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The People v. andre Lashin

July 2, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANDRE LASHIN, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 62-97795, 62-96644, 62-97616)

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Lashin

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Pursuant to a plea agreement involving three separate cases, defendant Andre Lashin entered no contest pleas to corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a))*fn1 with an enhancement for personally inflicting great bodily injury (§ 12022.7, subd. (e)), second degree burglary (§ 459), receiving stolen property (§ 496, subd. (a)), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). In exchange for his pleas, numerous charges were dismissed and it was agreed he would receive five years' formal probation with the suspended execution of a term of 10 years four months in state prison. Defendant was sentenced in accordance with this agreement.

Defendant appeals, contending the trial court's written probation order does not accurately reflect the fines and fees it assessed when pronouncing sentence. He also claims the court was not permitted to impose a fine in addition to ordering him to make payments to a battered women's shelter. Defendant's final contention is that the court did not assess his ability to pay before ordering payment of the costs of preparing the presentence report and probation supervision. We conclude the matter must be remanded to the trial court for clarification of its order.

PROCEDURAL BACKGROUND*fn2

Following defendant's previously described no contest pleas, the trial court referred his matters to the probation department for a presentence report. The presentence report contained recommended terms and conditions of probation, including the following fines and fees: (1) a $400 payment to the domestic violence fund; (2) a $400 payment to a battered women's shelter; (3) a $100 fine plus penalty assessments and a 20 percent surcharge on the base fine pursuant to section 1465.7; (4) $350 for the cost of preparing a presentence report; (5) probation supervision/service fees of $20 per month; (6) $25 for each drug test; (7) a $25 administration screening fee; (8) a $30 fine for each offense pursuant to section 1465.8; (9) a $200 restitution fine; (10) a suspended probation revocation fine of $200; and (11) a $30 assessment fee per offense pursuant to Government Code section 70373.

At the sentencing hearing, defendant's attorney informed the court he had reviewed the presentence report and the proposed order with defendant and that he had no comments. The trial court stated it was "going to adopt the recommendations of probation." In addition to suspending execution of sentence and setting forth various terms and conditions of probation, the court ordered defendant to "pay the following fines and fees: $400 assessment to the domestic violence fund, $100 assessment to the Placer Women's Center, $30 court security fee, $30 criminal assessment fee, and $100 state restitution fine." The court also suspended a $100 state restitution fine "pending revocation of probation." The court ordered "all the other standard terms as set forth in the probation officer's report" and "adopt[ed] the fines as recommended by probation."

Defendant signed the probation order, which set forth fines and fees nearly identical to those recommended in the presentence report.

DISCUSSION

Defendant complains that the probation order prepared by the court clerk contains "a variety of fines, fees, and conditions which were never imposed by the trial court." According to the People, the court's oral pronouncement that it was adopting the fines and recommendations of probation was sufficient to permit imposition of the amounts recommended in the presentence report. Because the trial court's intent in this regard is unclear, we conclude the matter must be remanded for the court to provide clarification.

However, in the present matter, contrary to the trial court's statement that it was adopting the recommendations of probation, it orally imposed a payment to a battered women's shelter and a restitution fine that differed from the amounts recommended in the presentence report.*fn3 Moreover, the only costs or fees mentioned in the court's oral pronouncement were a court security fee (§ 1465.8) and a criminal assessment fee (Gov. Code, § 70373), and the court did not ...


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