Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC643776, CC647437, CC762515, CC892844
Mihara, Acting P. J.
Defendant Michael Dixon Flinders appeals from judgments of conviction entered after he pleaded guilty or no contest to several drug-related offenses in four cases. On appeal, he contends: (1) there was insufficient evidence to support an attorney’s fee order of $200 in case No. CC643776; (2) Penal Code section 654 bars imposition of sentence on counts one and two and reduction of the restitution and parole revocation fines in case No. CC892844; and (3) this court must conduct Wende review in case Nos. CC762515 and CC647437. We strike the attorney’s fee order in case No. CC643776. We also stay execution of sentence on count two, and reduce the amount of the restitution and parole revocation fines in case No. CC892844. As modified, the judgments are affirmed.
All further statutory references are to the Penal Code unless otherwise noted.
People v. Wende (1979) 25 Cal.3d 436 (Wende).
I. Statement of the Case
A. H032968 (Felony Appeal – Case Nos. CC762515, CC892844)
On April 4, 2007, the District Attorney’s Office filed a complaint (case No. CC762515) alleging that defendant possessed methamphetamine (Health & Saf. Code, § 11377, subd. (a) – count one), was under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a) – count two), and had served a prior prison term (§ 667.5, subd. (b)). Almost two weeks later, defendant pleaded guilty to the charges and admitted the prior prison allegation. The trial court placed defendant on Proposition 36 probation (§ 1210 et seq.) for two years and ordered, among other things, reimbursement of attorney’s fees in the amount of $200.
On October 2, 2007, defendant admitted that he had violated probation. The trial court modified and reinstated probation.
On January 16, 2008, the District Attorney’s Office filed a complaint (case No. CC892844) alleging that defendant sold and transported cocaine base (Health & Saf. Code, § 11352, subd. (a) – counts one and two) and used or was under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a) – count three). The complaint also alleged that defendant had served a prior prison term (§ 667.5, subd. (b)) and had suffered an enhancing prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)), thus rendering defendant ineligible for probation (§ 1203.07, subd. (a)(11)).
On March 19, 2008, pursuant to a plea agreement, defendant pleaded no contest to sale of a controlled substance and transportation of a controlled substance, and admitted the prior conviction and prison term allegations.
On April 25, 2008, the trial court sentenced defendant to the mitigated term of three years in state prison on count one in case No. CC892844. It also sentenced defendant to a concurrent three-year term on count two, struck the prior conviction allegations, and imposed a $1,200 restitution fine. On the same day, the trial court found defendant had violated probation in case No. CC762515. The trial court imposed a 219 day jail term with 219 days credit for time served, and terminated probation.
Defendant filed a timely notice of appeal from the judgments in case Nos. CC762515 and CC892844.
B. H033357 (Misdemeanor Appeal – Case Nos. CC643776 and CC647437)
On September 29, 2006, the District Attorney’s Office filed a complaint (case No. CC643776) alleging that defendant was under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) and that he had two prior convictions for being under the influence (Health & Saf. Code, § 11550).
On November 2, 2006, the District Attorney’s Office filed a complaint (case No. CC647437) alleging that defendant was under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a) – count one) and loitering with the intent to commit a drug offense (Health & Saf. Code, § 11532, subd. (a) – count two). In connection with count one, the complaint also alleged that defendant had three prior convictions for being under the influence (Health & Saf. Code, § 11550).
On November 7, 2006, defendant pleaded guilty to being under the influence and admitted the prior conviction allegations in case No. CC643776. He also pleaded guilty to count one in case No. CC647437 and admitted the prior conviction allegations. The trial court dismissed count two.
On November 14, 2006, the trial court suspended imposition of sentence in case Nos. CC643776 and CC647437 and placed defendant on Proposition 36 probation.
On April 2, 2007, defendant was taken into custody in connection with case No. CC762515. On April 17, 2007, defendant admitted that he had violated probation in case Nos. CC643776 and CC647437. The trial court reinstated probation.
On October 2, 2007, defendant admitted that he violated probation again in case Nos. CC643776 and CC647437. The trial court modified and reinstated probation.
