Opinion
H044099
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. CARLOS CAZARES, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING BY THE COURT:
It is ordered that the opinion filed herein on August 16, 2018, be modified as follows:
On page 18, footnote 5, the following two sentences are added after the second sentence: "Even if we reach the merits of defendant's ineffective assistance of counsel claim, we would find it is without merit. Having concluded the fines are authorized and the record does not affirmatively demonstrate the court intended to use the formula set forth under Penal Code section 1202.4, subdivision (b)(2), defendant cannot satisfy his burden to show his counsel's performance was deficient. (People v. Mickel (2016) 2 Cal.5th 151, 198 [defendant must show counsel had no rational tactical purpose for challenged act or omission]; People v. Jones (1979) 96 Cal.App.3d 820, 827 [trial counsel need not make futile objections].)"
There is no change in judgment. The petition for rehearing is denied. Dated: __________ /s/_________
Premo, J. /s/_________
Greenwood, P.J. /s/_________
Grover, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS160333A)
Defendant Carlos Cazares was convicted by a jury of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), driving while having a 0.08 percent or higher blood-alcohol content (§ 23152, subd. (b)), and driving with a suspended license (§ 14601.1, subd. (a)). The court also found true the allegations that defendant had suffered two prior felony convictions within the meaning of sections 23550 and 23550.5. Defendant was sentenced to a total term of two years in prison.
Unspecified statutory references are to the Vehicle Code.
On appeal, defendant argues the trial court abused its discretion by prohibiting him from cross-examining a witness about partition ratio variability and erred when it failed to stay the punishments imposed for two of his convictions under Penal Code section 654. Defendant also argues that several of his fines and fees must be either stricken or reduced. We requested supplemental briefing on two issues not raised by either party: (1) whether defendant's sentence was unauthorized due to the trial court's failure to impose a sentence for his conviction of driving with a suspended license and (2) whether the court erred when it did not specify the amounts and statutory bases for all of the imposed fines, fees, and penalty assessments. As we explain below, we find merit in defendant's argument pertaining to Penal Code section 654 and some of his claims related to fines and fees. We also find the court's failure to sentence defendant on all counts and specify the statutory bases for all fines and fees resulted in an unauthorized sentence. We reverse and remand with directions.
BACKGROUND
1. The Information
On August 8, 2016, the Monterey County District Attorney's Office filed an amended information charging defendant with driving under the influence (§ 23152, subd. (a); count 1), driving while having a 0.08 percent or higher blood-alcohol content (§ 23152, subd. (b); count 2), and driving with a suspended license (§ 14601.1, subd. (a); count 3). It was alleged as to counts 1 and 2 that defendant had suffered two prior felony convictions within the meaning of sections 23550 and 23550.5.
2. The Trial
On February 26, 2016, California Highway Patrol Officer Sam Gibson saw defendant drive approximately 87 miles per hour in a 65 mile per hour zone at around 6:20 p.m. while weaving in and out of traffic. Gibson pulled defendant over, walked to defendant's car from his patrol car, and briefly spoke to him. From this first contact, Gibson did not notice anything unusual about defendant's demeanor. Gibson walked to his patrol car, then came back to defendant's car. When he approached defendant's car for the second time, Gibson smelled alcohol and saw defendant's eyes were red and watery.
Officer Gibson asked defendant if he had anything to drink that night or earlier in the day. Defendant said he had not. Gibson asked defendant to step outside of his car. He then asked defendant a series of field sobriety test questions. While answering Gibson's questions, defendant asked if he could use the bathroom approximately seven times. He tried to put his hands in his pockets and appeared uncomfortable.
Officer Gibson decided to administer a horizontal gaze nystagmus test. He instructed defendant to look at his right index finger and follow it with his eyes. As Gibson moved his finger, he noticed defendant's eyes did not smoothly track his finger's movements. At that point, he believed defendant was under the influence and asked him to submit to a preliminary alcohol screening (PAS) test. Gibson administered the first PAS test at approximately 6:33 p.m., 13 minutes after defendant was initially pulled over. Defendant blew into the PAS device, which gave a reading of 0.079 percent. Gibson thought defendant did not strongly exhale into the device, so he asked defendant to blow into the device again at approximately 6:35 p.m. The second time, the PAS device gave a reading of 0.095 percent. Given the discrepancy between the two readings, Gibson asked defendant to blow into the device a third time. The third time, at 6:37 p.m., the device gave a reading of 0.092 percent. Gibson noted the test results in his police report.
