Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC808769
Mihara, J.
In a negotiated disposition, defendant Ruben Gutierrez Cuevas pleaded no contest to two counts of lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)) and admitted allegations of substantial sexual contact with the victim (Pen. Code, § 1203.066, subd. (a)(8)). The trial court committed him to state prison for an eight-year term and ordered him to pay various fines, fees, and penalty assessments. On appeal, defendant challenges the imposition of $795 in unspecified penalty assessments, arguing that the court “never imposed assessments in that amount.” We conclude that a remand is required to permit the trial court to make certain factual findings, calculate the appropriate penalty amounts under former Government Code sections 70372 and 76000, and list the amounts of, and statutory bases for, all penalties imposed.
Further statutory references are to the Government Code unless otherwise noted.
I. Background
The details of defendant’s crimes are irrelevant to the issues he raises on appeal, so we need not recount them. The parties stipulated that the police report provided a factual basis for the entry of defendant’s pleas. The victim reported that the lewd conduct occurred between January 28, 2008 and February 14, 2008.
At sentencing, the court told defendant, “You’re ordered to pay a fine of $300 plus penalty assessment[s] imposed pursuant to Penal Code section 290.3.” The court did not specify the amounts of or identify the statutory bases for the penalty assessments, but the clerk’s minute order includes a handwritten notation stating “$300 + 795 PA purs. PC 290.3.” The abstract of judgment includes a typewritten notation similarly stating “PC290.3 $300 + $795PA.”
Defendant filed a timely notice of appeal.
II. Discussion
A. Waiver
We begin with a potentially dispositive procedural issue. Relying on People v. Scott (1994) 9 Cal.4th 331 (Scott), the Attorney General contends defendant’s failure to object below to the trial court’s lack of specificity waived the issue on appeal. Defendant responds that an abstract of judgment that improperly modifies an oral pronouncement presumably does so as a result of clerical error, and clerical errors can be corrected at any time. Defendant’s position is correct.
“ ‘Rendition of judgment is an oral pronouncement.’ ” (People v. Mesa (1975) 14 Cal.3d 466, 471 (Mesa).) “An abstract of judgment is not the judgment of conviction; it does not control if different 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 (2001) 26 Cal.4th 181, 185 (Mitchell).) “Entering the judgment in the minutes being a clerical function (Pen. Code, § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.” (Mesa, at p. 471.) “Courts may correct clerical errors at any time....” (Mitchell, at p. 185.) “[A] court—including an appellate court—that properly assumes or retains jurisdiction of a case ‘may correct such errors on its own motion or upon the application of the parties.’ ” (Mitchell, at pp. 186-187, quoting In re Candelario (1970) 3 Cal.3d 702, 705).)
The Attorney General’s reliance on Scott is misplaced. In Scott, the court held that a criminal defendant cannot for the first time on appeal challenge a trial court’s “failure to properly make or articulate its discretionary choices.” (Scott, supra, 9 Cal.4that pp. 353, 356, italics added.) Scott is inapposite here, because the penalty assessments that defendant challenges are mandatory. (Pen. Code, §§ 1464, 1465.7; former §§ 70372, 76000, 76000.5, 76104.6; § 76104.7.) We conclude that defendant’s failure to object below did not waive the issue on appeal, and we proceed to the merits.
B. The Merits
Conceding the propriety of the $300 fine that the trial court imposed pursuant to Penal Code section 290.3, defendant challenges only the $795 in associated penalty assessments. He contends the trial court erred “in generally noting that ‘penalty assessments’ should be imposed, and apparently leaving it to someone else to determine the proper amounts.” Defendant does not state what amounts he contends might be proper. Instead, he argues that a remand is required “[b]ecause the court must specify each and every separate fine, fee and assessment in the abstract of judgment....” The Attorney General responds that since the penalty assessments associated with the Penal Code section 290.3 fine are mandatory, we can more easily remedy the error by directing the trial court to (1) attach a chart that this court judicially noticed on October 20, 2009 to the abstract of judgment, and then (2) modify the abstract to state that $795 in penalty assessments are imposed as specified in that chart. We cannot accept the Attorney General’s suggested approach.
