Opinion
B295127
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. MUHAMMAD GOLSTON, Defendant and Appellant.
Stephane Quinn, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and William H. Shin, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA471097) APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed. Stephane Quinn, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Muhammad Golston was convicted of two counts of second-degree burglary. (Pen. Code, § 459.) At sentencing, the court imposed and orally stayed defendant's fines and fees. On appeal, defendant argues that the trial court insufficiently recorded the oral stay in the written abstract of judgment. We find the stay was properly memorialized in an attachment to the abstract of judgment, and that the complete abstract clearly articulates the trial court's order. We affirm.
FACTS AND PROCEDURAL BACKGROUND
As the only issue on appeal deals with the abstract of judgment, we recite only facts essential to give context. Defendant was charged with four counts of second-degree burglary committed in August and September of 2018. The information alleged that defendant suffered two prior "strike" felonies. (Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) The trial on the truth of defendant's two prior strikes was bifurcated.
After a jury trial, defendant was found guilty of the following two burglaries of the same residence.
First burglary. In late August 2018, defendant unlawfully entered the victim's residence. Defendant entered, allowed another person in, and the two people rifled through the living room. Defendant then noticed, inspected, and turned off the security camera. It would come out at trial that once off-camera, defendant took several items, including several iPads, an editing computer, and a backpack containing headphones and an audio player.
Second burglary. Nine days after the first burglary, a second security camera installed at the same home showed defendant again entering the property, this time carrying a bag. The security footage showed defendant picking up various items from the dresser. When the victim returned to the property, computer accessories were missing.
Following defendant's conviction on the two charges, the parties agreed to a bench trial on the priors. The prosecution did not proceed with the first prior; the trial court found the second true. The trial court then declined to strike defendant's second prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court sentenced defendant to a total of four years: the low term of 16 months for the first burglary, doubled for the strike; plus a consecutive one-third middle term of eight months for the second burglary, also doubled. Defendant was ordered to pay a $300 restitution fine, a $300 parole revocation fine, an $80 court operations fee, and a $60 conviction assessment fee. (Pen. Code, §§ 1202.4(b), 1202.5, 1465.8(A)(1); Gov. Code, § 70373.)
At the sentencing hearing, the court found that defendant did not have the ability to pay the fines and fees due to his extended period in custody and his likely inability to obtain gainful employment in the near future. The court stayed the fines and fees pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The stay was recorded in an attachment to the abstract of judgment.
Defendant filed a timely notice of appeal. Defendant then moved the trial court to amend the abstract of judgment to reflect that the fines and fees had been stayed. (Pen. Code, § 1237.2.) The trial court summarily denied the motion.
We granted defendant's Motion to Augment the Record on Appeal with this motion and the minute order denying the motion.
DISCUSSION
On appeal, defendant asks this court to amend the abstract of judgment, arguing, "Despite the court's express finding of an inability to pay the fines and fees, and order that the fines and fees be stayed, the abstract of judgment reflects the following: imposition of a $300 restitution fine (§ 1202.4 (b)), a $300 restitution fine (suspended per § 1202.45), an $80 court operations assessment (§ 1465.8), and a $60 conviction assessment (Gov. Code, § 70373)." (Fn. omitted.) Defendant urges this court to correct the abstract of judgment "to reflect the trial court's oral pronouncements that the fines and fees are stayed based upon an inability to pay."
In response, the Attorney General points out that the order staying the fines and fees appears in the attachment to the abstract of judgment, so this court need not intervene. In reply, defendant makes an entirely different argument: the stay is reflected in the attachment to the abstract, but the wording " 'Fines and fees are ordered stayed[]' " is ambiguous, and must be corrected to "[A]ll fines, fees and assessments are permanently stayed." (Italics added.)
We agree with defendant that an abstract of judgment that accurately reflects the court's oral imposition of fines and fees is legally required. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) We also agree that an abstract of judgment that inaccurately records the judgment imposed must be corrected. (Ibid.) Be that as it may, we are quite a bit less sanguine about the arguments presented in defendant's opening and reply briefs. The trial court did not err - the abstract is correct.