Officer Gibson acknowledged there is usually a 15 minute waiting period before PAS tests are administered. The waiting period permits officers to observe suspects and "make sure that if they have ingested anything, [like] burp, vomit," they are able to "purge that out of their system," ensuring accurate results.
After getting the PAS test results, Officer Gibson placed defendant under arrest at approximately 6:38 p.m. Gibson told defendant he had the right to take a chemical test, either blood or breath, or he could refuse. Defendant chose to take a breath test. Gibson drove defendant to the local California Highway Patrol (CHP) area office that was approximately 40 minutes away. There, he administered a breath test using a portable evidentiary breath test (PEBT) machine at 7:20 p.m. After defendant blew into the machine, Gibson had him wait two minutes before giving a second sample. Afterwards, Gibson permitted defendant to use the bathroom. Both tests gave a result of 0.10 percent.
Officer Gibson acknowledged there were other field sobriety tests, such as the leg stand test and the walk and turn test, that he did not ask defendant to complete. He further acknowledged there were some errors in his typed police report. For example, his police report indicated he arrested defendant at 6:33 p.m., when he administered the first PAS test. Gibson actually arrested defendant after the third PAS test. Moreover, the police report incorrectly stated defendant's date of birth.
CHP Officer Ruben Gonzales was a PAS and PEBT coordinator at the time of defendant's offense. Gonzales's role was to ensure the department's PAS and PEBT devices were working properly and accurately. Gonzales explained that the use, maintenance, and record-keeping protocols for both PAS and PEBT devices are governed by title 17 of the California Code of Regulations (hereafter, title 17). According to Gonzales, the PAS and PEBT devices used to administer defendant's tests were performing accurately the day he was arrested. At trial, defendant's counsel attempted to cross-examine Gonzales about partition ratio variability. The trial court sustained the People's objection and prohibited cross-examination on the subject.
Laura Lee, a criminalist at the California Department of Justice's Fresno laboratory, explained how alcohol affects the body. She testified that alcohol is absorbed by the body primarily through the small intestines. Once absorbed, it is transported through the bloodstream and distributed throughout the body. Lee explained that alcohol is a central nervous system depressant that slows down a person's thought process. It causes both physical and mental impairment. Mental impairment can be seen starting anywhere between 0.01 to 0.05 percent blood-alcohol content. Between 0.05 and 0.10 percent blood-alcohol content, one can expect to see physical impairment. Lee opined it would take approximately six standard drinks for an 180-pound man to have a 0.10 percent blood-alcohol content. A person with a higher blood-alcohol content will be more visibly impaired.
The parties stipulated that if a witness from the Department of Motor Vehicles (DMV) were called to testify, he or she would testify that defendant's license was suspended on October 22, 2015. It was further stipulated that defendant was sent a letter informing him of the suspension.
3. Verdict and Sentencing
On August 9, 2016, the jury found defendant guilty on all counts. Three days later, the court found the allegations that defendant had prior convictions for driving under the influence to be true.
On October 12, 2016, the trial court sentenced defendant to a total term of two years in prison. The two years was composed of the middle term of two years for count 1 and a concurrent middle term of two years for count 2. The court denied probation as to count 3 but did not impose a sentence, only stating that defendant would receive "[n]o time, no credits" for the offense. The trial court imposed a restitution fine of $1,500 (Pen. Code, § 1202.4, subd. (b)) and various other fines and fees. Defendant was ordered to pay a base fine of $390 "plus penalty assessments."
During the sentencing hearing, the trial court did not specify whether defendant's terms for counts 1 and 2 would run consecutively or concurrently. The court merely stated it was going to select the midterm of two years for the two counts. The abstract of judgment, however, indicates imposition of concurrent terms for counts 1 and 2. Moreover, in the event a court fails to specify if terms of imprisonment are to be served concurrently or consecutively, they will be deemed to run concurrently. (Pen. Code, § 669.)