On April 25, 2008, the trial court revoked probation in case Nos. CC647437 and CC643776. The trial court then imposed a sentence of 196 days in jail in case No. CC647437 and 219 days in jail in case No. CC643776. Defendant was given credit for time served. Immediately after imposing sentence in these two cases, the trial court stated: “There are $200 in attorney fees.” However, the clerk’s transcript does not indicate that the trial court ordered attorney’s fees.
Defendant filed a timely notice of appeal from the judgments in case Nos. CC643776 and CC647437.
This court granted defendant’s motion to transfer the misdemeanor appeals and ordered them considered with case No. H032986.
II. Discussion
A. Attorney’s Fees
Defendant contends that there was insufficient evidence to support the order that he pay $200 in attorney’s fees in case No. CC643776. The People argue that the trial court did not impose attorney’s fees in connection with that case. Noting that the clerk’s transcript in case No. CC643776 does not refer to imposition of attorney’s fees, they assert that the trial court was reaffirming the attorney’s fee portion of the April 17, 2007 order in case No. CC762515.
In People v. Smith (1983) 33 Cal.3d 596 (Smith), the California Supreme Court outlined the correct approach in resolving conflicts between the reporter’s and clerk’s transcripts. “ ‘It may be said... as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript, must depend upon the circumstances of each particular case.’ [Citations.]” (Smith, at p. 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216.)
At the April 25, 2008 hearing, the trial court addressed each of the four cases separately. “THE COURT: All right. On case CC762515, I find you in violation of probation. Your probation is reinstated. Prop. 36 services are terminated. I am sentencing you to serve 219 days County Jail with credit for time served of 116 actual days, 58 days under 4019 of the Penal Code, 45 days in a residential treatment, which totals 219 days; thus your sentence on that particular violation of probation is deemed to be served. With that, I am going to terminate your probation.” The trial court then pronounced sentence in case Nos. CC647437 and CC643776. “[THE COURT:] Now, with regard to violations of probation in case CC647437 and case CC643776, I find you in violation of your probation. Your probation remains revoked, all Prop. 36 services are terminated. [¶] In docket CC647437, I am ordering you to serve a County Jail sentence of 196 days, with credit for time served of 101 actual days, 45 days also in a residential treatment, 50 days under 4019 of the Penal Code, for a total of 196 days. Your sentence is deemed satisfied. [¶] In docket CC643776, I am ordering you to serve a County Jail sentence of 219 with 116 actual days credit, 45 days that you have credit for a residential treatment program, 58 days under 4019 of the Penal Code, for a total of 219 days. That’s your sentence in that violation of probation, is also deemed satisfied. [¶] There are $200 in attorney fees.” Thus, though the clerk’s transcript does not refer to imposition of attorney’s fees in case No. CC643776, the trial court had completed its recitation of the sentence in case No. CC762515 prior to ordering payment of attorney’s fees as part of defendant’s sentence in case No. CC643776. Accordingly, we conclude that the reporter’s transcript is entitled to greater credence.
We also note that the probation report, which is dated April 25, 2008, recommends “[a]ttorney fees if appropriate” in connection with case Nos. CC647437 and CC643776, but makes no such reference in connection with case No. CC762515.
We next consider whether there was sufficient evidence to support the attorney’s fee order. Section 987.8, subdivision (b) provides, in relevant part, that “the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost” of legal assistance provided through “the public defender or private counsel appointed by the court.” An attorney’s fee order is not mandatory under section 987.8, and a determination that the defendant has the ability to pay is a prerequisite for entry of such an order. (§ 987.8, subd. (e).) The trial court’s explicit or implicit finding of present ability to pay attorney’s fees must be supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.)
Section 987.8, subdivision (g)(2) defines “ ‘[a]bility to pay’ ” as a defendant’s “overall” financial ability to pay and lists factors relevant to this determination: (1) the defendant’s “present financial position”; (2) the defendant’s “reasonably discernible future financial position” during the six months following the ability-to-pay hearing; (3) the likelihood of employment during that period; and (4) any other facts relevant to the defendant’s “financial capability.” (§ 987.8, subd. (g)(2)(A)-(D).) Moreover, “[u]nless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.” (§ 987.8, subd. (g)(2)(B).)
