Opinion
E078807
06-30-2023
THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN MUJICA, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney Generals, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INF1800173 Anthony R. Villalobos, Judge. Affirmed with directions.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney Generals, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant Esteban Mujica strangled his father with a belt until he was rendered unconscious. Defendant was found guilty of attempted murder, assault with a deadly weapon, attempting to dissuade a witness and resisting arrest. In May 2021 the trial court suspended his 10-years-to-life sentence and granted him formal probation for a period of 60 months. In July 2021, the People filed a petition alleging that defendant violated his probation based on a new charge of battery on a peace officer. Defendant represented himself at trial on the probation violation. The trial court found that he had violated his probation. Defendant's request to have counsel appointed for him on the day of sentencing was denied. The trial court imposed the 10-years-to-life state prison sentence.
Defendant claims on appeal that (1) the trial court erred by refusing his request for appointment of counsel and by failing to appoint him advisory counsel at sentencing in violation of his federal constitutional rights to due process and assistance of counsel; (2) the trial court erred by not considering whether defendant was eligible for mental health diversion under Penal Code section 1001.36 at the sentencing hearing; and (3) the trial court erred by imposing fines and fees.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY
On June 14, 2019, defendant was found guilty in count 1 of attempted, willful and deliberate murder of his father within the meaning of sections 664 and 187. The jury further found true for count 1 that defendant inflicted great bodily injury on his father within the meaning of section 12022.7, subdivision (a). He was additionally found guilty in count 2 of assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)); in count 3 of dissuading a witness (§ 136.1, subd. (b)(2)); and in count 4 of resisting or obstructing a peace officer, a misdemeanor (§ 148, subd. (a)(1)).
Defendant was sentenced on May 21, 2021. He was represented by private counsel at the sentencing hearing. The trial court noted that defendant was presumptively ineligible for probation. However, the court found that the charges stemmed from an argument with his father and that he had used a belt, not a knife or something of that nature. The court further found that defendant was young and had no prior felony convictions. The court found that it was the unusual case in which probation should be granted. It imposed a total sentence of 10 years to life, which was ordered suspended. Defendant was placed on formal probation not to exceed 60 months.
The trial court also imposed several fines and fees which will be discussed in more detail, post.
On July 28, 2021, the Riverside County District Attorney's Office filed a petition to violate probation against defendant. It alleged that a complaint had been filed against defendant charging him with a violation of section 243, subdivision (b), based on an incident occurring on July 26, 2021. Trial on the probation violation commenced on February 8, 2022. Defendant represented himself. Defendant was found to have violated his probation. At a subsequent sentencing hearing, the trial court imposed the previous 10-years-to-life state prison sentence.
Defendant has not requested that this court review the reporter's transcript from the original trial. The sentencing transcript from the original proceeding has been included in the reporter's transcript. As such, we will only consider that evidence that was presented in connection with the probation violation.
Palm Desert Sheriff's Deputy Nelson (Nelson) was on duty on July 26, 2021, at approximately 10:00 a.m., when he was called to investigate a disturbance on a public bus. The report detailed that a person wearing a camouflage jacket had been involved in a physical altercation on the bus. When Nelson arrived at the location, he observed defendant, who was wearing a camouflage jacket, standing on the corner near the bus.
Nelson approached defendant and advised him that he was being investigated in regard to a physical altercation on the bus. Defendant was cooperative and Nelson put him in handcuffs. Palm Desert Sheriff's Deputy Martin (Martin) arrived to assist Nelson. When she arrived, defendant was sitting on a bench and was handcuffed. Nelson went to his vehicle in order to do a records check on defendant.
Martin was left alone with defendant. Defendant stood up and Martin told him to sit down. Defendant complied. He did this several additional times. Martin told defendant he needed to remain seated or he would be placed in one of the patrol vehicles. Defendant stood up and advised Martin that his bus had arrived and that he needed to go. Martin told him to sit down but he refused. Martin grabbed defendant's left elbow, intending to direct him to her patrol vehicle. Defendant tried to run away but Martin held onto his arm. Martin was able to trip defendant and pushed his body to the ground. Martin also fell but then put her knee on top of defendant's back and yelled for help.