DISCUSSION
1. Evidence of Partition Ratio Variability
Defendant was charged with violating the "generic" driving under the influence statute (§ 23152, subd. (a)) and the "per se" statute prohibiting driving with a blood-alcohol level of more than 0.08 percent (§ 23152, subd. (b)). Defendant argues that although evidence of partition ratio variability is not relevant to the per se offense under section 23152, subdivision (b), it is relevant to the generic offense under section 23152, subdivision (a). Thus, he insists the trial court erroneously prohibited him from cross-examining Officer Gonzales on the subject.
a. Legal Principles and Standard of Review
The "generic" driving under the influence statute (§ 23152, subd. (a)) prohibits driving under the influence of alcohol. The "per se" statute (§ 23152, subd. (b)) prohibits driving with a blood-alcohol level of 0.08 percent or higher. Defendant was charged with both crimes. The per se statute provides that "percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (§ 23152, subd. (b).) In generic DUI offenses, section 23610 creates a rebuttable presumption that a defendant was under the influence if he or she had a blood-alcohol level of 0.08 percent or higher, which is based on either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath (or a 1-to-2,100 milliliter ratio). (§ 23610, subd. (a).)
Under the Vehicle Code, drivers lawfully arrested for driving under the influence must submit to chemical testing to determine their blood-alcohol level. (§ 23612, subd. (a)(1)(A).) "Whereas a blood test directly measures the subject's blood-alcohol level, a breath sample must be converted to derive a blood-alcohol percentage. The conversion factor, known as a 'partition ratio,' reflects the relationship between alcohol measured in a person's breath and alcohol in the blood. Breath-testing machines in California incorporate a partition ratio of 2,100 to 1, which means the amount of alcohol in 2,100 milliliters of breath is considered equivalent to the amount of alcohol in 1 millimeter of blood. It is undisputed, however, that partition ratios can vary widely, both in the general population and within an individual." (People v. McNeal (2009) 46 Cal.4th 1183, 1188 (McNeal).)
We apply the abuse of discretion standard of review to a ruling by the trial court on the admissibility of evidence. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
b. The Trial Court's Exclusion of Partition Ratio Evidence Was Erroneous
Defendant argues that the issue was preserved on appeal because his counsel affirmatively sought the line of questioning about partition ratio evidence, the People objected, and the court sustained the People's objection. He claims that in the event we find his argument was forfeited, his counsel was ineffective for failing to restate an objection on the record. The People do not argue forfeiture. We agree with defendant that there was no forfeiture and proceed to address the merits of his claim. As a result, we do not need to reach defendant's alternative argument that his counsel rendered ineffective assistance.
At trial, defendant's counsel sought to cross-examine Officer Gonzales about partition ratio variability. The People objected to defense counsel's questions, and the trial court sustained the objections. As we explain, we agree with defendant that the trial court abused its discretion when it prohibited cross-examination on partition ratios.
In People v. Bransford (1994) 8 Cal.4th 885, the Supreme Court held that evidence of partition ratio variability was irrelevant in cases involving the per se DUI offense, because in those cases the Legislature already incorporated the 2,100-to-1 partition ratio within the definition of the crime. (Id. at p. 888; § 23152, subd. (b).)
Here, however, defendant was charged with both the per se offense and the generic driving under the influence offense. As we previously stated, for generic DUI offenses, section 23610 creates a rebuttable presumption that a defendant was under the influence if he or she has a blood-alcohol level of 0.08 percent or higher, which is based on either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath (or a 1-to-2,100 milliliter ratio). (§ 23610, subd. (a).) In McNeal, the Supreme Court clarified that partition ratio evidence was relevant in generic DUI cases to rebut the presumption that a person was under the influence under section 23610. (McNeal, supra, 46 Cal.4th at p. 1200.)
Based on McNeal, the trial court abused its discretion when it prohibited cross-examination on partition ratios. Even though partition ratio evidence was irrelevant to the per se offense, it was relevant to the generic offense.
c. The Exclusion of Partition Ratio Evidence Was Harmless
Defendant argues the exclusion of partition ratio evidence was prejudicial. He also claims exclusion of the evidence restricted his federal constitutional rights to confront and cross-examine witnesses and to present a complete defense. We find no merit in his arguments.
