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The People v. Jerome Marvin Hunter

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


June 29, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JEROME MARVIN HUNTER, DEFENDANT AND APPELLANT.

(Super. Ct. No. 05F08520)

The opinion of the court was delivered by: Hull, J.

P. v. Hunter

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After his probation was revoked, defendant Jerome Marvin Hunter was sentenced to four years in state prison for assault with intent to commit rape (Pen. Code, § 220; undesignated statutory references that follow are to the Penal Code). He appeals, claiming that the trial court committed error in imposing various fines and fees against him. We strike the improper fines and fees and modify the judgment accordingly.

FACTS AND PROCEEDINGS

On June 8, 2006, pursuant to a plea bargain, defendant pleaded no contest to assault with intent to commit rape. On July 6, 2006, imposition of sentence was suspended and defendant was placed on probation for five years with one year of county jail time. The court further ordered that defendant's probation include conditions specified in the probation officer's report. As pertinent here, those conditions included: (1) a $200 restitution fine pursuant to section 1202.4; (2) an additional $200 restitution fine pursuant to section 1202.44, stayed pending revocation of probation; (3) a $20 court security fee pursuant to section 1465.8, subdivision (a)(1); (4) a $208.43 main jail booking fee pursuant to Government Code section 29550.2; and (5) a $24.09 main jail classification fee pursuant to Government Code section 29550.2.

On March 12, 2010, after a contested hearing, the court found that defendant committed several probation violations and revoked defendant's probation. That same day, defendant waived referral to the probation department and the court sentenced defendant to the middle term of four years. During the oral pronouncement of judgment, the court ordered that defendant "pay a restitution fine of $200 pursuant to Penal Code Section 1202.4." The court further stated that there are other "miscellaneous fees and surcharges, and those would be imposed as per standard practice, and they will be reflected in the order."

The order to which the trial court referred appears to be the minute order dated March 12, 2010. That minute order delineates the following fines and fees: (1) a $200 restitution fine pursuant to section 1202.4; (2) an additional $200 restitution fine pursuant to section 1202.45, suspended pending revocation of parole; (3) a $20 court security fee pursuant to section 1465.8; (4) a $30 criminal conviction assessment fee pursuant to Government Code section 70373; (5) a $270.17 main jail booking fee; and (6) a $51.34 main jail classification fee. All these fines and fees were reflected in the abstract of judgment dated March 12, 2010.

On appeal, defendant raises several challenges to the fines and fees the trial court imposed on March 12, 2010, upon revocation of his probation. We consider each fine/fee in turn.

DISCUSSION

I

Restitution Fine

The trial court initially imposed a $200 restitution fine under section 1204.4 in connection with defendant's grant of probation. The trial court then imposed a second $200 restitution fine under section 1202.4 upon the revocation of defendant's probation. Defendant challenges the second restitution fine. Defendant cites our decisions in People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers) and People v. Arata (2004) 118 Cal.App.4th 195 (Arata) for the proposition that a restitution fine imposed at probation survives the revocation of probation.

In his briefing, defendant discusses the "second restitution fine" to which he objects without specifying the statutory basis for the fine. Given his reliance on Chambers and Arata, however, we construe defendant's challenge to the "second restitution fine" as directed at the second restitution fine imposed under section 1204.4 (as both Chambers and Arata dealt with restitution fines under this section). We do not construe defendant's challenge to the "second restitution fine" to be directed at the $200 restitution fine imposed under section 1202.44 or the $200 restitution fine imposed under section 1202.45. These fines were imposed only once.

In Chambers, "the trial court imposed a $200 restitution fine when it granted the defendant probation, but it also imposed a $500 restitution fine later when the defendant's probation was revoked." (Chambers, supra, 65 Cal.App.4th at pp. 820-821.) Focusing on the pertinent statute, i.e., section 1202.4, we reasoned that its language suggests an intent to have a restitution fine imposed at probation persist through the revocation of probation. We noted that "[r]estitution fines are required in all cases in which a conviction is obtained. Furthermore, there is no provision imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction. (Pen. Code., § 1202.4, subd. (b).)" (Chambers, at p. 822.) We concluded that "[t]here is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation." (Id. at p. 823.) We followed Chambers in Arata, and we do so here. Applying Chambers, the second $200 restitution fine the trial court imposed under section 1204.4 upon revocation of defendant's probation was unauthorized.