Here, there was insufficient evidence to support the trial court’s implied finding that defendant had the present ability to pay attorney’s fees. Though the trial court had sentenced defendant to three years in prison in case No. CC892844, it made no finding of “unusual circumstances.” There is also nothing in the probation report that indicates that defendant had the ability to pay attorney’s fees, and the trial court did not hear additional evidence at the sentencing hearing that was related to defendant’s employment or financial position. In the interest of judicial economy and efficiency, we will strike the order rather than remand for further proceedings.
B. Section 654
Defendant next contends that the trial court violated the prohibition against multiple punishment under section 654 when it imposed separate terms for count one (selling a controlled substance) and count two (transporting a controlled substance) in case No. CC892844. He also contends that the trial court improperly imposed restitution and parole revocation fines based on these two convictions rather than one.
We reject the People’s claim that defendant’s “section 654 assertion is a challenge to the validity of the plea he negotiated,” and thus defendant was required to obtain a certificate of probable cause. Here, prior to entering his plea pursuant to the negotiated agreement, defendant reserved his right to challenge imposition of sentence on both counts one and two at his sentencing hearing. Thus, the trial court’s decision to impose sentence on both offenses was a postplea matter that did not require a certificate of probable cause. (See People v. Buttam (2003) 30 Cal.4th 773, 787.)
Section 654 provides in relevant part: “An 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.” (§ 654, subd. (a).) Thus, “[s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) Whether multiple offenses are incident to one objective “ ‘depends on the intent and objective of the actor.’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The trial court’s determination that a defendant maintained multiple criminal objectives is a question of fact that must be upheld if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) “We review the trial court’s findings ‘in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ ” (People v. Green (1996) 50 Cal.App.4th 1076, 1085.) Where a term is prohibited under section 654, the proper procedure is to impose and stay sentence. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)
The People argue that the trial court could have reasonably concluded that defendant “possessed a different objective in transporting cocaine base other than the three rocks he sold to Ms. Richardson.” We disagree.
Here, the police reports, which formed the factual basis for defendant’s plea, establish that, on January 13, 2008, police officers observed Lisa Vincent loitering for approximately one hour in an “area where numerous prostitutes, pimps, and p[ro]spective customers, and drug users and dealers come to solicit and engage in illicit activity.” Vincent was walking up and down the street several times while making eye contact, smiling, and waving at men in passing vehicles. Darnell Richardson approached Vincent and asked about purchasing $40 worth of crack cocaine. Vincent called defendant. When defendant drove up about 10 minutes later, Vincent entered defendant’s vehicle and purchased the cocaine for Richardson. Vincent then exited the vehicle and gave Richardson a wad of paper. Defendant also exited the vehicle and walked into a bathroom at a nearby restaurant. Police officers contacted all three individuals and found three rocks of cocaine in the paper wad in Richardson’s possession. Officers searched defendant’s vehicle and found a torn magazine cover that matched the paper in which the cocaine was found. They also found chips of cocaine on the seat of defendant’s vehicle. Defendant had $140 in his wallet and $50 in his right pocket. He also had $40 wadded up in his left pants pocket. Both Richardson and defendant exhibited symptoms of being under the influence of a stimulant.
Noting that defendant was under the influence of cocaine after he exited the bathroom, the People argue that “the trial court could reasonably believe [defendant] had, in addition to transporting these three rocks of cocaine base for sale, also transported cocaine base for personal use.” However, there is nothing in the record to indicate when or where defendant consumed the cocaine. Absent such evidence, the trial court could not have reasonably found that defendant transported the cocaine for personal use.
The People next point out that defendant had a cell phone, $140 in his wallet, $50 in his right pocket, and $40 wadded up in his left pants pocket. They also focus on the police officer’s observation, which was based on his “training and experience,” that “drug users wad up their money so when they hand it to the dealer it is harder for the police to see. The drug users put the money in the palm of their hands so it can be hidden.” They further note that Vincent had loitered in the area about 50 minutes before Richardson contacted her. Thus, the People argue that “[t]he trial court could reasonably infer that [defendant] did not simply drive from his home or stash pad to this location and there sell only three rocks of cocaine base to Richardson for $40.” Their argument finds no support in the record. The $40 wadded up in defendant’s pocket was the money Vincent gave defendant in exchange for the three rocks of cocaine. The remainder of defendant’s money was not wadded up in the manner typically used by drug users. Thus, the trial court could not reasonably infer that defendant had obtained this money from other drug transactions. That Vincent was loitering in the area and trying to make contact with men also does not tend to establish that defendant intended to engage in drug transactions in addition to the one with Richardson. Since the sale of the cocaine base and the transportation of cocaine base were incident to one objective, execution of sentence on the transportation count must be stayed. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.)