First, we disagree with defendant's claim that the trial court's evidentiary ruling deprived him of his constitutional rights. " 'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." ' " (McNeal, supra, 46 Cal.4th at p. 1203.) For example, in McNeal, the Supreme Court concluded the erroneous exclusion of partition ratio evidence did not preclude the defendant from presenting a defense; it merely prohibited the defendant from introducing a portion of the evidence he wished to present. (Ibid.) We find the situation presented in McNeal analogous. At trial, defendant argued he was not under the influence at the time of his arrest. He was able to present his defense and provide evidence in support of it. Evidence of partition ratio variability would have been additional evidence in support of his defense, not an entirely new defense. Thus, exclusion of the evidence did not deprive him of his constitutional rights.
McNeal concluded the error in excluding evidence of partition ratios was one of state law and thus properly reviewed under the standard set forth under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (McNeal, supra, 46 Cal.4th at p. 1203.) Under Watson, reversal is required only if upon examination of all the evidence we conclude it is reasonably probable defendant would have achieved a more favorable result in the absence of the error. (Watson, supra, at p. 836.) We follow McNeal and examine prejudice under the Watson standard. Based on our review, we conclude defendant was not prejudiced.
Defendant posits the prosecution's case against him was weak, because the physical evidence of his intoxication was limited. Additionally, he questions the reliability of the PAS test results, because Officer Gibson did not print out the results, they were reported only in his police report, and it was subsequently shown that some of his police report contained errors. Moreover, defendant insists the PAS test results were of questionable significance due to Gibson's noncompliance with title 17 of the California Code of Regulations. He argues that an accuracy check had been missed two weeks before defendant's arrest, and Gibson did not observe defendant for a full 15 minutes before administering the first PAS test.
Defendant cites to Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176 (Roze). In Roze, the appellate court upheld the trial court's grant of a writ petition setting aside a driver's license suspension following an administrative hearing. (Id. at p. 1179.) At a DMV administrative hearing, " 'the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher.' " (Id. at p. 1183.) Roze was stopped by a CHP officer after he was driving at a high rate of speed. When Roze was stopped, the officer noticed a smell of alcohol emanating from the car and saw that Roze's eyes were bloodshot and watery. (Id. at pp. 1179-1180.) Roze was chewing gum at the time, and the officer waited only nine minutes before administering two PAS tests, both of which came back with a reading higher than 0.1 percent. (Id. at p. 1180.) When reviewing Roze's writ petition, the trial court accorded little weight to the result of the PAS test, partly due to the officer's noncompliance with title 17. Subsequently, the trial court granted the writ petition, which the appellate court affirmed.
We agree with defendant's assessment that Officer Gibson did not fully comply with title 17 when he administered the PAS test. We also agree with defendant's conclusion that noncompliance with title 17 goes toward the weight a factfinder should accord to the results of the PAS test. (People v. Williams (2002) 28 Cal.4th 408, 418.) However, we find defendant's claim that the PAS test results should be disregarded or accorded little weight like in Roze to be without merit. Here, Gibson's noncompliance with title 17 was not as egregious as the officer's noncompliance in Roze. In Roze, Roze was chewing gum when he was stopped and the officer waited only nine minutes before administering the two PAS tests. In defendant's case, Gibson waited 13 minutes before administering the first PAS test, and defendant was not eating or drinking food at the time he was stopped. Gibson subsequently administered two additional PAS tests, both of which were given after the requisite 15-minute waiting period. Furthermore, even if we conclude the PAS test unreliably measured defendant's blood-alcohol level, the test results are still evidence that some level of alcohol was present in defendant's system.
Setting aside the PAS test results, there was still ample evidence that supported a conclusion that defendant was intoxicated. Defendant was stopped by Officer Gibson after he sped more than 20 miles over the speed limit on the freeway. Gibson smelled alcohol when he approached defendant's car for the second time. He observed defendant had red, watery eyes. Gibson then administered the horizontal gaze nystagmus test, which defendant failed. Defendant's subsequent breath tests, administered with the PEBT machine at the local CHP office, found defendant's blood-alcohol content to be 0.10 percent. At trial, the People's expert, Lee, opined that mental impairment begins at 0.01 to 0.05 percent blood-alcohol content and physical impairment begins at 0.05 percent blood-alcohol content. Lee also testified that mental impairments affect a person's ability to drive.