Nelson was in his vehicle when he heard Martin yell "get over here." Nelson looked in his rearview mirror and saw that both Martin and defendant were on the ground. Nelson grabbed defendant and walked him to his vehicle.
As Nelson walked defendant to his vehicle, he was resistant and kept "dropping his hips." Defendant tried to pull away when they got to the vehicle. Nelson had to pin defendant to the vehicle. As defendant was pinned to the vehicle, defendant spit in Nelson's face three times. Nelson finally was able to get defendant into the back of his vehicle. Nelson drove defendant to the sheriff's station. Defendant later apologized to Nelson for spitting in his eyes.
Defendant testified that while he was on the bus, someone hit him twice on the head. He did not know who hit him or why they had hit him. He got off the bus and waited for the next bus. At that time, Nelson and Martin arrived. Defendant was upset because he had a court appearance and did not want to miss it. Defendant testified, "So, you know, they just-obviously the whole incident happened. There's no doubt about that." Defendant indicated it was a big misunderstanding. The trial court concluded that defendant violated his probation.
DISCUSSION
A. APPOINTMENT OF COUNSEL FOR SENTENCING
Defendant contends the trial court erred by refusing to appoint counsel to represent him at sentencing, and also by failing to appoint advisory counsel. Such error violated his federal constitutional due process rights and right to assistance of counsel. He insists that such error is reversible per se error.
1. ADDITIONAL FACTUAL HISTORY
Defendant was represented at the original trial by private counsel. Defendant first appeared on the probation violation on July 28, 2021. He advised the trial court he could not afford private counsel and he was appointed counsel. At the next hearing on August 6, 2021, defendant sought to represent himself. The trial court advised defendant that it was not a good idea. Defendant waived his rights and his request to represent himself was granted. Defendant was appointed an investigator.
On February 8, 2022, the matter was called for a hearing on the probation violation. Prior to the hearing, the trial court advised defendant that he had a right to an attorney and that it was not the "wisest" decision to proceed without an attorney. Defendant stated that he understood and wanted to proceed in pro. per. The trial court was willing to appoint defendant an attorney but defendant declined appointment of counsel.
After defendant was found by the trial court to have violated his probation, sentencing was scheduled for four weeks later. The trial court advised defendant he could present witnesses to support how he was doing on probation at the time of sentencing. He was told he could subpoena his family to appear on his behalf. A probation report was prepared for sentencing.
A hearing was held on March 18, 2022. The trial court recounted that defendant was originally placed on probation despite being convicted of attempted murder. However, after he was placed on probation, it was only a short time until he got into the altercation with the deputies that gave rise to the probation violation. The trial court inquired of defendant whether he wanted to continue to represent himself for sentencing. Defendant stated he wanted to proceed in pro. per.
Defendant had his father appear on his behalf. Defendant's father advised the trial court that defendant had been doing well on probation up until the altercation with the deputies. He was attending Alcoholics Anonymous classes. Defendant's father had no concerns with defendant being in his house. Defendant's mother also appeared and stated she had been taking defendant to his appointments with the probation department. He was complying with probation and following her house rules. She insisted he needed mental help.
Defendant spoke with the trial court and asked that he be given a second chance. He promised that he would comply with all orders. He would attend more classes. The People requested that the trial court impose the 10-years-to-life suspended sentence based on the seriousness of both the original crimes and the probation violation. The trial court intended to continue the matter to the following Monday in order for defendant to provide paperwork as to how he was complying with his probation conditions.