To the extent defendant contends we should simply strike the $795 in penalty assessments, we reject his contention. The $300 fine was properly imposed, as he concedes. Because the assessments associated with that fine are statutorily mandated, neither the trial court nor this court can choose not to impose them. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.)
Judicial notice of a document generally suffices only to establish its existence. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (R. J. Reynolds), overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) “While courts may notice official acts and public records, ‘we do not take judicial notice of the truth of all matters stated therein.’ ” (R. J. Reynolds, at p. 1063.) “[T]he truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)
Our difficulty with the Attorney General’s approach is that the contents of the chart are reasonably disputable. The chart is a computer printout titled “Criminal Division (265%).” The Attorney General describes it as “the Santa Clara County penalty assessment chart... provided by [the] Santa Clara County Superior Court Manager, and [the] Superior Court Director of Finance.” We do not know who prepared the chart, when it was prepared, or how the penalty amounts it lists were calculated. The Attorney General does not vouch for the accuracy of the information the chart contains. It appears to us that some of the calculations depend on assumptions that are both internally inconsistent and unsupported by the record. Because the contents of the chart are reasonably subject to dispute, we must reject the Attorney General’s suggested approach. (See Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192 [declining to judicially notice contents of human resources manual where tribe provided “no information about [their] source, legal effect, or official ratification”].)
Penalties assessed pursuant to former section 76000, for example, are subject to reduction in counties that have established a local courthouse construction fund. (See People v. McCoy (2007) 156 Cal.App.4th 1246, 1252-1254 (McCoy).) Similarly, penalties assessed pursuant to former section 70372 are subject to reduction in counties that have established a local courthouse construction fund or that are participating in the Transitional State Court Facilities Construction Fund. (McCoy, at pp. 1252-1254.) The chart provided by the Attorney General is internally inconsistent because it calculates the former section 70372 penalty amounts on the apparent assumption that Santa Clara County’s Board of Supervisors has established a local courthouse construction fund, but contradictorily calculates the former section 76000 penalty amounts on the apparent assumption that the board hasnot established such a fund. (Former §§ 70372, subd. (a)(1)-(2), 70375, subd. (b)(1), 76000, subd. (e).). We have been unable to determine whether Santa Clara County has established a local courthouse construction fund or whether it is participating in the Transitional State Court Facilities Construction Fund.
When defendant committed his crimes, Penal Code section 290.3 fines were subject to state assessments under Penal Code sections 1464 and 1465.7 and to county assessments under former sections 70372, 76000, 76000.5, 76104.6 and section 76104.7. (See, e.g., People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249; People v. Walz (2008) 160 Cal.App.4th 1364, 1372-1373.)
In discussing the statutory basis for each penalty assessment, we refer to the statute in effect when defendant committed his crimes. (See People v. Batman (2008) 159 Cal.App.4th 587, 590-591 [if defendant’s criminal act preceded enactment of penalty assessment, imposition of penalty violates ex post facto laws].)
100 Percent State Penalty Assessment:
Penal Code section 1464, subdivision (a)(1) provides in pertinent part that “there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10)... upon every fine... imposed and collected by the courts for all criminal offenses... except parking offenses....” (Stats. 2007, ch. 302, § 17.)
20 Percent State Surcharge:
Penal Code section 1465.7, subdivision (a) provides in pertinent part that “[a] state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of [Penal Code] Section 1464.” Penal Code section 1465.7, subdivision (b) provides that “[t]his surcharge shall be in addition to the state penalty assessed pursuant to Section 1464 of the Penal Code....” (Stats. 2007, ch. 176, § 63.)