Defendant argues Lee's testimony that a 0.05 percent blood-alcohol content can cause mental and physical impairments should not by itself be considered sufficient evidence that he was under the influence. Defendant argues that if it is, no one would be able to rebut the presumption of impairment set forth under section 23610, and courts do not presume the Legislature performed idle acts or render statutory provisions superfluous. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22.)
We disagree. Lee's testimony supports the jury's conclusion that defendant was intoxicated. Giving weight to Lee's testimony does not negate the rebuttable nature of the presumption set forth under section 23610. Defendant was free to counter Lee's expert testimony with his own expert testimony if he so chose. And even though he did not present expert testimony to rebut Lee's testimony, the jury was not required to accept her testimony as true. " '[E]xpert testimony, even if uncontradicted, is not binding on the trier of fact, and may be rejected . . . .' " (People v. McCarrick (2016) 6 Cal.App.5th 227, 247.)
Based on the foregoing, we reject defendant's claim that the evidence against him was weak, rendering the exclusion of the partition ratio evidence prejudicial. Given the strong evidence of his intoxication, we do not believe it is reasonably probable he would have received a more favorable result had the partition ratio evidence been introduced. In other words, we find that although the court erred by excluding evidence of partition ratio variability, the error was not prejudicial under the Watson standard and reversal is not required.
Defendant argues his sentences on counts 2 and 3 must be stayed under Penal Code section 654, because his offenses all arose out of a single act of driving. The People concede, and we find their concession appropriate.
Defendant was convicted in count 1 of driving under the influence of alcohol (§ 23152, subd. (a)), in count 2 of driving with a blood-alcohol content of 0.08 percent or higher (§ 23152, subd. (b)), and in count 3 of driving with a suspended license (§ 14601.1, subd. (a)).
Penal Code section 654, subdivision (a) provides in pertinent part that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "[Penal Code] [s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358.) For example, in People v. Soto (2016) 245 Cal.App.4th 1219 (Soto), this court held that punishing a defendant for both driving with a suspended license and driving with a blood-alcohol content of 0.08 percent or higher violates Penal Code section 654. (Soto, supra, at p. 1234.)
Here, the trial court imposed a midterm of two years for both counts 1 and 2. Since defendant's offenses all arose from the same physical act of driving, we find that imposing multiple punishments for his offenses violates Penal Code section 654. (Soto, supra, 245 Cal.App.4th at p. 1234.) Thus, the sentence imposed for count 2 should be stayed.
Likewise, any sentence imposed for count 3 should also be stayed. In this situation, however, the court did not impose a punishment for count 3, merely stating that defendant would receive "[n]o time, no credits." We requested supplemental briefing on whether the trial court's imposition of "no time" for count 3 constituted an unauthorized sentence.
Defendant argues a sentence of "zero days" in jail constitutes an authorized sentence. We disagree. Section 14601.1, subdivision (b)(1), provides that a person convicted for driving with a revoked or suspended license under that statute shall be punished, upon a first conviction, "by imprisonment in the county jail for not more than six months or by a fine of not less than three hundred dollars ($300) or more than one thousand dollars ($1,000), or by both that fine and imprisonment." Although zero days is less than six months, a sentence of "zero days" is not a term of "imprisonment in the county jail." Furthermore, the statute plainly provides that the court shall impose a fine as an alternative to a jail sentence.
Section 14601.1, subdivision (b)(2) provides different guidelines for sentencing if the current offense occurred within five years of a prior offense that resulted in a conviction under sections 14601.1, 14601, 14601.2, or 14601.5. Although defendant had prior convictions for violating section 14601.2, none of these prior convictions were within five years of his current offense.
Here, the trial court did not impose either a fine or a jail sentence. " 'Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. (Pen. Code, § 12; [case citations].) Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion.' " (People v. Alford (2010) 180 Cal.App.4th 1463, 1468 (Alford).) "A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain." (Id. at p. 1469.) The court's imposition of "no time" for defendant's conviction for count 3 constitutes an unauthorized sentence, because it is not the punishment prescribed by the law.