At the end of the hearing, defendant inquired, "would you be able to appoint me an advisory counsel at this time or no?" The trial court stated that they would discuss it at the continued hearing, but inquired whether he wanted to now be represented by counsel. Defendant responded, "I would still like to be pro per but have an-appoint an advisory counsel." The prosecutor asked that counsel be appointed immediately so the matter did not have to be continued any further. Defendant asked that his prior private counsel be appointed as advisory counsel. The trial court was concerned as defendant had not confirmed with his prior counsel that he would be able to assist defendant at this time. The trial court noted that there was not a list of advisory counsel that could be appointed. The trial court would appoint the public defender if defendant wanted to be represented by counsel. Defendant asked for specific counsel from the public defender's office to be appointed. The trial court advised defendant that specific counsel could not be appointed; the trial court would choose counsel. The trial court asked defendant, "So you want-you want somebody to represent you now." Defendant responded, "No, I-I still want to represent myself." The trial court responded, "Then we'll just see you on Monday. If you accept the request, then I will go ahead and appoint counsel at that time, sir. But if you want me to appoint the public defender, I could do that now and then somebody will be able to talk to you before you come back on Monday." Defendant responded that he was going to wait until Monday.
The trial court asked again, "So listen, sir, very carefully. Do you want me to appoint a public defender to help you? I can appoint a public defender, and then . . . someone will speak to you on Monday." Defendant responded, "What date would-with you appointing the public defender, what would he be-be over-moving over? The trial court responded, "That means that they will . . . take over the case and they'll assist you." Defendant said, "No." The matter was continued.
The matter was again called on March 21, 2022. The trial court reviewed defendant's lengthy record of arrests and misdemeanor convictions. The trial court also had reviewed the probation report, which strongly recommended that defendant be sentenced to state prison. The trial court inquired of defendant if he had family or anyone else who could provide any evidence or testimony that could sway the court.
Defendant responded, "Can I remove myself from the pro per panel?" The trial court stated, "I'm going to deny it at this point because I asked you on Friday if you wanted me to appoint an attorney, and you told me no. I asked you several times, and you told me no. You said you could represent yourself.... I think I asked you three times, and you told me no. [¶] So at this point, sir, we're here for sentencing. This just would seem to be a-for the record, it would be a delay tactic, because I did ask you. It should be on the record. I think I asked you about two or three times." The prosecutor confirmed that defendant had been asked multiple times if he wanted to represent himself. The trial court asked if defendant had anything else to add, and he responded, "No."
The prosecutor argued for a state prison sentence based on defendant's criminal history and that he had been given multiple chances. The trial court found that defendant's actions had basically "taken the decision out of [its] hands." The trial court imposed the 10-years-to-life sentence.
2. ANALYSIS
a. Appointment of Counsel
Defendant exercised his rights under the Sixth and Fourteenth Amendments to the federal Constitution and Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself during the probation revocation trial. At the final sentencing hearing, he requested that he be appointed counsel. The trial court rejected the request finding it was a delay tactic.
"[A] defendant in a state criminal trial has a federal constitutional right to represent himself." (People v. Elliott (1977) 70 Cal.App.3d 984, 989.) "When a criminal defendant who has waived his right to counsel and elected to represent himself under [Faretta] seeks, during trial, to revoke that waiver and have counsel appointed, the trial court must exercise its discretion under the totality of the circumstances." (People v. Lawrence (2009) 46 Cal.4th 186, 188 (Lawrence).)
Some factors the trial court should consider in assessing whether to appoint counsel, "along with other relevant circumstances," include," '(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.'" (Lawrence, supra, 46 Cal.4th at p. 192; see also People v. Gallego (1991) 52 Cal.3d 115, 163-164.) The trial court need not "review on the record each factor" and no "one factor is necessarily determinative." (Lawrence, at p. 196.)
As for the first factor, defendant hired private counsel for his original trial. When he first appeared on the probation violation, he advised the trial court he could not afford private counsel and he was appointed counsel. At the next hearing, defendant sought to represent himself and his appointed counsel was relieved.
