Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge., Super. Ct. No. VCF159812
Richard Jay Moller, 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 and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J. and Dawson, J.
INTRODUCTION
The trial court convicted by plea appellant, Manuel Fred Fierro, of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); Case A), and evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a); Case A). The trial court also revoked appellant’s probation and reinstated his convictions for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); Case B), possession of marijuana (§ 11357, subd. (b); Case B), and possession of drug paraphernalia (§ 11364; Case B). The court imposed a prison term of three years. The court also imposed various monetary orders.
All further statutory references are to the Health and Safety Code unless otherwise stated.
On appeal, appellant argues that the court erred: (1) when it failed to separately list and identify the statutory basis of fines, fees, and penalties imposed; and (2) when it imposed certain fees. We disagree and affirm the judgment. We agree, however, with appellant’s contention that the matter must be remanded for correction of the abstract of judgment, because the trial court improperly aggregated the fees, fines, and penalties.
FACTS AND PROCEEDINGS
In December 2005, a Visalia police officer attempted to stop a stolen car driven by appellant. Instead of stopping, appellant led officers in a car pursuit, which ended after appellant crashed the car into an apartment building and fled on foot. Appellant was on probation at the time.
On July 25, 2006, appellant pleaded no contest in Tulare County Superior Court case No. VCF159812 (Case A) to unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)), both with three special allegations of Penal Code section 667.5, subdivision (b) (prior prison). As a consequence, in Tulare County Superior Court case No. VCF130834 (Case B), the superior court revoked appellant’s previously granted probation and reinstated his felony conviction for possession of a controlled substance (§ 11377, subd. (a)) and misdemeanor convictions for possession of marijuana (§ 11357, subd. (b)) and possession of drug paraphernalia (§ 11364).
On September 26, 2006, the superior court sentenced appellant to three years in prison. In Case A, the court orally ordered appellant to pay $500 in restitution fines, $40 to the Trial Court Security Fund, and $3,300 “pursuant to the breakdown set forth in the probation report.” In Case B, the court orally ordered appellant to pay $200 in restitution fines, $60 to the Trial Court Security Fund, and $990 pursuant to the probation officer’s report breakdown.
On October 3, 2006, the superior court filed an abstract of judgment using the two-page Judicial Council form CR-290 (rev. Jan. 1, 2003). Item 9.c. of the abstract, titled “Fine(s),” included an entry of $3,300 for Case A and no entry for Case B. Item 9.d., titled “Lab Fee and Drug Program Fee,” included a $990 entry for a laboratory fee pursuant to section 11372.5, subdivision (a) in Case B. Item 11 of the abstract stated that “[p]ursuant to Section 1465.8 of the Penal Code, [appellant] shall pay the amount of $40 in Case A and $60 in Case B to be collected by the California Department of Corrections who shall deposit such amounts in the Trial Court Security Fund.” The abstract did not break down the fines and fees any further.
On October 10, 2006, appellant filed a timely notice of appeal.
On December 15, 2006, appellant applied to the superior court for correction of the abstract of judgment, which appellant claimed contained clerical error in not breaking down the fines, fees, and penalties.
On December 29, 2006, the Tulare County Clerk of the Court filed an amended abstract of judgment that included an attached page with a breakdown of fines, fees, and penalties for both Case A and Case B. Items 9.c. and 9.d. as well as the description of the Trial Court Security Fund fees and fines remained the same. Item 11 was revised to refer to an attached page for breakdowns of the fines and fees. For Case A, item 11 directs to “[s]ee attached page for breakdown of $3,300 fine pursuant to 2800.2 VC.” For Case B, item 11 directs the reader to “[s]ee attached page for breakdown of $900 Criminal Laboratory Analysis Fee Pursuant to 11372.t(a)HS.” The breakdown identifies the statutory basis for a number of fines and fees. The attachment states that appellant “shall pay the amount of $900; $100 of this amount to be considered a Criminal Laboratory Analysis Fee pursuant to Section 11372.5 of the Health and Safety Code; $200 of this amount to be considered a Drug Program Fee pursuant to Section 11372.7 … [and] $60 of this amount to be considered a Criminal Fine Surcharge pursuant to Section 1465.7 of the Penal Code.”
This quotation contains an error. Although the total fines, fees, and penalties assessed against appellant in Case A total $3,300, that is an aggregate amount and not pursuant to solely section 2800.2 of the Vehicle Code.
