Opinion
C081795
03-01-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOSEPH MARTINEZ et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MC RD CRF 150007586)
Appointed counsel for defendant William Joseph Martinez and appointed counsel for defendant Adam James Paul Marchi ask this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We will modify the judgments to correct an error in the imposition of fees and direct the trial court to amend its sentencing minute order of each defendant. Finding no other arguable error that would result in a disposition more favorable to either defendant, we will affirm the judgment as modified.
We provide the following brief description of the facts and procedural history of the case pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 124.
On October 22, 2015, defendants Martinez and Marchi were both found in possession of more than one ounce of marijuana.
On December 30, 2015, defendants were charged by information with cultivating marijuana (Health & Saf. Code, § 11358—count 1) and possession of marijuana for sale (Health & Saf. Code, § 11359—count 2), both felonies.
On March 3 and 4, 2016, defendant Martinez requested that the court dismiss the case pursuant to Penal Code section 1382, arguing his right to a speedy trial had been violated. Defendant Marchi joined in the request. The trial court denied the request, finding good cause for the delay.
Undesignated statutory references are to the Penal Code. --------
On March 8, 2016, the information was amended to include a charge of possession of more than 28.5 grams of marijuana. (Health & Saf. Code, § 11357, subd. (c)—count 3.) That same day, both defendants entered negotiated pleas of no contest to misdemeanor possession of more than one ounce of marijuana (Health & Saf. Code, § 11357, subd. (c)), in exchange for dismissal of the remaining charges and a grant of two years of informal probation.
The trial court placed both defendants on two years of informal probation, awarded each defendant four days of presentence custody credit (two actual days plus two days of conduct credit), and imposed fees and fines against each defendant.
Both defendants filed timely notices of appeal and requested certificates of probable cause. The trial court granted both requests.
We appointed counsel to represent each defendant on appeal. Counsel for each defendant filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Both defendants were advised by their respective counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. To date, neither defendant has filed a supplemental brief.
Our review of the record reveals several errors in the imposition of fees and fines. In pronouncing judgment, the court orally imposed the following fees and fines against each defendant: a $390 fine, a $150 restitution fine, a $40 court operations assessment, and a $30 conviction assessment. The court's written minute orders imposed fees and fines as follows: a fine of $390, a $150 restitution fine (§ 1202.4, subd. (b)), a $150 probation revocation fine, stayed pending successful completion of probation (§ 1202.44), a $15 administrative fee (§ 1202.4, subd. (l)), a $40 court operations assessment (§ 1465.8), a $30 conviction assessment (Gov. Code, § 70373), and a $151 booking fee (Gov. Code, § 29550.2).
First, the court imposed a fine of $390 without referring to any corresponding statutory authority. The March 8, 2016 minute orders similarly imposed a fine of $390 but omitted any corresponding statutory authority. Because we are unable to identify the statutory authority for the $390 fine, we will direct the trial court to prepare amended minute orders that clearly set forth the statutory basis for the $390 fine. (See People v. Eddards (2008) 162 Cal.App.4th 712, 718, citing People v. High (2004) 119 Cal.App.4th 1192, 1200 [a minute order that omits the statutory bases of fines and fees is insufficient].)
Next, the minute orders imposed a $151 booking fee (Gov. Code, § 29550.2, subd. (a) [ability to pay finding required]), which was not part of the court's oral pronouncement of judgment. The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389 (Zackery).) The oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. (Zackery, at pp. 385-390.) The nonmandatory booking fee, which was not orally imposed by the trial court, must therefore be stricken from the March 8, 2016 minute orders.
Finally, the minute orders imposed a mandatory $150 probation revocation fine, stayed pending successful completion of probation (§ 1202.44), and a $15 administrative fee (§ 1202.4, subd. (l)), neither of which was included in the court's oral pronouncement of judgment. As previously noted, the minutes cannot add anything substantive to the oral pronouncement. (Zackery, supra, 147 Cal.App.4th at pp. 387-388.) However, when a trial court fails to impose a statutorily mandated fine or fee, the sentence is unauthorized, and the appellate court may correct the error, even if the People failed to bring it to the trial court's attention. (People v. Smith (2001) 24 Cal.4th 849, 852-853; People v. Scott (1994) 9 Cal.4th 331, 354; People v. Turner (2002) 96 Cal.App.4th 1409, 1413.)
The section 1202.44 fine is mandatory. We conclude the fee under section 1202.4, subdivision (l) is also mandatory, as that statute states that if a county board of supervisors takes action to establish the fee, the fee is "to be added to the restitution fine and included in the order of the court . . . ." Thus, the Legislature has mandated that the court include the fee in the court order. Because the minute orders correctly include those mandatory fees and fines, no action need be taken on our part.
Having undertaken an examination of the entire record pursuant to Wende, we find no other arguable error that would result in a disposition more favorable to either defendant.
DISPOSITION
The $151 booking fee (Gov. Code, § 29550.2, subd. (a)) reflected in the March 8, 2016 minute order of each defendant is stricken. The trial court is directed to amend its March 8, 2016 minute orders to clearly set forth the statutory basis for the $390 fine imposed at sentencing. As modified, the judgments are affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. HULL, J.