We must now determine the proper remedy. Since the trial court imposed an unauthorized sentence, we could either remand the matter for a new sentencing hearing or exercise our authority to modify the judgment (Pen. Code, § 1260). In a similar situation, the appellate court in Alford decided to exercise its authority to modify the judgment after finding that remanding the matter for resentencing "would mean pulling [the] defendant out of his prison programming and busing him to Woodland for a new sentencing hearing that will not change his actual prison time." (Alford, supra, 180 Cal.App.4th at p. 1473.) Thus, the court concluded the "futility and expense of such a course militates against it." (Ibid.) The appellate court thereafter modified the judgment to reflect a midterm sentence for the count the court failed to impose a sentence on, finding it was "undoubtedly" the sentence the trial court would have imposed. (Ibid.)
Citing Alford, the People argue remand is unnecessary, because the record reflects the court would have undoubtedly sentenced defendant to the maximum term of six months in jail under section 14601.1, subdivision (b). We disagree with the People's assessment. At the sentencing hearing, the court expressed it believed defendant's offenses were serious but elected to impose the middle term of two years for both counts 1 and 2. Count 3 arises from the same conduct as counts 1 and 2, but it appears the court intended to be lenient when it imposed the unauthorized sentence of "no time" for count 3. Thus, we believe the record suggests the court may have sentenced defendant to a term in jail less than the statutory maximum of six months. The record, however, does not reflect whether the court would have imposed a fine in lieu of a jail sentence, a fine in conjunction with a jail sentence, or merely a jail sentence as set forth under section 14601.1.
We are aware that remanding the matter will cost time and money, and the sentence on count 3 will have little practical effect since it must be stayed. However, we cannot substitute our judgment for that of the trial court and make discretionary sentencing choices on its behalf. (People v. Lawley (2002) 27 Cal.4th 102, 172.) Accordingly, we believe remand is necessary so the trial court may exercise its discretion and sentence defendant for count 3.
3. Statutory Bases for Fines, Fees, and Penalty Assessments
During defendant's sentencing hearing, the trial court imposed various fines and fees, including a $390 base fine plus penalty assessments. The court did not expressly specify which penalty assessments it imposed. Various fines, fees, and penalty assessments were set forth in the probation officer's report. The court, however, did not incorporate the probation report's recommendations into its sentencing order. Moreover, the abstract of judgment does not specify the exact amount of fines, fees, and penalty assessments or the statutory basis for each fine, fee, or penalty assessment. Under a section titled "Other orders," the abstract of judgment merely states that defendant is to "pay [a] fine of $1804.00." We requested supplemental briefing on whether the court erred in failing to specify the amounts and statutory bases for all fines, fees, and penalty assessments. Both parties agree the court erred.
"Although . . . a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment." (People v. High (2004) 119 Cal.App.4th 1192, 1200.) "[I]n cases where the amounts and statutory bases for the penalty assessments have been set forth in a probation report, a sentencing memorandum, or some other writing, the court could state the amount and statutory basis for the base fine and make a shorthand reference in its oral pronouncement to 'penalty assessments as set forth in the' probation report, memorandum, or writing . . . ." (People v. Hamed (2013) 221 Cal.App.4th 928, 939-940.)
In this case, the parties acknowledge the probation report sets forth a detailed list of all the fines, fees, and penalty assessments. Thus, we believe it is appropriate to modify the abstract of judgment to reference the fines, fees, and penalty assessments as stated in the probation report.
4. The $1,500 Restitution Fine is Not an Unauthorized Sentence
Next, defendant challenges the trial court's imposition of a $1,500 restitution fine under Penal Code section 1202.4 and a matching $1,500 parole revocation restitution fine under Penal Code section 1202.45. He argues these two fines are unauthorized because they are attributable to defendant's convictions for counts 2 and 3. Since punishment for those convictions must be stayed, he argues imposition of a restitution fine and a parole revocation restitution fine that takes these two convictions into account is erroneous. As we explain below, we find no merit in defendant's claims.
Penal Code section 1202.4, subdivision (b)(1) specifies that the restitution fine shall be set at the court's discretion and shall not be less than $300 and not more than $10,000 for felonies. For misdemeanors, the fine shall not be less than $150 and not more than $1,000. (Pen. Code, § 1202.4, subd. (b)(1).) Penal Code section 1202.4, subdivision (b)(2) sets out a formula that courts may use to calculate the amount of restitution fine to impose. The formula is the product of the minimum fine pursuant to Penal Code section 1202.4, subdivision (b)(1), multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted. (Pen. Code, § 1202.4, subd. (b)(2).)
