IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
June 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SUZANNE SULLIVAN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F5778)
The opinion of the court was delivered by: Butz ,j.
P. v. Sullivan
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The sole issue in the present appeal is the statutory basis appearing in the amended probation order for a base fine. We shall affirm the judgment as modified. We accordingly limit our summary of the underlying facts to the following:
A jury convicted defendant Suzanne Sullivan of the charge of possessing methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Defendant requested immediate sentencing. The trial court suspended imposition of sentence and placed defendant on drug program probation. (Pen. Code, § 1210.1.) Among the conditions of probation, the court imposed a jail term equal to time served, and various fines and fees. As is relevant to defendant's argument on appeal, these included "a fine of $720 and a criminal laboratory fee of $180," as to which the trial court solicited a waiver of "a full reading and advisement of the breakdown of fines and fees."
The order of probation, however, did not include the breakdown of fees and statutory bases prescribed under People v. High (2004) 119 Cal.App.4th 1192. Appellate counsel sent a December 2010 letter to the trial court requesting an amended probation order setting these forth. The court filed an amended May 6, 2010 minute order in February 2011. This now specified that the fine of $720 included a base fine of $200,*fn1 citing Penal Code section 1463.001 as authorization.
On appeal, defendant contends the trial court imposed an unauthorized fine that we must strike. She correctly maintains that Penal Code section 1463.001 of itself does not authorize a fine, but instead sets forth the procedures for accounting for base fines. Defendant appears to take the position in her reply brief that if an order makes a clerical error with respect to the statutory authorization for a fine, this is an irremediable error because it defies the purpose of providing clarity to defendants and any courts or agencies that must enforce the ordered fines.
Defendant cites People v. Allen (2001) 88 Cal.App.4th 986 (Allen), in which we concluded that Penal Code section 1202.4, subdivision (a)(2) was a provision for a penalty assessment, not a base fine, and thus did not support the $2,000 fine that the trial court had imposed. (Allen, supra, at pp. 991, 996, 997-998.)*fn2 We noted the trial court could have imposed a fine pursuant to the catchall fine provision of Penal Code section 672; while we acknowledged the principle that we may uphold a judgment correct in result even if its reasoning is wrong, we nonetheless remanded because we could not determine "whether the trial court would have exercised its discretion to impose a $2,000 fine" under section 672 if it had known that it could not impose it under section 1202.4. (Allen, supra, at p. 999.)
In hindsight, this disposition is puzzling. There was an express intent to impose a $2,000 fine, but the trial court had simply cited the wrong statutory authorization. Although not clearly articulated, we conclude this result flows from our subsequent caveat that the trial court (which has the discretion to designate the amount of the fine in the first instance) could not impose a base fine that, along with the pertinent penalty assessments, would result in a total greater than the $2,000 it had originally imposed. (Allen, supra, 88 Cal.App.4th at p. 999.) The remand thus allowed the trial court to exercise discretion in the first instance (cf. Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131-1132 [appellate court should not usurp trial court's discretionary power in first instance]) to set the amount of the base fine which, with the assessments, would still come within the cap.
This concern is not implicated in the present case, where the incorrect statutory authorization is attached to the amount of base fine itself independent of the penalty assessments. We thus may simply modify the incorrect citation, designating the catchall fine provision in Penal Code section 672. (People v. Clark (1992) 7 Cal.App.4th 1041, 1045-1046 [section 672 applies to conviction for simple possession of contraband substance].) Such a correction, even if belated, does not run afoul of any policy of providing clarity to the parties and agencies.
We note three other errors in the amended probation order on our own motion. Although the trial court orally imposed a stayed restitution fine of $200 in the event of a revocation of defendant's probation (Pen. Code, § 1202.44), and the original probation order included a condition to this effect, the amended order omits it. This is a mandatory fine even where a trial court stays imposition of sentence in granting probation. (People v. Taylor (2007) 157 Cal.App.4th 433, 438.) The amended probation order also omits the mandatory fees for court security (Pen. Code, § 1465.8)--which had appeared in the original order--and for court facilities (Gov. Code, § 70373), which had not. In addition, the original and amended probation orders both impose a $128 main jail booking fee (Gov. Code, § 29550.2) as a civil obligation rather than as a condition of probation.*fn3 While this is the correct procedure where probation is not granted, "The court shall, as a condition of probation, order the convicted person to reimburse the county for the [booking] fee." (Gov. Code, § 29550.2, subd. (a) (italics added); accord id., § 29550, subd. (d)(2) ["as a condition of probation" court shall order the defendant to reimburse county for booking fee if able to pay]; see People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399-1400 [finding, however, insufficient evidence of ability to pay].) As these are mandatory provisions, we may correct the order on appeal in the first instance (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Rodriguez (2000) 80 Cal.App.4th 372, 374), and we do not see any purpose in soliciting supplementary briefing regarding this disposition. Should defendant claim to be aggrieved as a result, she may petition for rehearing. (Gov. Code, § 68081.)
The amended probation order of February 2011 is modified to specify Penal Code section 672 as the authorization for the $200 base fine; to include a stayed $200 restitution fine for any revocation of probation as a condition of probation (Pen. Code, § 1202.44); to designate a $128 main jail booking fee as a condition of defendant's probation with Government Code section 29550.2, subdivision (a) as its statutory basis; and to include the mandatory fees for court security (Pen. Code, § 1465.8) and court facilities (Gov. Code, § 70373). As thus modified, the order is affirmed. The trial court is directed to prepare a second amended order of probation reflecting these changes and forward a certified copy to the probation department.
We concur: RAYE, P. J. HOCH ,J.