This quotation contains errors. First, the reference to $900 is wrong. If the reference was intended to describe the laboratory fees, the amount should have been $100. If the reference was intended to list the total fees, fines, and penalties imposed in Case B, then the amount should have been $990. Second, assuming the quote intended to describe only the laboratory fees, then the statutory reference to section 11372.t(a) should have been to section 11372.5(a), which is the statute listed in the probation officer’s report and the page attached to the amended abstract.
On February 20, 2007, the clerk of the court served copies of the amended abstract on the Court of Appeal, the Office of the Attorney General, Central California Appellate Program (CCAP) and appellant. In the interim between filing and service, appellant’s attorney applied for correction again. It appears appellant’s attorney did not receive the amended abstract before appellant’s opening brief was filed with this court. No reply brief was filed by appellant.
Appellant’s attorney was not listed on the proof of service for the amended abstract of judgment. He may have received a copy of the amended abstract if CCAP forwarded it to him.
DISCUSSION
I. This Court Will Review the Amended Abstract of Judgment
Appellant’s opening brief contends that the superior court erred in not amending the abstract of judgment to include the statutory basis for all fines, fees, and penalties pursuant to People v. High (2004) 119 Cal.App.4th 1192, 1200 (High). Respondent’s brief argues that the superior court properly submitted an amended abstract of judgment following appellant’s application for correction and thus fulfilled its obligation to provide a statutory basis for fees, fines, and penalties. Appellant did not file a reply brief.
The parties’ contentions are not squarely in opposition to one another because they refer to different versions of the abstract of judgment. Consequently, before this court addresses the errors raised by appellant, we must decide which abstract of judgment to review. We are unaware of, and the parties have not cited, any case that has addressed an abstract of judgment that was amended and served in the midst of the appellate briefing. The lack of precedent compels us to create an approach for determining which abstract of judgment to review. We will take a practical approach and review the abstract of judgment that is in effect. The contrary approach—reviewing a version of the abstract that is not in effect—would serve little purpose.
The amended abstract cannot have legal effect unless the trial court had the authority to enter it. Once an appeal is taken, the trial court generally is divested of the authority to vacate judgment or make orders relating to it. (People v. Sonoqui (1934) 1 Cal.2d 364, 366.) Accordingly, we will address whether an exception to this general rule authorized the trial court to enter the amended abstract.
Under People v. Mitchell (2001) 26 Cal.4th 181 (Mitchell), a trial court has the authority to amend an abstract while an appeal is pending if the amendment corrects a clerical error. Under this rule, the amended abstract will have legal effect if the changes were the correction of clerical errors. Accordingly, the issue presented is whether the changes made in the abstract dealt with clerical errors.
Trial courts also retain jurisdiction during a pending appeal to recall a sentence pursuant to Penal Code section 1170, subdivision (d). (Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1833.)
Mistakes in the abstract of judgment are considered clerical. (Mitchell, supra, 26 Cal.4th at p. 186.) Entering oral judgment into the abstract of judgment is a clerical function and does not control, add, or modify, but rather summarizes the court’s judgment. (Id. at p. 185.) Here, the trial court orally imposed fines and fees pursuant to the probation officer’s report. For both Case A and Case B, the probation officer’s report lists the statutory basis for fees, fines, and penalties. The original abstract of judgment, filed on October 3, 2006, did not reflect the fines, fees, and penalties referred to in sentencing. Thus, the inconsistency between oral sentencing and the abstract of judgment was a clerical error.
High directs the trial court to separately state at sentencing the statutory basis for each fine, fee, and penalty. (High, supra, 119 Cal.App.4th at p. 1201.) The court noted that, without specifying fine amounts, the “Department of Corrections cannot fulfill its statutory duty to collect and forward deductions.” (Id. at p. 1200.) Further, without separate listing, the trial court does not satisfy other concerns—for example, the need of appellate counsel to review the propriety of any fines, fees, or penalties imposed as part of a criminal sentence. Here, the separate fines, fees, penalties, and surcharges were not read into the record. The mandate of High was satisfied nonetheless by the trial court’s reference to the probation officer’s report. As long as the probation officer’s report or other referenced document contains sufficient detail for the clerk of the court to provide an abstract that satisfies the mandates of High, the oral sentencing is appropriate.
