IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEPHEN ARTHUR SMITH, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F03926)
The opinion of the court was delivered by: Hull , J.
P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Stephen Arthur Smith entered a plea of no contest to reckless driving while fleeing a law-enforcement officer, in exchange for which he received a stipulated prison term, suspension of execution of sentence, and probation conditioned, inter alia, on a one-year jail term. On appeal, defendant contends the written minute order granting probation is at odds with the trial court's oral rendition of judgment wherein the court stated an intent to strike any discretionary fine or fee, whereas the written order imposed booking and classification fees that were discretionary upon a finding that a defendant does not have the ability to pay them. We must vacate the order and remand the matter to the trial court for resentencing.
FACTS AND PROCEEDINGS
The prosecutor recited the stipulated factual basis for the plea. In March 2009, defendant attempted to evade a peace officer. In the process, he drove through three stop signs, drove against traffic on a one-way street, and, after stopping, switched seats with his passenger and got out of the car through the passenger's door.
A written draft of the specific conditions of probation prepared prior to sentencing provided for imposition of a $400 restitution fine (and its parallel stayed revocation fine), the court security and facilities fees, and the fees for booking and classification (citing Government Code section 29550.2 as the basis for the latter). The written draft probation conditions also provided for the collection of small amounts for the monthly costs of probation supervision and drug testing. It did not include any provision for reimbursement of defendant's legal fees.
At the outset of the sentencing hearing, defense counsel requested that the trial court consider "medical home detention" for the jail term. The court eventually agreed to this request based on defendant's unspecified medical condition, but would not release defendant on his own recognizance to tend to "several bags that need to be changed" which were apparently leaking and emitting odors.
In determining if the plea was an informed and voluntary decision, the court questioned defendant about his medications, which included three types of pain-killers, a blood-thinner, and pancreatic enzymes. Defense counsel persuaded the trial court to give defendant an extra day to report to his probation officer after the hearing because "he does have quite a few physical limitations, and now . . . he won't be able to drive."
After entering his plea, defendant waived referral for a probation report and agreed to immediate sentencing. Defense counsel asked the trial court to impose the minimum financial obligation possible because defendant was indigent. The prosecutor did not raise any objection to the request.
In its oral rendition of judgment, the trial court adopted the draft conditions of probation, which defendant had reviewed with his attorney, "with the following exceptions: [¶] The restitution fine listed in item number four is reduced to the minimum of $200. [¶] All other mandatory fines and fees are imposed. [¶] Those that are discretionary are waived." The trial court also awarded 60 days of conduct credit for 61 days of actual custody.
Adjusting the amount of the restitution fine, the minute order reiterated the provisions of the written draft. It also struck the provisions for collecting the costs of probation supervision and drug testing.
The People assert defendant has forfeited the issue because he did not object to the inclusion of the fees for booking and classification in the trial court. As we have noted , defendant in fact had requested that the court impose only the absolute minimum of mandatory fines in light of his indigency. Defendant having in fact raised the issue of his ability to pay, the issue cannot be considered forfeited.
Other than concede that these fees are not mandatory conditions of probation if a trial court makes an express or implied finding of an inability to pay (citing People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400 (Pacheco)), the People do not otherwise address the issue on its merits.
Both parties cite Pacheco for the proposition that the "administration" fees at issue, to use the statutory phrase, are not mandatory if a trial court finds an inability to pay. But the issues discussed in Pacheco are not directly before us. Unlike Pacheco, defendant raised the issue in the trial court. Also, the record in the present case clearly identified the county as the arresting entity. As a result, the administration fees were not mandatory unless there was substantial evidence to support an implied finding of an ability to pay.
This leaves the issue of whether the trial court intended to make a finding of ability to pay, or whether it intended to strike the administration fees because it declined to make that finding.
It is the oral imposition of sentence that constitutes the judgment in an action. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) This means it is the oral rendition of judgment that must specify the amounts and the statutory authorization for all fines and fees that the court imposes. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)
Although the probation order included a provision that defendant was to pay installments in "the amount determined after an evaluation and recommendation of ability to pay and for development of a payment schedule for court-ordered costs, fees, fines and restitution," this referral is not a substitute for the required court finding of an ability to pay, nor are the administration fees conditioned on any subsequent finding by the revenue department of an ability to pay. We therefore cannot uphold the imposition of these fees on this basis. (Cf. Pacheco, supra, 187 Cal.App.4th at pp. 1396, 1398 [declining to uphold order to reimburse legal fees on this basis].)
The trial court's statement, taken at face value, manifested an intent to impose only fees that were in fact mandatory. It made interlineations to reduce the restitution and revocations fines to the minimum on the written draft, and to strike provisions for collecting costs of probation and urinalysis testing. The record also indicates the court was aware defendant had significant unspecified medical problems, and was amenable to making accommodations for them. Taken as a whole, we believe this indicates a failure to strike the administration fees included in the draft was an oversight that would not have occurred had the court expressly recited each of the fines and fees in turn.
Ultimately, it is not proper for this court to guess at the unexpressed intent of the trial court. It is preferable that we vacate the order and remand for the trial court to articulate its sentencing decisions on the record as required.
The probation order is vacated, and the matter is remanded for resentencing.
We concur: BLEASE , Acting P. J. MAURO , J.
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