Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Super. Ct. No. MCR015461D & MCR020805, Jennifer R.S. Detjen, Judge.
William A. Davies, 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, David A. Rhodes and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
After defendant Craig Douglas Long violated his Proposition 36 probation, the trial court imposed a sentence of three years eight months and imposed various fines and fees. On appeal, defendant contends (1) imposition of an upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely)and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham); (2) imposition of a probation revocation restitution fine violated the prohibition against ex post facto laws; and (3) the trial court erred by failing to find defendant had the ability to pay the $150 supplemental probation report cost. We will affirm the judgment as modified.
The facts are taken largely from the probation reports.
Case A
On June 14, 2003, defendant committed misdemeanor spousal battery (Pen. Code, § 243, sub d. (e)(1)), and was granted three years of probation.
All statutory references are to the Penal Code unless otherwise noted.
We use the designation “case A” for case MCR015665.
Case B
On April 24, 2003, defendant was found with methamphetamine in his pocket. He pled guilty to possession of a controlled substance (Health & Saf. Code, § 11377, sub d. (a)). The court suspended imposition of sentence, granted three years of Proposition 36 probation and ordered various fines.
We use the designation “case B” for case MCR015461.
Proposition 36 governs sentencing for nonviolent drug possession offenses. “On November 7, 2000, ... California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000. Proposition 36 amended state law to require that certain adult drug offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, instead of receiving a prison term or probation without drug treatment. [Citation.]” (People v. Floyd (2003) 31 Cal.4th 179, 183.)
Case C
On January 15, 2005, a probation search of defendant’s home revealed methamphetamine and drug paraphernalia in his bedroom. Defendant pled no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). The trial court suspended imposition of sentence, placed defendant on Proposition 36 probation for three years and ordered various fines.
We use the designation “case C” for case MCR020805.
Case D
On January 28, 2006, defendant allegedly slapped his ex-girlfriend, forcibly took her purse and forced her to the ground. Petitions were filed in cases A, B and C to revoke defendant’s probation. Following a contested hearing, the trial court found by a preponderance of the evidence that defendant had committed misdemeanor spousal battery (§ 243, subd. (e)(1)) and had therefore violated his probation by failing to obey all laws. The court revoked defendant’s probation in cases A, B and C.
We use the designation “case D” for case MCR023952.
In case A, the court ordered defendant to serve 22 days in jail and credited him for 22 days in jail.
In case B, the court imposed the upper term of three years (as the principal term) and ordered defendant to pay various fines.
In case C, the court imposed a consecutive term of eight months and ordered defendant to pay various fines.
DISCUSSION
I. Upper Term Sentence
Defendant contends his upper term sentence violated Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]. We disagree.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.)
Blakely held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Blakely described three types of facts that a sentencing judge can properly use to impose an aggravated sentence: (a) “‘the fact of a prior conviction’” (id. at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c) facts “admitted by the defendant” (ibid., italics omitted).
Cunningham held that aggravating factors, other than a prior conviction, used to impose an upper term for a criminal offense must be submitted to a jury and proved beyond a reasonable doubt, according to the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. at p. __.) As a result, California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent that it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (Id. at p. __.)
In the recent case of People v. Black (2007) 41 Cal.4th 799 (Black II ), the California Supreme Court concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, at p. 816.)
Here, in imposing the upper term, the trial court relied on defendant’s poor performance on probation and his extensive criminal record, including six misdemeanor convictions, four felony convictions, and also probation violations -- a criminal history beginning in 1974 without “any significant gaps in it.” In mitigation, the court noted that defendant had completed a grant of misdemeanor probation from 1974 to 1977, but the court gave little weight to that factor in light of the 29 years of criminal conduct that followed. Because the trial court relied on defendant’s record of prior convictions in imposing the upper term, defendant’s federal constitutional right to a jury trial under the Sixth Amendment and his right to due process under the Fourteenth Amendment as explained in Blakely and Cunningham were not violated. (Black II, supra, 35 Cal.4th at p. 818.)
II. Probation Revocation Fine in Case B
Defendant maintains that in case B the trial court erroneously imposed a probation revocation fine pursuant to section 12022.44 because that statute had not yet been enacted when he was placed on probation in 2003. (People v. Callejas (2000) 85 Cal. App.4th 667 [parole revocation fine was punitive and its imposition pursuant to statute enacted after commission of crime violated ex post facto prohibition].) We accept the People’s concession and shall order the fine stricken.
Section 1202.44 provides: “In every case in which a person is convicted of a crime and … a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation ….”
III. Court Security Fee in Case B
Defendant argues we should strike the $20 security fee (§ 1465.8) specified in the abstract of case B because the fee was not in existence at the time and was never verbally mentioned or ordered by the trial court.
Defendant committed the offense in case B on April 24, 2003, and was convicted on August 11, 2003. Section 1465.8, which became effective on August 17, 2003 (Stats. 2003, ch. 159, § 25), provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense ….” (§ 1465.8, sub d. (a)(1)).
The court security fee is a non punitive fee, assessed for use of a court facility. (People v. Schoeb (2005) 132 Cal. App.4th 861, 866; People v. Wallace (2004) 120 Cal. App.4th 867, 877-878.) It “is not subject to the limitations of the ex post facto clause. [Citations.]” (Id. at p. 878.) Thus, although defendant committed the crimes before section 1465.8’s effective date, the court security fee is not a punitive fine and may be retroactively imposed. (Id. at pp. 878-879; People v. Alford (2007) ___ Cal.4th ___, ___.)
