Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge, Super. Ct. Nos. VCF143290 & VCF130264
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On August 18, 2004, appellant, Estevan Reyna, pleaded guilty to one count each of possession of methamphetamine (Health & Saf. Code, § 11377) and misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) in Tulare County Superior Court case No. VCF130264 (case No. VCF130264). On September 13, 2004, the trial court granted appellant deferred entry of judgment (DEJ) (Pen. Code, § 1000), which included required drug education and testing, a $210 diversion restitution fee, a $150 administrative fee, and an unspecified fee of $50 per month.
On November 3, 2005, a jury convicted appellant of one count of possession of stolen property (Pen. Code, § 496, subd. (a)) in Tulare County Superior Court case No. VCF143290 (case No. VCF143290).
On December 5, 2005, the trial court revoked appellant’s DEJ in case No. VCF130264 because of his conviction in case No. VCF143290. The court then sentenced appellant to the middle term of two years on his possession of stolen property conviction and a concurrent two-year term on his possession of methamphetamine conviction.
On March 1, 2007, this court affirmed the judgment of conviction in case No. VCF143290. (People v. Reyna (Mar. 1, 2007,F049381) [nonpub. opn].)
The procedural history is taken substantially verbatim from our per curiam opinion in case No. F049381 filed March 1, 2007.
The abstract of judgment of the December 5, 2005, sentencing hearing showed, as to each case, imposition of a $500 restitution fine (Pen. Code, § 1202.4) and imposition and suspension of a second such fine pending successful completion of parole (§ 1202.45). As to each case, the abstract reflected a $20 court security fine and an order to pay $530 “as directed by the Probation report.” As to case No. VCF143290, the abstract directed a $500 payment “purs to 1203.1b.” As to case No. VCF130264, the court awarded 44 days of custody credits for time served. No custody credit was awarded in case No. VCF143290.
On July 20, 2006, appellant filed a motion to amend the abstract of judgment, contending (a) he was entitled to extra presentence credits on each sentence for the time he was in custody (as separately set forth in the motion and as additionally might be shown for the period May 31 through July 15, 2005, by a requested jail printout); (b) the abstract did not accurately reflect the single set of fines and fees actually imposed by the trial court; and (c) the trial court erroneously imposed an unspecified $530 fine as well as drug fees in a non-drug case (case No. VCF143290).
On August 11, 2006, the Tulare County District Attorney filed written opposition to the motion.
On August 30, 2006, the court conducted a contested hearing and granted the motion as to the specified calculation of presentence custody credits but did not address the jail printout request. The court as requested awarded 134 days of credits in case No. VCF130264 and 133 days of credits in case No. VCF143290. The court denied the motion as to the challenged fines and fees. The court declined to modify the $500 restitution fine and $20 court security fee imposed in each case because “[t]here are two distinct cases here.” As to the imposition of the $530 fine in the drug case (case No. VCF130264), the court declined to modify the amount but did place a complete breakdown of the challenged fine on the record:
Amount
Nature of Fine/Fee
Statutory Authority
Criminal laboratory analysis fee $50
Health and Safety Code section 11372.5
$100
Drug program fee
Health and Safety Code section 11372.7
$150
State penalty assessment
Penal Code section 1464, subdivision (a)
Criminal justice facilities fund $67.50
Government Code section 76101
$15
Courthouse construction fund
Government Code section 76100
$15
Dinuba Courthouse construction fund
Government Code section 76100
$7.50
Maddy emergency medical services
Government Code section 76104
$45
State court construction fund
Government Code section 70372
Criminal fine surcharge $30
Penal Code section 1465.7
$15
DNA identification fund
Government Code section 76104.6
$35
Accounts receivable fee
Penal Code section 1205, subdivision (d)
Appellant did not interpose objections to the court’s rulings at the August 30, 2006, hearing.
On October 23, 2006, appellant filed a timely notice of appeal from the order upon modification of sentencing.
FACTS OF UNDERLYING OFFENSES
The facts of the offenses underlying appellant’s convictions are not relevant to the issues raised on appeal and thus will not be set forth. Suffice to say that as set forth above, appellant was convicted of possession of methamphetamine and subsequently of possession of stolen property.
DISCUSSION
On appeal appellant raises five issues pertaining to orders resulting from the August 30, 2006 hearing. We will address them seriatim.
I.
CUSTODY CREDITS: FAILURE TO ORDER JAIL PRINTOUT
Insofar as time credits are concerned appellant’s July 20, 2006 motion to amend abstract of judgment sought in case No. VCF130264, 134 total days credit, and in case No. VCF143290, 133 total days credit. The motion further alleged “Moveover, Mr. Reyna may be entitled to extra credit in both cases. The record sheds no light on the date he was taken into custody after failing to appear on May 31, 2005. It is respectfully requested that this court order a jail printout to determine whether additional credits are due from May 31, 2005 to July 15, 2005.”
