Opinion
B223342
12-16-2011
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN CARR, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. BA340302
APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Jr., Judge. Affirmed as Modified.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Stephen Carr, who was convicted and placed on probation for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), contends on appeal that the trial court erred in imposing a deoxyribonucleic acid (DNA) penalty assessment and a parole revocation fine. We agree that these fines were erroneously imposed and modify the judgment to strike them. Carr also correctly contends that the court erred in imposing a court security fee, a court facility fee, and probation costs as conditions of probation, and thus we modify the judgment to clarify that these costs are separate orders and not conditions of probation. Finally, we agree with Carr's contention that the minute order reflecting the judgment improperly states that the court ordered Carr to serve one day in Los Angeles County jail, and thus we also modify the judgment to strike that reference to jail time.
All unspecified section references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Following Carr's conviction for possession of a firearm by a felon, imposition of his sentence was suspended and he was placed on formal probation for a period of three years. In addition, the trial court ordered him to pay the following as terms and conditions of his probation: (1) a $30 court security assessment (§ 1465.8, subd. (a)(1)); (2) a $30 court facilities assessment (Gov. Code, § 70373); (3) a $200 restitution fine (§ 1202.4, subd. (b)); (4) a $200 parole restitution fine, which was stayed (§ 1202.45); (5) a $200 probation revocation restitution fine that would become effective only upon the revocation of probation (§ 1202.44); (6) a $20 DNA state-only assessment fee (Gov. Code, § 76104.7); and (7) the cost of probation services as determined by his probation officer (§ 1203.1b, subds. (a), (b).). Carr subsequently requested that the trial court strike the $20 DNA assessment fee, but the court denied Carr's request.
Carr timely appealed.
DISCUSSION
I. DNA Assessment Fee Pursuant to Government Code Section 76104.7
Carr contends, and respondent concedes, that the trial court erred in imposing a $20 DNA state-only assessment fee under Government Code section 76104.7. This DNA assessment fee may only be levied as an additional penalty of one dollar for every 10 dollars of fines, penalties, or forfeitures imposed by the courts for criminal offenses. (Gov. Code, § 76104.7, subd. (a).) A DNA assessment fee may not be imposed on a section 1465.8, subdivision (a)(1) court security fee (People v. Valencia (2008) 166 Cal.App.4th 1392, 1396), a Government Code section 70373 criminal conviction assessment (Gov. Code, § 70373), or restitution fines pursuant to sections 1202.4, 1202.44, or 1202.45. (§§ 1202.4, subd. (e), 1202.44, 1202.45; Gov. Code, § 76104.7, subd. (c)(1).) Because the trial court imposed no other types of fines, penalties, or forfeitures on Carr upon which a DNA assessment fee could lawfully be levied, the $20 DNA penalty assessment must be stricken.
II. Parole Revocation Restitution Fine
Pursuant to section 1202.45, the trial court imposed a parole revocation restitution fine of $200, which was suspended pending any violation of parole by Carr. Section 1202.45 provides for the imposition of such a fee "[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole." (§ 1202.45.) Given that the trial court suspended the imposition of Carr's sentence and placed him on formal probation for a period of three years, Carr contends, and respondent concedes, that there was no potential for parole and therefore the parole revocation fine is inapplicable.