As defendant points out, the trial court failed to mention the court security fee on August 16, 2006, when it revoked defendant’s probation, but the fee nevertheless appears in the clerk’s minute order and on the abstract of judgment. Rendition of the judgment is normally an oral pronouncement, which the abstract of judgment should summarize without addition or modification. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Where the abstract is inaccurate, it must be corrected to reflect the judgment actually imposed. (Ibid.) Accordingly, defendant argues we must correct the abstract to correctly reflect the trial court’s oral pronouncement, which did not include the $20 court security fee.
What defendant fails to recognize, however, is that mandatory fines, fees, assessments and penalties that the trial court failed to impose are subject to imposition on appeal. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [erroneous omission of mandatory penalty presents pure question of law with only one answer], and cases cited therein; People v. Turner (2002) 96 Cal. App.4th 1409, 1413-1415 [because fee was mandatory, appellate court was empowered to order defendant to pay them]; see also People v. Terrell (1999) 69 Cal. App.4th 1246, 1255-1256 [the trial court’s failure to impose a mandatory fine constitutes unauthorized sentence].)
The court security fee is a mandatory fee, and because the trial court failed to mention the mandatory fee in the oral pronouncement of judgment, we modify the judgment to reflect its imposition. (See People v. Hong, supra, 64 Cal. App.4th at pp. 1084-1085 [judgment required modification to impose mandatory fine; abstract required correction to reflect modified judgment].) Here, the abstract of judgment already includes the mandatory court security fee and therefore requires no correction.
IV. Ability to Pay Supplemental Probation Report Cost in Case D
Lastly, defendant contends the trial court erred by failing to find he had the ability to pay the $150 supplemental probation report cost. He believes the case should be remanded to allow the trial court to take a knowing and intelligent waiver of a hearing from defendant or to conduct a hearing pursuant to section 1203.1b.
Section 1203.1b provides that in any case in which a presentence probation report is prepared, the court “shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost” of preparing the report. (§ 1203.1b, sub d. (a).) In addition, the probation officer “shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (Ibid.)
Section 1203.1b further provides that if the defendant fails to waive the right to a court determination of his ability to pay, “the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs ....” (§ 1203.1b, sub d. (b).)
In this case, the trial court ordered defendant to pay the $150 cost of the supplemental probation report pursuant to section 1203.1b, as recommended in the probation officer’s report. Apparently, the court did not make an express finding that defendant had the ability to pay this amount, and did not hold a hearing to determine his ability to pay. Defendant, however, had notice that the probation department recommended imposition of the report fee in the amount of $150. Nevertheless, he did not object to the fee, nor did he ask for a court determination of his ability to pay or a hearing on the issue. His failure to object to the fee or the lack of a hearing forfeited his procedural challenge on appeal. (People v. Valtakis (2003) 105 Cal. App.4th 1066, 1071-1072, 1076.)
The California Supreme Court has established, in a long line of cases beginning with People v. Walker (1991) 54 Cal.3d 1013 and continuing through People v. Welch (1993) 5 Cal.4th 228, People v. Scott (1994) 9 Cal.4th 331 and People v. Gonzalez (2003) 31 Cal.4th 745, that non jurisdictional sentencing issues not raised in the trial court are forfeited on appeal. In Valtakis, the court held that this rule applies to assessments imposed pursuant to section 1203.1b. The court concluded that the statutory requirement of a knowing and intelligent waiver of the defendant’s right to a hearing applies only in the trial court and does not affect the normal rule that failure to object forfeits appellate review. (People v. Valtakis, supra, 105 Cal. App.4th at pp. 1071-1072, 1076.)
DISPOSITION
The judgment is modified by (1) striking the probation revocation restitution fine (§ 1202.44) in case B (MCR015461) and (2) adding the mandatory $20 court security fee, which is correctly reflected in the abstract of judgment in case B (MCR015461). The judgment is otherwise affirmed.
WE CONCUR: Levy, Acting P.J., Hill, J.
Section 1210.1, subdivision (a), which was enacted by Proposition 36 and became effective in 2001, provides in relevant part: “[A]ny person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose. Probation shall be imposed by suspending the imposition of sentence….” (Italics added.)
Imposition of the assessment in the absence of a hearing or a waiver does not result in a sentence that is unauthorized and therefore in excess of the court’s jurisdiction. A sentence is unauthorized only if it could not lawfully be imposed under any circumstance in the particular case. Such an error is reviewable on appeal in the first instance only because it is independent of any factual issues presented by the record at sentencing. (People v. Scott, supra, 9 Cal.4th at p. 354.) In Valtakis, as in the present case, the assessment could have been lawfully imposed if the defendant had waived his right to a determination of ability to pay or if the court had held a hearing to make that determination. Thus, the error in imposing the assessment was procedural only and did not result in an unauthorized sentence. (People v. Valtakis, supra, 105 Cal. App.4th at p. 1072.) It is therefore the kind of sentencing error to which the forfeiture rule applies. (Ibid.; People v. Scott, supra, at pp. 351, 356.)