Following the hearing the court awarded the enumerated credits requested in each case. However, the court did not address the “printout” or the period May 31, 2005 to July 15, 2005.
On appeal appellant contends the court erred in failing to order a jail printout. He asserts without the printout he is unable to determine the exact date he was taken into custody during the May-July time period.
He specifically argues:
“At the request of appellant’s counsel, the probation officer, Delia M. Huerta, recalculated appellant’s custody credits. Ms. Huerta provided a handwritten computation that is attached as an exhibit to the motion.
“On the surface, the handwritten computation appears to suggest that there were no dates of prejudgment custody beyond what was included in the motion. However, this court cannot be certain that Ms. Huerta’s information is accurate and complete. She did not cite the source of her information on the handwritten sheet, nor did she prepare and file an updated probation report setting forth the new dates.
“While it is presumed that a probation officer has an official duty of accuracy in preparing a formal probation report, no such presumption can be established from an informal handwritten sheet prepared merely at appellate counsel’s request. Ms. Huerta’s handwritten calculations do not rise to the level of evidence required at a sentencing hearing. As she had no official duty to prepare the document, there is no accountability to the court. [¶] ... [¶]
“As noted in the motion, the record fails to indicate the date appellant was taken into custody after failing to appear on May 31, 2005. Since he may be entitled to extra credits in both cases, appellant respectfully requested that the trial court order a jail printout to cover the period from May 31, 2005 through July 15, 2005.”
The trial court stated at the August 30, 2006 hearing on motion for modification of judgment:
“All right. There are actually three requests in this petition. The first is to add additional presentence credits. The People did not contest that in their pleadings, so it’s alleged that the court did not give the defendant presentence credits on case number 143290 so his custody credits should be in case number 130264 his custody credits should have been actual 90 days, good-time work-time credits total 44 which equal 134 presentence credits. Now the abstract which was filed December 9th 2005 may already reflect that on case number 130264 but what the request is, that he was not given any presentence credits on case number 143290 and he should have and I am going to give him presentence credits on 143290 as follows, actual days 89 good-time credits work-time credits 44 so that case 143290 he will be given credit for 133 days spent in custody prior to sentence in December of ’05.”
Appellant did not object to or challenge the foregoing award of credits at the August 30, 2006 hearing and did not argue at the hearing for entitlement to credits for any additional period of incarceration. Under these facts and circumstances, appellant’s contention must be deemed waived on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 351-356.)
It does not appear from the record on appeal that the custody credits ordered at the August 30, 2006 hearing are reflected in an abstract of judgment in such record. We will thus order the trial court in its amended abstract of judgment to correctly and properly set forth appellant’s awarded credits. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; People v. Guillen (1994) 25 Cal.App.4th 756, 764.)
II.
CLAIMED INCREASE IN PUNISHMENT
In issue V, appellant ultimately challenges the amounts of the restitution fine and parole revocation fine imposed in case No. VCF130264. We will address the propriety of the amounts at that point in our discussion.
Appellant contends the trial court increased his punishment in the August 30, 2006 order by adding an additional set of fines, in violation of the double jeopardy clauses of the United States and California Constitutions (U.S. Const., 5th Amend; Cal. Const., art. I, §§ 15, 24).
The report and recommendation of the probation officer filed November 30, 2005, recommended a grant of probation, the imposition of a $500 restitution fine, as a condition of probation, in case No. VCF143290 and the imposition of a $500 restitution fine, as a condition of probation, in case No. VCF130264. The court read the sentencing report and recommendation. Contrary to the recommendation the court denied probation and sentenced appellant to state prison. The court stated in relevant part at the sentencing hearing held December 5, 2005:
“… The Court is sentencing the defendant to two years in state prison on Case 143290. And ... the Court finds the defendant has 30 days actual time served plus seven days good time, seven days work time for a total of 44 days credit.
“In Case No. VCF130264, the sentence range is 16, two, three. And the defendant is ordered to serve two years in state prison concurrent with the term imposed in Case No. 143290. And the Court is giving him the concurrent term although I could have given him a consecutive one based on the fact that his record is not serious.
“The Court is ordering the defendant to pay a restitution fine of $500 under ... 1202.4 of the Penal Code. He is also ordered to pay a probation revo[c]ation restitution fine under ... 1202.44 of the Penal Code. This is to be suspended pending a successful completion of probation. He is ordered to pay a court security fee of $20 pursuant to 1465.8 of the Penal Code. This is to be collected by the Department of Corrections who shall deposited [sic] with the Trial Court Security Fund.”
