling him to remove the trash from his property.
Defendant told Asbury on June 14, 2006, that he had talked to someone from the county road department the day before about removing trash left on the side of the road. The road department crew said they were going to remove the trash. Defendant asked about also removing the trash on his neighbor's property. The road crew said they could not remove trash from private property. As a consequence, defendant moved the trash on his neighbor's property to the roadway so the county would pick it up. Defendant neither admitted to Asbury nor denied dumping the hazardous waste.
Defendant testified that Martha told him she intended to stay in Kansas and hoped Jerry would join her. Defendant decided to evict Martha and Jerry. At the beginning of June, after defendant was cited for code enforcement violations, defendant told all his tenants, including Jerry, to move off the property. Defendant told Jerry he needed to remove his property as soon as possible. Jerry said he would take care of ...