County Penalty Assessment:
Former section 76000, subdivision (a)(1) provided in pertinent part that “[e]xcept as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10)... upon every fine... imposed and collected by the courts for all criminal offenses....” (Stats. 2007, ch. 302, § 4, eff. Jan. 1, 2008-Dec. 31, 2008.) Former section 76000, subdivision (e) provided 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 71600 as of January 1, 1998, when the money in that fund is transferred to the state under Section 70402. The amount each county shall charge as an additional penalty under this section shall be as follows:... [¶] Santa Clara $5.50.” (Stats. 2007, ch. 302, § 4, eff. Jan. 1, 2008-Dec. 31, 2008.)
The language of former section 76000, subdivision (e) appears to mandate a reduction in the penalty from $7 to $5.50 of every $10 of fine imposed. But its reference to section 76100, which has since January 1, 2006 provided that “the board of supervisors may establish in the county treasury a Courthouse Construction Fund” (§ 76100, subd. (a), italics added), makes the applicability of the reduction less than clear. We are unable to determine whether Santa Clara County has established a local courthouse construction fund. The Attorney General has not affirmatively asserted that it has, nor has he identified any statutory authority, matters judicially noticeable, or evidence in the record to support a finding either way. Without this information, we cannot determine the amount of the former section 76000 penalty. Consequently, we must remand the case for the trial court to make the requisite factual finding.
State Court Facilities Construction Fund Penalty:
Former section 70372, subdivision (a)(1) provided in pertinent part that “[e]xcept as otherwise provided in subdivision (b) of Section 70375 and in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10)... upon every fine... imposed and collected by the courts for all criminal offenses.... This penalty is in addition to any other state or local penalty, including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000.” (Stats. 2007, ch. 302, § 2, eff. Jan. 1, 2008-Dec. 31, 2008.) Former section 70372, subdivision (a)(2) provided that “[t]he amount of the court construction penalty may be reduced by a county as provided in subdivision (b) of Section 70375.” (Stats. 2007, ch. 302, § 2, eff. Jan. 1, 2008-Dec. 31, 2008.)
Former section 70375, subdivision (b) identified two circumstances where the $5 state court construction penalty on every $10 of a fine should be reduced. (See McCoy, supra, 156 Cal.App.4th at p. 1253.) “In each county, the five-dollar ($5) penalty amount authorized by subdivision (a) of Section 70372 shall be reduced by the following: [¶] (1) The amount collected for deposit into the local courthouse construction fund established pursuant to Section 76100. If a county board of supervisors elects to distribute part of the county penalty authorized by Section 76000 into the local courthouse construction fund, the amount of the contribution for each seven dollars ($7) is the difference between seven dollars ($7) and the amount shown for the county penalty in subdivision (e) of Section 76000. [¶] (2) The amount collected for transmission to the state for inclusion in the Transitional State Court Facilities Construction Fund established pursuant to Section 70401 to the extent it is funded by money from the local courthouse construction fund.” (Stats. 2007, ch. 302, § 3, eff. Jan. 1, 2008-Dec. 31, 2008.)
As previously noted, we are unable to determine whether Santa Clara County has established a local courthouse construction fund. Nor can we determine whether the county participates in the Transitional State Court Facilities Construction Fund. Neither the Attorney General nor defendant mentions these factual issues. Because we cannot determine whether the surcharge authorized by former section 70372 should be reduced in accordance with former section 70375, we must remand the case for the trial court to make the requisite factual findings. (See People v. Taylor(2004) 118 Cal.App.4th 454 (Taylor) [remanding case for determination whether Sacramento County had established a local courthouse construction fund and whether it was participating in the Transitional State Court Facilities Construction Fund].)
20 Percent Emergency Medical Services Penalty:
Former section 76000.5, subdivision (a)(1) provided in pertinent part that “for purposes of supporting emergency medical services... in addition to the penalties set forth in Section 76000, the county board of supervisors may elect to levy an additional penalty in the amount of two dollars ($2) for every ten dollars ($10)... upon every fine... imposed and collected by the courts for all criminal offenses.... This penalty shall be collected together with and in the same manner as the amounts established by section 1464 of the Penal Code.” (Stats. 2007, ch. 302, §5, eff. Jan. 1, 2008-Dec. 31, 2008.)