In Soto, supra, 245 Cal.App.4th 1219, the trial court imposed a separate $150 restitution fine for the defendant's conviction of driving while his privilege was suspended. (Id. at p. 1234.) Since the defendant's misdemeanor conviction was stayed, we held the trial court's imposition of an additional restitution fine for this stayed count violated Penal Code section 654 and constituted an unauthorized sentence. (Soto, supra, at pp. 1234-1235.) Similarly, in People v Le (2006) 136 Cal.App.4th 925 (Le), the trial court imposed a restitution fine of $4,800 " 'under the formula permitted by [Penal Code section] 1202.4.' " (Id. at p. 932.) We concluded the trial court erred when it considered a count that should have been stayed under Penal Code section 654 when computing the defendant's restitution fine. (Le, supra, at p. 934.)
Soto and Le are distinguishable. In those cases, it was affirmatively demonstrated that the trial courts considered stayed counts when calculating the respective restitution fines. In contrast, the record here does not indicate the trial court took counts 2 and 3 into consideration when it determined defendant's fines. At the time of his sentencing, the trial court imposed a $1,500 restitution fine under Penal Code section 1202.4. It did not reference any of defendant's counts and did not specify it was using the formula set forth under Penal Code section 1202.4. The probation report recommended defendant "be required to pay a restitution fine of $750.00 times the number of years, times the number of felony counts for a total restitution fine of $TBD." Handwritten below the "$TBD" on the probation report is the number "$1,500." Although the probation report referenced the formula by citing Penal Code section 1202.4, subdivision (b)(2), the trial court made no comments expressing it intended to use the formula.
We agree that arithmetically, we can come to a $1,500 figure if we select the base amount of $300 for each of defendant's felony convictions and $150 for the misdemeanor conviction and multiply the sum by two, the number of years of defendant's sentence. However, we would be speculating if we accepted defendant's claim that the trial court used the formula set forth under Penal Code section 1202.4, subdivision (b)(2).
" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Since the record does not affirmatively reflect the court erroneously considered counts 2 and 3 when calculating defendant's restitution fine, defendant has not met his burden on appeal to demonstrate error. The $1,500 restitution fine was well within the statutory limits as stated in Penal Code sections 1202.4 and 1202.45. As a result, it does not constitute an unauthorized sentence.
In the alternative, defendant argues his trial counsel was ineffective for failing to object to the fines below. Since we have reached the merits of defendant's claims, we do not need to examine his claim of ineffective assistance of counsel.
5. Fee Imposed Under Government Code Section 76000
During the sentencing hearing, the trial court ordered defendant to pay a "base fine" of $390 plus "penalty assessments." According to the probation report's recommendations, one of the penalty assessments was a $273 fee "per GC 76000(a)(1)." Defendant argues the fee imposed under Government Code section 76000, subdivision (a)(1) constituted an unauthorized sentence and should be reduced to $195. The People concede. We agree that it appears the court erroneously imposed the fine without making the requisite factual determinations.
Defendant did not object to the imposition of this fee below, but since the fine constitutes an unauthorized sentence his failure to object below does not bar his claim on appeal. (Soto, supra, 245 Cal.App.4th at pp. 1229-1230.)
Government Code section 76000, subdivision (a)(1) provides that "[e]xcept as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part often dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." Seventy percent of defendant's $390 base fine is $273.
Defendant argues Government Code section 76000, subdivision (e), not subdivision (a)(1) applies. Government Code section 76000, subdivision (e) provides that "[t]he seven-dollar ($7) additional penalty authorized by subdivision (a) shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by Section 76100 as of January 1, 1998, when the money in that fund is transferred to the state under Section 70402." It then clarifies that "[t]he amount each county shall charge as an additional penalty under this section shall be as follows," with Monterey County listed as "$5.00." (Ibid.) Thus, defendant claims his $390 base fine should have been subject to a 50 percent penalty, for a total penalty of $195.