The People suggest the trial court did not actually impose a second $200 restitution fine under section 1202.4, but we disagree.

The first $200 restitution fine under section 1204.4 was imposed on July 6, 2006, in connection with defendant's grant of probation. Later, on March 12, 2010, at sentencing following revocation of defendant's probation, the court specifically announced that it was ordering that "defendant pay a restitution fine of $200 pursuant to Penal Code Section 1202.4." The trial court's subsequent minute order and the abstract of judgment also reflect that a $200 restitution fine under section 1202.4 was imposed on March 12, 2010. Therefore, two restitution fines were imposed under section 1202.4, with each imposition occurring on a different date. The trial court did not use any language at sentencing on March 12, 2010, to suggest that the court was merely restating the restitution fine previously imposed. (Cf. People v. Cropsey (2010) 184 Cal.App.4th 961, 965-966.)

To avoid running afoul of Chambers in the future, at sentencing following revocation of probation, we suggest the trial court "simply say, 'The abstract of judgment should reflect the restitution fine(s) previously imposed'" (Cropsey, supra, 184 Cal.App.4th at p. 966) under section 1204.4.

Because the $200 restitution fine the trial court initially imposed under section 1202.4 survived revocation of defendant's probation, the second $200 restitution fine imposed under section 1202.4 was unauthorized and must be stricken.

Defendant contends that the logic of Chambers applies to the trial court's imposition of the second court security fee, the second main jail booking fee and the second main jail classification fee. Given the language of the pertinent statutes, we agree that the logic of Chambers applies. We now turn to these fees.

II

Court Security Fee

Section 1465.8 calls for the imposition of a court security fee "on every conviction for a criminal offense." Because defendant suffered only one conviction for a single offense, only one court security fee was authorized. (See People v. Crittle (2007) 154 Cal.App.4th 368, 370.) The triggering event, i.e., the "conviction," occurred when defendant pleaded no contest to assault with intent to commit rape on June 8, 2006. (Chambers, supra, 65 Cal.App.4th at pp. 821-823; People v. Davis (2010) 185 Cal.App.4th 998, 1001 (Davis).) The initial imposition of a single $20 court security fee on July 6, 2006, for defendant's conviction was proper. This fee survived the revocation of defendant's probation. Therefore, the second $20 court security fee imposed on March 12, 2010, upon revocation of probation, was unauthorized.

III

Main Jail Booking and Classification Fee

Government Code section 29550.2 provides that "[a]ny person booked into a county jail . . . is subject to a criminal justice administration fee for administration costs incurred in conjunction with arresting and booking if the person is convicted of any offense relating to the arrest and booking." The fees authorized by section 29550.2 cannot "exceed the actual administrative costs" associated with receiving an arrestee into a county detention facility. (Gov. Code, § 29550.2, subds. (a) & b.) In the probation context, if a trial court decides to impose a criminal justice administration fee, the statute commands that the court "shall" make payment a "condition of probation." (Gov. Code, § 29550.2, subd. (a).)

Here, defendant was "convicted" upon his no contest plea, and the trial court subsequently imposed a main jail booking fee ($208.43) and main jail classification fee ($24.09) under Government Code section 29550.2, making them a condition of defendant's probation. To conclude that this main jail booking fee and main jail classification fee did not survive the revocation of defendant's probation would eviscerate the statutory command to include them as a condition of probation in the first instance. Accordingly, the main jail booking fee and classification fee imposed at the time of probation survived the revocation of defendant's probation. Upon revocation of defendant's probation, the imposition of the second main jail booking fee ($270.17) and the second main jail classification fee ($51.34) was unauthorized.

Although the trial court did not specify the statutory basis for the second main jail booking fee ($270.17) or the second main jail classification fee ($51.34), the People represent that these fees were imposed under Government Code section 29550.2. We agree that Government Code section 29550.2 served as the unstated statutory basis for these fines. When imposing the first main jail booking fee and the first main jail classification fee in the probation context, Government Code section 29550.2 was specifically delineated as the statutory basis for these fines. There is no reason to suspect that a different statutory authority was relied upon when imposing the second main jail booking fee and the second main jail classification fee.

The People argue that case should be remanded so that the trial court can determine defendant's ability to pay the second main jail booking fee and the second main jail classification fee. We disagree. These fees must be stricken, as the original main jail booking fee and main jail classification fee survived the revocation of defendant's probation. Moreover, defendant did not object to the original main jail booking fee or main jail classification fee on the grounds that the trial court failed to consider defendant's ability to pay. Therefore, that issue has been forfeited. (People v. Nelson (2011) 51 Cal.4th 198, 227.)

