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The People v. Aydalys Ortiz

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento


May 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
AYDALYS ORTIZ, DEFENDANT AND APPELLANT.

Super. Ct. No. 10F02929

The opinion of the court was delivered by: Mauro ,j.

P. v. Ortiz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Aydalys Ortiz entered a negotiated plea of no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378; count one) in exchange for dismissal of the remaining count. The trial court granted probation for a term of five years subject to certain terms and conditions, including a $200 restitution fine (Pen. Code, § 1202.4), a $30 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), and a $30 court facility fee (Gov. Code, § 70373).

Defendant appeals. She contends (1) while the security fee and the facility fee are mandatory, the trial court erred in imposing them as conditions of probation, and (2) the clerk's minute order of probation includes fees and fines which were not orally imposed by the trial court. We agree that the security fee and facility fee could not be imposed as conditions of probation but are properly imposed as a separate order. We will modify the judgment to include the mandatory fees and fines omitted when the trial court orally granted probation.

BACKGROUND

Our summary of the applicable background is appropriately limited given defendant's contentions on appeal. At sentencing, defendant's attorney objected that the laboratory fee and assessments, the drug program fee and assessments, the security fee, and the facility fee were improper conditions of probation. Defendant's attorney also requested minimum fees and fines. Defendant stated she was unemployed.

In granting probation, the trial court imposed a restitution fine of $200, "suspend[ed] the laboratory fee fine and the drug program fee pending successful completion of probation," and imposed a $30 security fee and a $30 facility fee. The trial court stated, "I'm not going to impose the mandatory main jail booking fee, nor the classification fee." Defendant confirmed that she understood and accepted the terms and conditions of probation. The trial court advised defendant if she violated "any of those" probation could be revoked and she could be sentenced to state prison and/or fined.

The clerk's formal minute order and order of probation also included a $200 probation revocation restitution fine (Pen. Code, § 1202.44) which was stayed and became effective upon revocation of probation. The minute order included the $50 lab fee and assessments and the $150 drug program fee and assessments, both of which were suspended pending successful completion of probation.

I DISCUSSION

Defendant first contends that the trial court erred in imposing the security fee and facility fee as conditions of probation. The People concede this point.

In People v. Pacheco (2010) 187 Cal.App.4th 1392, disapproved on other grounds in People v. McCullough (2011) 193 Cal.App.4th 864, 871, the court held it was error to impose a court security fee (Pen. Code, § 1465.8) as a condition of probation. The court in Pacheco determined that the court security fee imposed as a "condition of probation was unauthorized because like probation costs, this fee is collateral to [the defendant's] crimes and punishment and as such, its payment may not be made a condition of probation. [Citations.] Certain fines such as those relating to restitution, for example, may by statute be imposed as conditions of probation, but the court security fee is not one of them. [Citations.] One reason for the distinction between fines that may be imposed as probation conditions and those that may not is that probation 'should be oriented towards rehabilitation of the defendant and not toward the financing of the machinery of criminal justice.' [Citations.] An equally compelling reason for the distinction is that a defendant may be imprisoned for violating a probation condition, but not for violating an order to pay costs and fees. [Citation.] The non-punitive purpose of the court security fee squarely places it among those fines and fees that are collateral to the crime and the consequent punishment for its commission." (Id. at pp. 1402-1403.) The court in Pacheco modified the order of probation to delete the fee as a condition of probation, but affirmed the fee as an order separate and apart from the conditions of probation. (Id. at pp. 1402-1404.)

The foregoing analysis also applies to the court facility fee. (Gov. Code, § 70373.)

II In the trial court's oral pronouncement of sentence, it suspended the lab fee and drug program fee. We interpret this to mean that those fees were imposed but suspended while defendant is on probation. The written order of probation, however, attached additional assessments to the suspended fees and also added a probation revocation restitution fine.

Defendant contends the subsequently added assessments and fine must be stricken. She claims she had no opportunity to address the propriety or the amount of these fines.

Defendant is correct that a minute order cannot add to the oral pronouncement of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [oral pronouncement of sentence is controlling over the written minute order or abstract of judgment]; People v. Zackery (2007) 147 Cal.App.4th 380, 387-389 ["[t]he clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment"]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [same].) However, where, as here, the probation revocation restitution fine and assessments attached to the suspended lab fee and drug program fee are mandatory, any errors in pronouncement may be corrected on appeal.

Section 1202.44 provides: "In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. Probation revocation restitution fines shall be deposited in the Restitution Fund in the State Treasury."

The trial court imposed a $200 restitution fine but failed to impose a probation revocation restitution fine in the same amount. We may correct the trial court's omission of the mandatory fine. (§ 1202.44; see People v. Rodriguez (2000) 80 Cal.App.4th 372, 374 [mandatory parole revocation restitution fine].) In imposing but suspending the lab fee and drug program fee, the trial court failed to impose mandatory assessments which may likewise be corrected on appeal. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.)

In addition, we will correct the amount of, and the statutory authority for, certain assessments, as set forth in the disposition.

DISPOSITION

The judgment is modified as follows:

The $30 court security fee and the $30 court facility fee are deleted as conditions of probation, but those fees are imposed as separate orders.

The assessments on the $50 lab fee are modified to provide for a $50 state penalty assessment, $35 county penalty assessment, $5 DNA implementation fee, $15 DNA fee (Gov. Code, § 76104.7 [$3 for every $10]), $25 state court construction penalty (Gov. Code, § 70372), and $10 state surcharge.

The assessments on the $150 drug program fee are modified to provide for a $150 state penalty assessment (Pen. Code, § 1464 [$10 for every $10]), $105 county penalty assessment (Gov. Code, § 76000 [$7 for every $10]), $15 DNA implementation fee (Gov. Code, § 76104.6 [$1 for every $10]), $45 DNA fee (Gov. Code, § 76104.7 [$3 for every $10]), $75 state court construction penalty (Gov. Code, § 70372 [$5 for every $10]), and $30 state surcharge (Pen. Code, § 1465.7 [20 percent of basefine]).

As modified, the judgment is affirmed.

We concur: RAYE , P.J. BUTZ ,J.

20110512

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