After he was found to have violated his probation, the matter was set for sentencing. At the first sentencing hearing, the trial court inquired if he wanted to continue to represent himself. Defendant initially assured the trial court that he wanted to proceed in pro. per. for sentencing. The trial court decided to continue the matter until the following Monday so that defendant could obtain proof that he had been complying with his probation terms and conditions. Defendant at this time asked for advisory counsel. Defendant rejected that he wanted counsel appointed for him. At the next hearing, defendant rejected appointed counsel. At the March 21 sentencing hearing defendant, at the beginning of the hearing, did not seek to have counsel appointed. Defendant sought appointed counsel after the trial court reviewed his extensive criminal record and the probation report. Defendant had a history of vacillating between appointed and private counsel and choosing to represent himself. "[A] defendant's proclivity to seek changes in counsel status will generally weigh against finding an abuse of discretion." (Lawrence, supra, 46 Cal.4th at p. 196.)
Second, defendant did not state his reason for wanting appointed counsel. Defendant had previously rejected appointed counsel and gave the trial court no reason for this sudden change. Third, the matter was at the final stage of sentencing when defendant requested that counsel be appointed. Defendant had already represented himself at the probation revocation hearing, and the only matter remaining was the trial court's decision on whether to reinstate probation or impose the original sentence. Fourth, the matter was at the sentencing stage so arguably the disruption to the trial court proceedings was minimal. However, the trial court believed that the request was made solely for the purposes of delay. These three factors weigh toward the trial court not appointing counsel.
Finally, the trial court had observed defendant during the trial court proceedings and expressed no concerns. Defendant was aware of the law and made reasonable arguments during the probation revocation hearing. He had his father and mother present to support his argument that probation should be reinstated. Defendant was likely to be effective in continuing to represent himself at sentencing.
Even if the trial court only relied on the fact that the request was for purposes of delay, the trial court did not abuse its discretion. (Lawrence, supra, 46 Cal.4th at p. 193.) Considering the totality of the circumstances before the trial court, it did not abuse its discretion by refusing to appoint counsel at sentencing on the probation violation.
b. Advisory Counsel
Defendant also contends that the trial court failed to exercise its discretion to appoint advisory counsel at sentencing, which constitutes reversible per se error. The People contend that defendant abandoned his request for advisory counsel, thereby waiving the issue on appeal.
"It is settled that a defendant who elects to represent himself has no constitutional right to advisory counsel or any other form of hybrid representation." (People v. Debouver (2016) 1 Cal.App.5th 972, 976.) A trial court in a noncapital case has no sua sponte duty to appoint advisory counsel. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1429-1430.)
In People v. Stanley (2006) 39 Cal.4th 913, the defendant "orally interposed [a] request for self-representation during a renewed Marsden motion made in municipal court one year before his preliminary hearing and nearly two years before the start of trial, out of apparent annoyance or frustration with his first appointed counsel." (Id. at pp. 932-933.) The defendant never renewed the request but subsequently accepted a substitution of appointed counsel, as well as the appointment of an additional attorney to assist the primary appointed counsel. (Id. at p. 933.) The California Supreme Court concluded, "[i]n light of defendant's subsequent acceptance of several appointed counsel to represent him without ever renewing his request for self-representation," he abandoned his desire to be self-represented and therefore waived the issue on appeal. (Ibid; see also People v. Dunkle (2005) 36 Cal.4th 861, 909, overruled on other grounds in People v. Doolin (2009) 45 Cal.App.4th 390, 421, fn. 22 ["Faretta right, once asserted, may be waived or abandoned"].)