We note that some of the confusion may arise from the fact that the probation report recommended probation and included appropriate probationary recommendations and the trial court chose instead to impose a prison sentence.
The abstract of judgment reflected a $500 restitution fine and $20 security fee in each case.
In his July 20, 2006 motion, appellant moved to amend the abstract of judgment asserting “[o]nly one set of fines and fees was ordered in open court, as reflected in the Reporter’s Transcript.” Appellant’s pleading did not cite to the state and federal constitutional prohibitions against double jeopardy. On August 11, 2006, respondent filed written opposition to the motion, maintaining multiple fines are permissible in consolidated cases and noting that the fines and fees were properly set forth in the probation report and abstract of judgment.
On August 30, 2006, the court conducted a hearing on appellant’s motion for modification of sentencing and ruled:
“Now the second issue involves a request that on December 5th 2005 the court ordered a $500 restitution fine on each case and a $20 court security fee on each case. The petition alleges that these should not have been ordered separately. That there should only be one restitution fine and only one $20 court security fee. Because it’s the defense’s position that the court can only impose one set of fines in cases sentenced together. I disagree.
“There are two distinct cases here and the ruling of a $500 restitution fine in each case and a $20 court security fee in each case seems appropriate and I’m not modifying that.”
Appellant contends on appeal:
“Although there was no double jeopardy objection below, the issue can be raised on appeal without an objection below, both on its own (People v. Saunders (1993) 5 Cal.4[th] 580, 589, fn. 5; People v. Vera (1997) 15 Cal.4[th] 269, 276), and because it would be Sixth Amendment and state-law ineffective assistance for trial counsel to fail to raise a meritorious double jeopardy issue. (People v. Belcher (1974) 11 Cal.3d 91, 96; People v. Scott (1997) 15 Cal.4[th] 1188, 1201.) An issue that a trial court lacked jurisdiction to resentence can be raised for the first time on appeal because if the trial court lacked jurisdiction to resentence, then the resentence is legally unauthorized, and an unauthorized sentence can be corrected at any time. (People v. Smith (2001) 24 Cal.4[th] 849, 852.) [¶] ... [¶]
“It is unconstitutional for a trial court to double an appellant’s punishment during the course of an appeal, particularly following a motion to conform an erroneous clerical document to the original judgment.”
We initially note under the Fifth Amendment to the United States Constitution, a defendant may be subject to increased punishment upon retrial. (North Carolina v. Pearce (1969) 395 U.S. 711, 719-721.) Therefore, appellant’s reliance upon federal double jeopardy principles is misplaced here. In contrast, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. Statutorily mandated restitution fines come within this rule, because such fines constitute punishment. (People v. Hanson (2000) 23 Cal.4th 355, 357.) Relying upon Hanson, appellant submits the trial court “punished appellant by adding an extra set of fines, eight months after the original judgment at which only one set of fines was pronounced.” However, a careful review of the record supports the position of respondent that “[t]he court did not double appellant’s fine after he moved to correct the fines and fees. It merely clarified the fines imposed.”
Certain fines, fees, and assessments are mandatory. (See, e.g., People v. Talibdeen (2002) 27 Cal.4th 1151, 1153, 1157; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1257.) A sentencing court that fails to impose them has imposed an unauthorized sentence. (People v. Talibdeen, supra, at pp. 1153, 1157; People v. Smith (2001) 24 Cal.4th 849, 852-853.) Both Penal Code section 1202.4, subdivision (b) and Penal Code section 1202.45 use the mandatory term “shall.” An appellant is not entitled to avoid mandatory fines and fees merely because the court erred by failing to articulate the authority under which they were imposed or failed to articulate their imposition in cases bearing separate docket numbers. Instead, a sentencing court should be given the opportunity to correct such errors and ambiguities and the trial court properly sought to do so at the August 30, 2006 hearing on modification of sentencing.
Again, the propriety of the amounts of the restitution fine and parole revocation fine imposed in case No. VCF130264 will be addressed in issue V.
III.
DRUG FINES
Appellant contends and the People concede that only one $530 fine should have been imposed because only case No. VCF130264 included a qualifying drug offense. The parties agree the abstract incorrectly lists a $530 fine in case No. VCF143290.
An appellate court that properly assumes jurisdiction of a case may order the correction of abstract of judgment that does not accurately reflect the oral judgment of the sentencing court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Thus, we will strike the fine and direct the trial court to correct the abstract of judgment by deleting the $530 fine imposed as to case No. VCF143290. (See People v. Guillen, supra, 25 Cal.App.4th at p. 764.)