A split of authority exists with respect to the circumstances in which the parole revocation restitution fine may be imposed, but, as discussed below, that disagreement does not affect the outcome here. In People v. Hannah (1999) 73 Cal.App.4th 270, 274-275, the court found that when the trial court suspends execution of a sentence imposed and places a defendant on probation, the defendant's sentence does not include a period of parole, and thus a parole revocation fine cannot be imposed. However, subsequent decisions have distinguished between suspension of execution of sentence and suspension of imposition of sentence. (See, e.g., People v. Tye (2000) 83 Cal.App.4th 1398, 1401 ["The conclusion reached by the Hannah court makes sense when probation is granted upon suspension of imposition of sentence, for in that situation the defendant has not been sentenced to a prison term. [Fn. omitted.] When, however, as here, a prison sentence, including a period of parole, has been imposed and only the execution has been suspended, we conclude that Penal Code section 1202.45 applies and the restitution fine may properly be imposed."]; People v. Calabrese (2002) 101 Cal.App.4th 79, 86 ["When execution of sentence is suspended, the defendant's sentence comes within Penal Code section 1202.45 because, if ultimately executed, the sentence 'includes a period of parole' which could be revoked."].) No court to consider the issue disagrees that, where the trial court suspends imposition of sentence, there is no potential for a period of confinement and thus no potential for parole, rendering a parole revocation fine inappropriate. Because the trial court here suspended the imposition of Carr's sentence, we agree that the court erred in imposing a parole revocation restitution fine and accordingly modify the judgment to strike the fine.
III. Court Security and Facility Fees and Probation Costs as Conditions of Probation
Carr contends that the trial court erroneously designated the $30 court security fee (§ 1465.8, subd. (a)(1)), $30 court facilities fee (Gov. Code, § 70373), and probation costs (§ 1203.1b, subds. (a), (b)) as conditions of his probation. The issue is potentially significant because "a defendant may be imprisoned for violating a probation condition, but not for violating an order to pay costs and fees." (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1403.)
Section 1465.8, subdivision (a)(1), requires the court to impose a fee on every conviction "[t]o ensure and maintain adequate funding for court security." Government Code section 70373, subdivision (a)(1) requires the court to impose an assessment on every felony conviction "[t]o ensure and maintain adequate funding for court facilities." Section 1203.1b permits the court to order a defendant who is granted probation to pay the costs of probation supervision and the preparation of probation reports, if he is financially able to do so. Unlike restitution fines, all the above fees and costs are "'collateral' to a defendant's crime and punishment" and are "not oriented toward a defendant's rehabilitation but toward raising revenue for court operations." (People v. Kim (2011) 193 Cal.App.4th 836, 842.) Therefore, payment of a court security fee, a court facilities fee, and probation costs may not be imposed as probation conditions. (Id. at pp. 842-843; see also People v. Pacheco, supra, 187 Cal.App.4th at p. 1402; People v. Hall (2002) 103 Cal.App.4th 889, 892.)
Respondent concedes that the above fees and costs may not be imposed as probation conditions, but contends that, by failing to raise the issue below, Carr forfeited the issue. However, "[a] defendant may . . . challenge for the first time on appeal the imposition of a fee as a probation condition when it is unauthorized as a matter of law and correctable without reference to factual findings." (People v. Kim, supra, 193 Cal.App.4th at p. 842; see People v. Andrade (2002) 100 Cal.App.4th 351, 354 ["[T]he waiver doctrine does not apply where the trial court exceeds its statutory authority."].) A sentence is unauthorized "where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Because the court may not impose a court security fee, facilities fee, or probation costs as conditions of probation under any circumstances, and because the issue presents a pure question of law, Carr may raise it for the first time on appeal.
IV. Deleting Reference to Jailtime
The minute order entered following Carr's sentencing states that one of the terms and conditions of his probation was that he "serve 001 day in Los Angeles County jail, less credit for 1 day." However, Carr contends that in sentencing him the trial court did not orally impose any time in jail. The record reveals that the trial court did award Carr one day of custody credit, but he did not order any time in custody. The oral pronouncement of sentence controls over the minute order and abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Zackery (2007) 147 Cal.App.4th 380, 387-389.) Thus, we modify the judgment to strike the reference to one day of jail.
DISPOSITION
The judgment is modified by striking the DNA assessment fee and the parole revocation fine and striking the reference to one day of custody in Los Angeles County jail, and is further modified to reflect that the $30 court security fee, $30 court facilities fee, and probation costs are separate orders and not conditions of probation. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these modifications, and to forward a copy to the Department of Corrections. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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WILLHITE, Acting P. J.
We concur:
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MANELLA, J.
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SUZUKAWA, J.