Such waiver reasonably also applies to the appointment of advisory counsel. Here, defendant requested that advisory counsel be appointed to assist him. The trial court stated that the court did not have a panel of attorneys who could be appointed as advisory counsel. Defendant requested that his prior private counsel be appointed but the trial court was concerned that counsel may not be available. The trial court continued the matter until the following Monday to further address the issue. However, at that Monday hearing, defendant never requested advisory counsel. Instead, he reaffirmed that he wanted to proceed in propria persona and rejected appointment of counsel. Defendant abandoned his request to have advisory counsel appointed and has waived the issue on appeal. (People v. Stanley, supra, 39 Cal.4th at p. 933.)
c. Prejudice
Even if we were to assume the court abused its discretion in denying defendant's request for appointment of counsel, we would conclude any such error was harmless because he has failed to meet his burden of showing a reasonable probability he would have obtained a more favorable outcome. (People v. Elliott, supra, 70 Cal.App.3d at p. 998, [applied the People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) standard of prejudice to a case involving the denial of appointment of counsel after a defendant had waived his right to counsel].) Further, the failure to appoint advisory counsel would also be subject to the Watson standard of prejudice. Where the trial court fails to exercise its discretion in refusing to appoint advisory counsel, but the denial would not have been an abuse of discretion if the court had exercised its discretion, prejudice is assessed under the harmless error standard articulated in Watson. (People v. Crandell (1988) 46 Cal.3d 833, 864-865, abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346.].) "When the initial sentencing court imposes a state prison sentence but stays execution of the sentencing pending completion of probation, on a subsequent violation of probation the court does not have discretion to change the previously indicated sentence. [Citation.] The court does have discretion to reinstate probation. [Citation.] Reinstatement of probation, however, requires a determination by the trial court that the interests of justice so require. [Citation.] What the interests of justice require in a particular case constitutes a question uniquely addressed to the broad judicial discretion of the trial court." (People v. Stuckey (2009) 175 Cal.App.4th 898, 916.)
Here, the trial court originally granted probation to defendant-against the recommendation of the probation department and the People. Once defendant violated his probation, the court spent an extensive amount of time trying to work with defendant to determine whether probation should be reinstated. In the end, the trial court stated that "what [it was] really concerned about" was defendant's lengthy prison record. The trial court was also concerned that defendant had committed the probation violation just months after being granted probation. The trial court indicated that it had "tried [its] hardest" to work with defendant. The trial court was also concerned about defendant's escalating violence and that he was going to end up killing someone, possibly a member of his family. The trial court advised defendant that "I was really hoping by putting you on probation you could turn your life around. I don't know what is inside you, what demons you have that are making you just resist and fight everyone. I did bend over backwards." The trial court concluded, "And I think at this point, you've kind of taken the decision out of my hands. I can't really in good consciousness send you back home and put your family in danger because it appears that you're a ticking time bomb." The trial court did not believe that defendant could successfully complete probation and sentenced him to the 10-years-to-life prison sentence.
Defendant has not shown that had he been appointed counsel or advisory counsel, the results of the sentencing would have been different. The trial court had to either reinstate probation or impose the original sentence. The trial court was concerned that defendant would not successfully complete probation, that he had an extensive criminal record, and that he was a danger to society and his family. Reversal based on the trial court failing to appoint counsel or advisory counsel is not warranted in this case.
B. MENTAL HEALTH DIVERSION
Defendant contends the trial court erred by failing to consider him for mental health diversion pursuant to section 1001.36 at the time of sentencing. Remand is necessary in order for the trial court to conduct an eligibility hearing for mental health diversion.
1. ADDITIONAL FACTUAL HISTORY
At a pretrial hearing conducted on September 15, 2021, defendant, who was representing himself, requested that the matter be moved to mental health court. Defendant stated, "Because I had an interview with a psychiatrist, and apparently I have a PTSD because I had too many traumatic events that happened in my life." He also claimed he was hearing voices. The trial court agreed to appoint Dr. Renee Wilkinson to evaluate defendant. Dr. Wilkinson was to have access to all of defendant's records and was to interview him. The report was to be due in six weeks.
The trial court advised defendant that he would be the only one who would receive the report. It was up to defendant to determine whether he wanted to share the report with the trial court and the People. He would need to share it in order to receive the benefits of getting into mental health court. It was his decision since he was representing himself.
On September 24, 2021, the trial court appointed another doctor, Dr. Stacey Waring as Dr. Wilkinson could not take the appointment. The trial court allowed for six to eight weeks in order for the report to be prepared. There is nothing further in the record as to whether Dr. Waring prepared a report or the results.