Because the corrected errors were clerical, the amended abstract has legal effect. Therefore we will consider appellant’s substantive arguments as they apply to the amended abstract of judgment.
II. The Fees Were Properly Assessed Though Not Properly Documented
Appellant argues that the fees assessed by the trial court were not calculated or documented properly. Specifically, appellant challenges the $100 laboratory analysis fee that was assessed pursuant to section 11372.5, the $200 drug program fee that was assessed pursuant to section 11372.7, and the $60 trial court security fee assessed pursuant to Penal Code section 1465.8. Further, appellant argues that the abstract lists the total fines for Case B as solely a laboratory fee when only $100 was appropriately a laboratory fee. Respondent argues that the fines were assessed properly, each reflecting imposition of fines for conviction of applicable crimes. Specifically, for violation of sections 11377, subdivision (a) and 11364, respondent contends that fees under sections 11372.5 and 11372.7 were proper. Respondent does not argue that the $60 fee pursuant to Penal Code section 1465.8 was proper or that the $990 total was properly listed as solely a laboratory fee.
A. Laboratory analysis fees
In Case B, appellant was convicted of violating sections 11364, 11377, subdivision (a), and 11357, subdivision (b). Section 11372.5 requires that those who are convicted of certain violations, including sections 11364 and 11377, subdivision (a), “shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.” (§ 11372.5, subd. (a).) Appellant correctly notes that convictions under section 11357, subdivision (b) are exempt from this fee. Nevertheless, the $100 stated in the attachment to the amended abstract was assessed properly because of appellant’s two applicable convictions under sections 11377, subdivision (a), and 11364 (2 convictions × $50 = $100). Thus, we reject appellant’s challenge to the $100 assessed under section 11372.5 for laboratory fees in Case B.
The misdemeanor convictions were not included on the amended abstract of judgment. They should be referenced on the abstract of judgment; one possibility is to note them in item 11 by stating: “In addition to the felony conviction in Case B, defendant was convicted of two misdemeanors; Health and Safety Code sections 11357, subdivision (b), and 11364.”
Item 9.d. of the amended abstract lists laboratory fees for Case B as $990. The laboratory fees levied against appellant were $100. It is incorrect to list the aggregate amount of the fines, fees, and penalties imposed in Case B as laboratory fees even though the attached page is referenced and provides a breakdown of the fines. The last line of item 11 also improperly describes the aggregate amount as laboratory fees.
One way to correct the error in items 9.d. and 11 is to (1) leave item 9.d. blank and, (2) in item 11, refer to the attached page for the breakdown of fines, fees, and penalties in Case B. As indicated above, this correction is clerical.
Item 11 could read “See attached page for breakdown of the $990 of fines, fees, and penalties imposed in Case B.”
Though appellant does not attack the $3,300 listing in item 11, there is a similar problem with aggregation as discussed in footnote 2, ante. Item 11 could correctly read “See attached page for breakdown of $3,300 of fines, fees, and penalties imposed in Case A.”
B. Drug program fees
Section 11372.7 provides that those who are convicted of certain crimes, including sections 11364 and 11377, subdivision (a), “shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense.” (§ 11372.7, subd. (a).) Although appellant is correct in noting the exemption of section 11357, subdivision (b), appellant’s violations of sections 11364 and 11377, subdivision (a) establish that the $200 fee falls within the $150 maximum for each separate offense. (§ 11372.7, subd. (a).) Thus, we reject appellant’s challenge to the $150 assessed under section 11372.7 for drug program fees in Case B.
C. Trial Court Security Fund fee
Penal Code section 1465.8, subdivision (a) requires that “a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense.” In Case B, appellant was convicted of three crimes: possession of a controlled substance (§ 11377, subd. (a)), possession of marijuana (§ 11357, subd. (b)) and possession of drug paraphernalia (§ 11364). Thus, the $60 fee was appropriate (3 convictions × $20 = $60). Therefore, we reject appellant’s challenge to the $60 assessed under Penal Code section 1465.8 for Trial Court Security Fund fees in Case B.
DISPOSITION
The cause is remanded with directions to the trial court to amend the abstract in accordance with this court’s directions. The judgment is affirmed. The trial court is directed to prepare an amended abstract reflecting the corrections ordered by this court and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
See footnotes 6, 7 and 8, ante, and the accompanying text for one possible way to correct the fines, fees, and penalties owed in both Case A and Case B.