Here, the abstract of judgment correctly records the fines and fees orally pronounced by the trial court. The trial court properly completed Section 9 of the abstract of judgment, which lists the fines and fees the trial court imposed at sentencing. The stay of fines and fees is found in an attachment to the abstract of judgment, which the reader is directed to in Section 13. Section 13 of the abstract of judgment is entitled, "Other orders (specify)." Immediately to the right, are the typed in words, "See attachment." The third page of the abstract of judgment - the attachment - covers two subjects: (1) defendant is prohibited from owning or using firearms and other related conduct; and (2) the stay of the fines and fees. In plain language, the attachment reads: "The court finds the defendant is not able to pay fines and fees. Fines and fees are ordered stayed." Including both the discussion of fines and fees and the stay is consistent with the purpose of an abstract of judgment, which is to summarize what the court imposed. (People v. High, supra, 119 Cal.App.4th at p. 1200.)
The short answer to the argument defendant makes in his opening brief is that, in reviewing the record, apparently appellate counsel just did not see the attachment. If counsel had not overlooked page three of the abstract of judgment, counsel likely would have filed a Wende brief. These things happen; lawyers (and judges) make mistakes.
We know this was counsel's oversight because when counsel filed with the trial court a request to modify the abstract to include the stay of fines and fees, the copy of the abstract of judgment that counsel submitted with her motion contained only the first two pages of the abstract; the attachment was missing.
Once the Attorney General pointed out appellate counsel's misapprehension about the abstract of judgment, counsel might have abandoned the appeal or have decided not to file a reply brief. Instead, appellant filed a reply that contains a completely new argument: the language of the stay is ambiguous and must be corrected by replacing "Fines and fees are ordered stayed[]" with "[A]ll fines, fees and assessments are permanently stayed." (Italics added.) This argument suffers from several legal defects.
Defendant waived any ambiguity by failing to raise it in the trial court. "[O]rdinarily matters not presented to the trial court and hence not a proper part of the record on appeal will not be considered on appeal." (People v. St. Martin (1970) 1 Cal.3d 524, 537-538.)
Some courts have found that failure to make a Dueñas argument in the trial court precludes the appellant from raising it on appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153; People v. Keene (2019) 43 Cal.App.5th 861, 864.) --------
Not only did defendant waive his ambiguity argument by failing to raise it in the trial court, he also waived it by failing to raise the argument in his opening brief. The argument was not brought up at all until defendant filed his reply brief. As California Rules of Court, rule 8.216 states, a party must confine the issues raised in its reply brief to those brought up on appeal. "[P]oints raised for the first time in a reply brief on appeal will not be considered, absent good cause for failure to present them earlier." (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583; See also: Hawran v. Hixson (2012) 209 Cal.App.4th 256, 267; Campos v. Anderson (1997) 57 Cal.App.4th 784, fn. 3.) Here, defendant not only neglected to argue ambiguity in his opening brief, he also failed to present "good cause" for the argument's belated inclusion. This reason is sufficient to consider the argument waived.
We find the argument has been waived for a third reason. Defendant failed to reference any case law or provide citations to support his argument. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' " (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Even if we were to consider defendant's arguments on the merits, we find the order is not ambiguous and needs no modification. Defendant proposes that we order the language of the attachment changed to "[ A ]ll fines, fees and assessments are permanently stayed." (Italics added.) The first point is fatuous: "Fines and fees are ordered stayed[]" refers to all fines and fees. One could not reasonably conclude that the stay ordered by the trial court applies to some, but not all, of the fines and fees identified in the abstract. The insertion of the word "all" is unnecessary to convey the plain meaning of the order.
Defendant does not address why the word "assessments" would clarify any ambiguity in the attachment. The trial court does not mention assessments in either the minute order or the transcript of the sentencing hearing. Defendant's argument is essentially that as a matter of law, but without any authority, assessments must be included.
Defendant's last claim of ambiguity can be solved, so he says, by adding the word "permanently" to the language of the stay. Such an insertion would make the statement legally inaccurate. Fines and fees stayed pursuant to Dueñas are not permanently stayed; they are abated only "until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, supra, 30 Cal.App.5th at p. 1172.) We conclude the abstract of judgment accurately reflects what the trial court orally pronounced.
DISPOSITION
The judgment is affirmed.
RUBIN, P. J. WE CONCUR:
MOOR, J.
KIM, J.