At a hearing held on March 18, 2022, defendant's mother appeared on defendant's behalf. She stated, "And all I can say at this time is that my son does have a little bit of mental issues, and I stated that last time, he needs help." The trial court at sentencing did acknowledge that defendant's mother believed defendant needed mental health treatment. Defendant never requested that the trial court consider mental health diversion at the time of sentencing.
2. ANALYSIS
"Section 1001.36 authorizes a pretrial diversion program for defendants with qualifying mental disorders. The statute defines' "pretrial diversion'" as 'the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.'" (People v. Frahs (2020) 9 Cal.5th 618, 626.) Section 1001.36 was enacted effective June 27, 2018, and has since been amended. (Stats. 2018, c. 34 (A.B. 1810), § eff. June 27, 2018.) Defendant's probation violation trial commenced in May 2021, well after section 1001.36 was enacted. "If mental health diversion is granted and the defendant satisfactorily completes the court's approved mental health treatment program, then the defendant's criminal charges are required to be dismissed and the defendant's arrest on the charges 'shall be deemed never to have occurred.'" (People v. Gerson (2022) 80 Cal.App.5th 1067, 1078 (Gerson).)
"The defendant bears the burden of making a prima facie showing that he or she meets the minimum requirements of eligibility for diversion." (Gerson, supra, 80 Cal.App.5th at pp. 1078-1079; People v. Graham (2021) 64 Cal.App.5th 827, 835, review granted Sept. 1, 2021, S269509 ["[T]he onus is placed on the defendant to raise the issue of diversion"]; § 1001.36, subd. (e).)
Defendant raised the issue of diversion at the pretrial hearings on the probation revocation. The trial court appointed Dr. Waring to evaluate him. The trial court advised defendant that it was his responsibility to provide the report to the court if he wanted to benefit from mental health court. There is nothing in the record to support the outcome of Dr. Waring's evaluation of defendant. It is conceivable on this record that the report did not yield helpful information for defendant's claim that he was entitled to mental health diversion, and defendant chose to abandon the request. It was up to defendant to present the results of the report to the trial court. Defendant has failed to meet his burden of providing evidence that he was eligible for mental health diversion. (Gerson, supra, 80 Cal.App.5th at pp. 1078-1079.)
Moreover, defendant did not request mental health diversion at the time of sentencing. Clearly, defendant was aware of mental health diversion and did not seek to have the trial court consider it at the time of sentencing on the probation violation. "All issues . . . are subject to the rule of forfeiture, and a defendant's failure to raise the issue before the trial court will generally result in the appellate court's refusal to consider it." (People v. Navarro (2013) 212 Cal.App.4th 1336, 1347 fn. 9; see also People v. Graham, supra, 64 Cal.App.5th at p. 836 [defendant waived issue of mental health diversion by failing to bring it to the attention of the trial court].) As such, he has forfeited his claim that the trial court erred by failing to consider mental health diversion at the time of sentencing.
C. FINES AND FEES
Defendant insists the abstract of judgment and minute order from sentencing must be modified to eliminate all fines and fees. The People insist that the sentence must be modified to reflect the $300 restitution fine imposed pursuant to section 1202.4, subdivision (b), imposed at the original sentence has been satisfied; that the mandatory parole revocation fine pursuant to section 1202.45 should have been imposed; and that a probation revocation fine should be imposed pursuant to 1202.44 and be due and payable.