Further, as to the fine totaling $530 properly imposed in case No. VCF130264 the components of which were stated by the trial court in open court and are set forth ante; pursuant to the case of People v. High (2004) 119 Cal.App.4th 1192, 1200, such fines, fees and penalties shall be separately listed with statutory basis in the amended abstract of judgment which we will direct prepared.
IV.
THE $500 SECTION 1203.1b FINE
Appellant argues:
“The abstract of judgment for the original December 5, 2005 sentencing states that, in Case VCF143290, ‘Deft to pay $500 purs to 1203.1b.’ Nothing in the reporter’s transcript of the December 5, 2005 sentencing indicates that the trial court actually imposed this fine or fee. Neither is the fine or fee mentioned at the August 30, 2006 resentencing. As the trial court never imposed this fine or fee, it must be deleted from the abstract of judgment.”
Respondent offers no contrary argument.
The report and recommendation of the probation officer filed November 30, 2005, recommended the imposition of a $500 restitution fine, as a condition of probation, in case No. VCF143290 and the imposition of a $500 restitution fine, as a condition of probation, in case No. VCF130264. As to each case, the deputy probation officer recommended, among other things:
“Based on his/her present and future ability to pay, the defendant pay $500 for the cost of preparation of the pre-sentence investigation report pursuant to Section 1203.1b of the Penal Code. This amount to be paid to the Probation Officer of Tulare County who shall deposit such amount, as received, with the Tulare County Treasurer.”
The court read the sentencing report and recommendation. At the December 5, 2005 sentencing hearing, the court did not cite Penal Code section 1203.1b or order appellant to pay the reasonable costs of conducting a pre-plea investigation or preparing a pre-plea report. Nevertheless, the abstract of judgment filed December 9, 2005, reflected the following order in case No. VCF143290: “Deft to pay $500 purs to 1203.1b.” An abstract of judgment is not the judgment of conviction; it does not control if it differs from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. (People v. Mitchell, supra, 26 Cal.4th at p.185.) If counsel identifies an evident discrepancy between the abstract of judgment and the judgment reflected by the reporter’s transcript and the trial court’s minute order, the appellate court may correct the abstract of judgment. (Id. at p. 188.)
The order “to pay $500 purs 1203.1b” in case No. VCF143290 is stricken and we will direct the trial court to correct the abstract of judgment. (See People v. Guillen, supra, 25 Cal.App.4th at p. 764.)
V.
RESTITUTION FINE PREVIOUSLY IMPOSED
Appellant contends the trial court imposed an unauthorized sentence in case No. VCF130264 by imposing a $500 restitution fine and $500 stayed parole revocation fine after it had already imposed a restitution fine on deferred entry of judgment.
He specifically argues:
“In Case No. VCF130264, appellant originally pled guilty on August 18, 2004 to one felony count of possession of methamphetamine, and one misdemeanor count of being under the influence of same. On September 13, 2004, he was granted 18 months deferred entry of judgment (‘DEJ’), and ordered to pay a diversion restitution fee of $210. DEJ was revoked on November 3, 2005, following his jury trial conviction in Case No. VCF143290. Notwithstanding the DEJ revocation, a second restitution fine of $500 was imposed in Case No. VCF130264 at resentencing on August 30, 2006. The second restitution fine was an unauthorized sentence.”
On September 13, 2004, the trial court placed appellant on the deferred entry of judgment program for 18 months, subject to certain terms and conditions, including: “That you pay an Administrative Screening Fee in the amount of 150 and a 210 restitution fine, $50 a month and I will start that November 5th.” Appellant orally acknowledged the terms and conditions of the DEJ program. The accompanying minute order indicated that appellant’s application for deferred entry of judgment was granted for 18 months subject to various terms and conditions, including the condition that appellant “[p]ay to the Court a Diversion Restitution Fee in the amount of $210 before 11/5/04.”
Penal Code section 1001.90 states in relevant part:
“(a) For all persons charged with a felony or misdemeanor whose case is diverted by the court pursuant to this title, the court shall impose on the defendant a diversion restitution fee in addition to any other administrative fee provided or imposed under the law. This fee shall not be imposed upon persons whose case is diverted by the court pursuant to Chapter 2.8 (commencing with Section 1001.20).
“(b) The diversion restitution fee imposed pursuant to this section shall be set at the discretion of the court and shall be commensurate with the seriousness of the offense, but shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000). [¶]…[¶]
“(i) As used in this section, ‘diversion’ also means deferred entry of judgment pursuant to Chapter 2.5 (commencing with section 1000).”