We next consider defendant’s section 654 claim as it relates to the imposition of the restitution and parole revocation fines.
When a defendant is convicted of a felony, section 1202.4 requires the imposition of a restitution fund fine of not less than $200 nor more than $10,000, and section 1202.45 requires the imposition of a matching parole revocation fine. (§§ 1202.4, subd. (b)(1), 1202.45.) Section 1202.4 provides that the amount of the fine “shall be set at the discretion of the court and commensurate with the seriousness of the offense” and provides a formula that the court “may” use to “determine the amount of the fine.” (§ 1202.4, subd. (b).) This formula sets the fine at “the product of two hundred dollars ($200) 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.” (§ 1202.4, subd. (b)(2).) When the trial court uses the statutory formula under section 1202.4, section 654 compels the court to disregard counts for which punishment has been stayed. (People v. Le (2006) 136 Cal.App.4th 925, 933-934.)
Here, the trial court was required under section 654 to disregard one of the convictions in calculating the amount of the fines. Thus, employment of the formula results in a restitution fine of $600 ($200 x 3 years x 1 count = $600) and a parole revocation fine in the same amount.
C. Wende Review
Defense counsel has raised no issues relating to case Nos. CC762515 and CC647437 in his opening brief. Defendant requests that this court independently review the record in these cases pursuant to People v. Wende, supra, 25 Cal.3d 436. Relying on People v. Woodard (1986) 184 Cal.App.3d 944 (Woodard), the People argue that no such review is required because defendant’s opening brief raised two issues. Woodard, however, is distinguishable from the present circumstances. In Woodard, the defense counsel raised a challenge to the defendant’s sentence in the opening brief, the People conceded the error, and the trial court modified the judgment before the reply brief was filed. (Woodard, at p. 945.) In his reply brief, the defense counsel sought Wende review. (Ibid.) The Woodard court declined to conduct this review, reasoning that the defendant’s opening brief had raised “ ‘a substantive issue’ which if resolved favorably to the appellant would result in either ‘a reversal or a modification of the judgment.’ ” (Woodard, at p. 946.) In contrast to Woodard, here, defendant’s opening brief has raised no substantive issues whose resolution in his favor would lead to a reversal or modification of the judgments in case Nos. CC762515 and CC647437.
We have notified defendant of his right to submit written argument on his own behalf, but he has failed to avail himself of the opportunity. After reviewing the record in case Nos. CC762515 and CC647437, we allowed the parties to submit letter briefs on the sufficiency of the evidence to support the attorney’s fee order in case No. CC762515.
On April 17, 2007, the trial court placed defendant on probation in case No. CC762515 and ordered him to pay $200 in attorney’s fees. Defendant did not appeal from this order. “[A] defendant who elects not to appeal an order granting... probation cannot raise claims of error with respect to th[at] grant... in a later appeal from a judgment following revocation....” (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) Thus, the validity of the order to pay attorney’s fees in case No. CC762515 may not be attacked in this appeal. We have also concluded that there are no arguable issues on appeal in case No. CC647437.
III. Disposition
We modify the judgment in case No. CC643776 by striking the order to pay attorney’s fees. We modify the judgment in case No. CC892844 to reflect that the sentence on count two (transportation of a controlled substance) is stayed pursuant to section 654. The judgment in case No. CC892844 is also modified to reduce the restitution fine from $1,200 to $600, and the parole revocation fine from $1,200 to $600. The trial court is directed to prepare amended abstracts of judgment that reflect these modifications, and to forward certified copies of the amended abstracts to the Department of Corrections. As modified, the judgments are affirmed.
WE CONCUR: McAdams, J., Duffy, J.