This penalty is the only one defendant specifically challenges. He claims it is not clear it applies because “there is no Santa Clara County ordinance authorizing imposition of that penalty” and nothing in the record to provide a basis for imposing it. Defendant has not, however, opposed the Attorney General’s October 22, 2009 request that we judicially notice the Santa Clara County Board of Supervisors’ resolution authorizing imposition of the emergency medical services penalty, along with the agenda for, and minutes of, the April 10, 2007 meeting at which the resolution was adopted. We grant the Attorney General’s request. (Evid. Code, § 452, subds. (b)-(d); see Evans v. City of Berkeley (2006) 38 Cal.4th 1, 9 & fn. 5 [judicially noticing minutes “[i]n the absence of a sound objection”]; Mapstead v. Anchundo (1998) 63 Cal.App.4th 246, 255, fn. 3 [where facts of case were “essentially undisputed,” judicially noticing board of supervisors’ resolution].) That the resolution (agenda item number 6) was adopted on April 10, 2007 is a matter not reasonably subject to dispute, and we judicially notice the fact of its passage, as reflected in the official Summary of Proceedings of the Board of Supervisors for Santa Clara County. (Evid. Code, §§ 452, subds. (b), (d) & (h), 455, 459.)
10 Percent DNA Identification Fund Penalty:
Former section 76104.6, subdivision (a) provided in pertinent part that “(1)... for the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10)... upon every fine... imposed and collected by the courts for all criminal offenses.... [¶] (2) The penalty imposed by this section shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code.” (Stats. 2007, ch. 302, § 7, eff. Jan. 1, 2008-Sept. 29, 2008.)
10 Percent DNA Identification Fund Surcharge:
Section 76104.7, subdivision (a) provides in pertinent part that “in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of one dollar ($1) for every ten dollars ($10)... upon every fine... imposed and collected by the courts for all criminal offenses....” (Stats. 2007, ch. 302, § 8.)
Based on the formulas set forth in these statutes, we conclude that, in addition to the penalties mandated by former sections 70372 and 76000, which the trial court will need to calculate after making the requisite factual findings on remand, the following penalty amounts should have been assessed in this case: $300 under Penal Code section 1464, subdivision (a)(1), $60 under Penal Code section 1465.7, subdivision (a), $60 under former section 76000.5, subdivision (a)(1), $30 under former section 76104.6, subdivision (a), and $30 under section 76104.7, subdivision (a).
We remind the trial court that to facilitate review of the penalty assessments imposed in a case and to assist in collection efforts, it is important that the court recite in the record the statutory bases for any penalties it imposes. (See Taylor, supra,118 Cal.App.4th at pp. 456-460; People v. High (2004) 119 Cal.App.4th 1192, 1200 (High).) “Although we recognize that 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.” (High,at p. 1200.)
III. Disposition
The judgment is reversed, and the matter is remanded to the trial court for the sole purposes of (1) making the requisite factual findings and (2) correcting the amounts of, and properly specifying the statutory bases for, all penalty assessments imposed. The court is directed to (1) determine whether Santa Clara County has established a local courthouse construction fund and/or whether it is participating in the Transitional State Court Facilities Construction Fund; (2) calculate the amounts of the penalty assessments mandated by former sections 76000, subdivision (a)(1) and 70372, subdivision (a)(1) and modify the judgment to reflect imposition of those penalties; and (3) further modify the judgment to reflect additional penalty assessments of $300 under Penal Code section 1464, subdivision (a)(1), $60 under Penal Code section 1465.7, subdivision (a), $60 under former section 76000.5, subdivision (a)(1), $30 under former section 76104.6, subdivision (a), and $30 under section 76104.7, subdivision (a). The trial court is directed to prepare an amended abstract of judgment listing the amount of, and statutory basis for, each penalty imposed, and to forward a certified copy of that abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: Elia, Acting P. J., McAdams, J.