Soto, supra, 245 Cal.App.4th 1219 is directly on point. In Soto, we held that the language of Government Code section 76000, subdivision (e) appears to mandate a penalty imposed under Government Code section 76000, subdivision (a)(1) be reduced to $5 (from $7) for every $10 imposed. (Soto, supra, at p. 1229.) We further noted Government Code section 76000, subdivision (e) references Government Code section 76100, which does not require the establishment of a courthouse construction fund. (Soto, supra, at p. 1229.) In Soto, the trial court did not determine if Monterey County had established a courthouse construction fund, and the People on appeal did not supply information which conclusively showed such a fund had been established. (Id. at pp. 1229-1230.) Thus, in the interest of judicial economy, we assumed that Monterey County had a local courthouse construction fund and reduced the penalty to $195. (Id. at p. 1230.)
As in Soto, the trial court did not determine if a courthouse construction fund exists in Monterey County. Moreover, neither party has supplied us with any information about the existence of such a fund. However, unlike Soto, we are already remanding the matter to the trial court so it may impose a sentence on count 3. Thus, the trial court will have the opportunity to make the appropriate factual determinations on remand. If on remand the trial court determines Monterey County has a local courthouse construction fund, we direct it to reduce defendant's fine imposed under Government Code section 76000, subdivision (a) to $195. If no courthouse construction fund exists, defendant's fine will stand at $273.
6. Fee Imposed Under Penal Code Section 1463 .07
Next, defendant challenges the imposition of a $25 administrative fee imposed under Penal Code section 1463.07. The People concede the fee was erroneously imposed, because it applies only to a person who is "arrested and released on his or her own recognizance upon conviction of any criminal offense related to the arrest other than an infraction." (Pen. Code, § 1463.07.) We find the People's concession to be appropriate. The record does not reflect defendant was ever released on his own recognizance. Thus, the $25 fee imposed under Penal Code section 1463.07 was unauthorized and should be stricken.
Because this is an unauthorized sentence, defendant's failure to object below does not bar his claim on appeal. (Soto, supra, 245 Cal.App.4th at pp. 1229-1230.)
7. Installment Account Fee Under Penal Code Section 1205, Subdivision (e)
Lastly, defendant argues the trial court was not authorized to impose a $55 installment account fee under Penal Code section 1205, subdivision (e), because there is nothing in the record to reflect defendant was ordered to pay his fine in installments. The People concede, and we accept their concession. Penal Code section 1205, subdivision (e) "limits those fees collected for processing of accounts receivable that are not to be paid in installments to $30." (Soto, supra, 245 Cal.App.4th at p. 1232.) Since defendant was not ordered to pay his fine in installments, we find the $55 is unauthorized and reduce it to $30. (Soto, supra, at p. 1233.)
Again, because defendant claims the imposition of this fee is an unauthorized sentence, it is not barred on appeal for his failure to object below. (Soto, supra, 245 Cal.App.4th at pp. 1229-1230.) Furthermore, we note the probation report indicates the fee was imposed under Penal Code section 1205, subdivision (d). Penal Code section 1205 was amended on June 28, 2012, and Penal Code section 1205, subdivision (d) was relettered as subdivision (e). (Stats. 2012, ch. 49, § 1; Soto, supra, at p. 1231, fn. 5.) Thus, defendant argues the fee was actually imposed under Penal Code section 1205, subdivision (e), not subdivision (d). To clarify, we modify the judgment to reflect the fee was imposed under Penal Code section 1205, subdivision (e). --------
DISPOSITION
The judgment is reversed. On remand, the trial court is directed to impose and stay a sentence for defendant's conviction of driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 3). The trial court is further directed to stay defendant's sentence for his conviction of driving while having a 0.08 percent or higher blood-alcohol content (Veh. Code, § 23152, subd. (b); count 2).
The clerk of the trial court is directed to prepare an amended abstract of judgment that sets forth the amount of and statutory basis for all of defendant's fines, fees, and penalty assessments by referencing the fines, fees, and penalty assessments listed in the probation report with the following modifications: (1) the $25 fee imposed under Penal Code section 1463.07 is stricken and (2) the $55 fee imposed under Penal Code section 1205, subdivision (d) is reduced to $30 and modified to reflect it is imposed under Penal Code section 1205, subdivision (e). Moreover, the trial court is directed to determine if Monterey County has a local courthouse construction fund. If on remand the trial court determines Monterey County has a local courthouse construction fund, the fine imposed under Government Code section 76000, subdivision (a) is reduced to $195. If no courthouse construction fund exists, the fine imposed under Government Code section 76000, subdivision (a) will remain at $273.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.