Appellant submits here:
“… Appellant’s restitution fine in VCF130264 should be $210, based on the original sentence on September 13, 2004. His current prison sentence in VCF130264 is the result of the revoked DEJ in that case. However, his current prison sentence is for the offense in his original plea on August 18, 2004.
“When the trial court imposed a $500 restitution fine at appellant’s December 5, 2005 sentencing, on top of the $210 already imposed on September 13, 2004, there had been no new conviction. When the trial court resentenced appellant on August 30, 2006, ruling that there were two sets of fines rather than one, the $500 restitution fine that was now imposed specifically in VCF130264 was legally unauthorized. The $210 fine remained in force despite revocation of DEJ, and no new fine could be imposed.”
In People v. Arata (2004) 118 Cal.App.4th 195 (Arata), the defendant was charged with corporal injury to a spouse, discharge of a firearm in a grossly negligent manner, making a criminal threat, and brandishing a firearm. He waived his preliminary hearing and entered guilty pleas to the corporal injury and brandishing charges on condition he would receive a grant of probation with a 90-day jail term. In accordance with the plea agreement, the Shasta County Superior Court suspended imposition of sentence, placed defendant on three years’ probation, conditioned the probation of service of 90 days in county jail, and imposed a $600 restitution fine. The superior court ultimately revoked defendant’s probation and sentenced him to four years in state prison. Upon the revocation, the superior court imposed an $800 restitution fine. The defendant maintained the imposition of the second restitution fine was erroneous and the Third District Court of Appeal agreed. (Id. at pp. 197-201.)
Arata cited People v. Chambers (1998) 65 Cal.App.4th 819, and stated a restitution fine must be imposed when a person is convicted of a felony, irrespective of whether probation is granted. (Pen. Code, § 1202.4, subd. (b).) If probation is granted, payment of the restitution fine must be made a condition of that probation. (Pen. Code, § 1202.4, subd. (m).) Although a restitution fine is imposed as a condition of probation, it survives the probationary term. A trial court has no statutory authority to order a second restitution fine upon revocation of probation. That is because a restitution fine imposed as a condition of probation remains in force despite revocation of probation. In Arata, the trial court imposed a $600 fine as a condition when it placed defendant on probation in 1999. Three years later, the trial court revoked the defendant’s probation and imposed a second restitution fine of $800. The trial court was without authority to impose the latter restitution fine. The appellate court modified the judgment of sentence by striking the $800 restitution fine, leaving in force the $600 restitution fine originally imposed pursuant to Penal Code section 1202.4, subdivision (b), and reducing a previously-imposed parole revocation fine to $600. (Arata, supra, 118 Cal.App.4th at pp. 202-203.)
The instant case presents an analogous situation. Here, the trial court imposed a diversion restitution fee (Pen. Code, § 1001.90, subd. (a)) of $210 on September 13, 2004, when it placed appellant in the DEJ program. The court found appellant in violation of probation on November 3, 2005, following appellant’s judgment of conviction in case No. VCF143290. When the trial court conducted the August 30, 2006, hearing on modification of sentence, the $210 fine remained in force despite the finding of a violation of probation and revocation of appellant’s participation in DEJ. Thus, as in Arata, a second restitution fine could not be imposed. Respondent offers no argument to the contrary.
As in Arata, the restitution fine in case No. VCF130264 must be reduced to $210 and the stayed parole revocation fine in the same case must also be reduced to $210 since Penal Code section 1202.45 mandates that the two fines be equal. (See People v. Smith, supra, 24 Cal.4th at pp. 851-853.) We will order the $500 restitution fine imposed in case No. VCF130264 stricken in that case, leaving in place the $210 fine originally imposed and reduce the $500 parole revocation fine imposed to $210.
DISPOSITION
The judgment is modified as follows: (1) the $530 fine imposed in case No. VCF143290 is stricken; (2) the $500 fine pursuant to Penal Code section 1203.1b imposed in case No. VCF143290 is stricken; (3) the $500 fine imposed in case No. VCF130264 is stricken leaving in place the $210 fine originally imposed; and (4) the $500 parole revocation fine imposed in case No. VCF130264 is reduced to $210. In all other respects the judgment as modified is affirmed.
The trial court is directed to prepare and distribute as appropriate an amended abstract of judgment reflecting the above modifications as well as reflecting that appellant was awarded 134 and 133 days of custody credits in case Nos. VCF130264 and VCF143290, respectively. The amended abstract of judgment shall further separately list, with statutory basis, all fines, fees and penalties imposed.
WE CONCUR: WISEMAN, J., KANE, J.