IV

Criminal Conviction Assessment

Government Code section 70373 calls for the imposition of an assessment "on every conviction for a criminal offense." This statute became effective January 1, 2009, and does not apply to convictions before that date. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1414; Davis, supra, 185 Cal.App.4th at pp. 1000-1001.) On March 12, 2010, upon revoking defendant's probation and sentencing him to prison, the trial court imposed a $30 criminal conviction assessment under Government Code section 70373.

Defendant contends that his "conviction" occurred before the effective date of the statute and, therefore, the trial court lacked authority to impose the $30 criminal conviction assessment. The People agree, as do we.

Defendant suffered a "conviction" when he pleaded no contest on June 8, 2006, well before the effective date of the statute. (Davis, supra, 185 Cal.App.4th at p. 1001; Chambers, supra, 65 Cal.App.4th at pp. 821-823.) Therefore, the $30 criminal conviction assessment was unauthorized. (Davis, at p. 1001.)

V

Discrepancy Between Judgment and Abstract of Judgment

Defendant argues that the abstract of judgment contains fines and fees that the court did not orally pronounce at the rendition of judgment on March 12, 2010. According to defendant, these fines and fees must be reversed.

In essence, the written abstract of judgment is supposed to be a mirror image of the judgment the trial court orally pronounces. The written abstract cannot add to or modify the oral judgment it purports to reflect. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) As we have explained, "[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. Zackery (2007) 147 Cal.App.4th 380, 387-388 (Zackery).)

Here, the only fine orally pronounced at judgment on March 12, 2010, was the second $200 restitution fine under section 1204.4. The trial court should have verbally specified each additional fine and fee it imposed, along with the statutory basis for each, during the pronouncement of judgment (People v. High (2004) 119 Cal.App.4th 1192, 1200), and the court should not have added additional fines and fees to the minutes and abstract of judgment that were not verbalized during the pronouncement of judgment (Zackery, supra, 147 Cal.App.4th at p. 388).

The fines and fees that were not pronounced at judgment but which were nevertheless added to the subsequent minute entry and abstract of judgment include the second court security fee, the second main jail booking fee, the second main jail classification fee, and the criminal conviction assessment, all of which we will order stricken for the reasons discussed above. In addition, the minute entry and abstract added a mandatory restitution fine pursuant to section 1202.45, suspended pending revocation of parole. To cure any deficiency in the rendition of judgment for failure to specify this fine, we will modify the judgment on appeal to reflect its inclusion.

DISPOSITION

The judgment is modified by: (a) striking the second $200 restitution fine imposed under section 1202.4; (b) including a $200 restitution fine pursuant to section 1202.45, stayed pending revocation of parole; and (c) leaving in force the initial fines and fees imposed at the time probation was granted, which include: (1) a $200 restitution fine pursuant to section 1202.4; (2) a $200 restitution fine pursuant to section 1202.44, no longer stayed; (3) a $20 court security fee pursuant to section 1465.8, subdivision (a)(1); (4) a $208.43 main jail booking fee pursuant to Government Code section 29550.2; and (5) a $24.09 main jail classification fee pursuant to Government Code section 29550.2. As modified, the judgment is affirmed.

All of the following, which were imposed upon revocation of probation, are stricken from the minute order and abstract of judgment dated March 12, 2010: (1) the $200 restitution fine under section 1204.4; (2) the $20 court security fee under section 1465.8; (3) the $30 criminal conviction assessment under section Government Code Section 70373; (4) the $270.12 main jail booking fee under Government Code section 29550.2; and (5) the $51.35 main jail classification fee under Government Code section 29550.2.

The trial court shall prepare an amended abstract of judgment consistent with this decision and forward a certified copy of the same to the Department of Corrections and Rehabilitation. To avoid ambiguity, when preparing the abstract, the trial court shall list the fines and fees imposed at probation and indicate on the abstract that these fines and fees were previously imposed on July 6, 2006.

I concur: BLEASE , Acting P. J.

I concur in this opinion but write separately to again encourage trial judges to stop using phrases such as imposing fees "as per standard practice" and orally impose the necessary orders. Such time-saving efforts result in totally unnecessary appeals.

ROBIE, J.

20110629

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