1. ADDITIONAL FACTUAL BACKGROUND
The probation report for the original sentencing recommended that probation be denied and that defendant be sentenced to state prison. It listed the fines and fees that should be imposed, including a booking fee pursuant to Government Code section 29550, and a restitution fine pursuant to section 1202.4, subdivision (b). At the original sentencing hearing conducted on May 21, 2021, the trial court stated that it had chosen to grant probation. It stated there was a booking fee in the amount of $514.58. There was also a restitution fine in the amount of $300. The trial court stated, "You know, I'm just going to deem those served out with all the time that he's done." The trial court imposed no direct victim restitution or a probation revocation fine pursuant to section 1202.44. The trial court then stated, "You're to pay a court operation assessment fee of $40 per convicted charge. And I'm going to give him credit [for] time served for that. Also pay a court conviction assessment fee for $30 per convicted misdemeanor or felony charge. I'm also going to give him credit [for] time served. He's been in custody for a long time. [¶] I'm just deeming all fines and fees served out."
There was no mention of fines and fees in the second probation report. At the sentencing on the probation violation, the trial court stated, "All right. The Court will impose a criminal conviction fee of $30 per charge; the court-is it assessment fee?" The court clerk stated "Yes." The trial court provided, "-$40 per count." No other fines or fees were imposed. The minute order from sentencing for March 21, 2022, states the trial court ordered that a restitution fine in the amount of $300 be imposed pursuant to Penal Code section 1202.4, subdivision (b), in addition to a stayed parole revocation fine in the amount of $300 pursuant to Penal Code section 1202.45. A court operations fine was imposed pursuant to Penal Code section 1465.8, subdivision (a)(1) in the amount of $160, and a criminal assessment fee in the amount of $120 was imposed pursuant to Government Code section 70373. The abstract of judgment reflected these fines and fees. No booking fee appears on the abstract of judgment.
2. ANALYSIS
The People agree that the abstract of judgment should be amended to eliminate the court operations fine of $160 and the criminal conviction assessment fee in the amount of $120 as it was already imposed and considered to have been paid at the time of the original sentencing. We will order such correction to the abstract of judgment.
Defendant also contends that this court should vacate the booking fee imposed pursuant to Government Code section 29550 at the original sentencing. The People insist that such change is not necessary as the trial court imposed the booking fee but declared it had been satisfied by time served. There is no outstanding amount due on the booking fee. Government Code section 6111, subdivision (a) provides that "On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to . . ., subdivision (c) or (f) of Section 29550, . . . as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." We agree with the People that the booking fee in this case had already been satisfied. It is not reflected in the abstract of judgment. As such, the booking fee need not be vacated.
Finally, the People agree that defendant already satisfied the $300 restitution fine imposed pursuant to section 1202.4, subdivision (b), and that the abstract of judgment and minute order from sentencing should be modified to reflect that the restitution fine was imposed and satisfied. However, the People contend that the minute order from sentencing and the abstract of judgment should be modified to reflect that the trial court necessarily imposed a probation revocation fee in the amount of $300 pursuant to section 1202.44 at the time of the original sentence and that it should be reflected on the abstract of judgment as now due and payable. In addition, the abstract of judgment and minute order from sentencing do not need to be modified as the trial court had to impose a parole revocation fine in the same amount as the restitution fine pursuant to section 1202.45.
Section 1202.44 provides, "In every case in which a person is convicted of a crime and a conditional sentence or 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 or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record." Section 1202.45, subdivision (a), provides, "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4."
" 'Restitution fines are required in all cases in which a conviction is obtained.' [Citation.] The fine imposed under section 1202.44, . . ., is a probation revocation restitution fine, which was intended to mirror the parole revocation restitution fine currently provided for in section 1202.45." (People v. Guiffre (2008) 167 Cal.App.4th 430, 433-434, italics omitted.) When probation is revoked, the section 1202.44 fine becomes due and payable.
"[T]here is no provision for imposing a restitution fine after revocation of probation." (People v. Chambers (1998) 65 Cal.App.4th 819, 822.) However, in People v. Preston (2015) 239 Cal.App.4th 415, the court found that "[t]he trial court must impose a parole revocation fine '[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole.'" (Id. at p. 426.) As such, the
Preston court found that despite the trial court not originally imposing a parole revocation fine pursuant to section 1202.45 at the time it suspended execution of sentence and placed the defendant on probation, at the time of the probation revocation, it could impose the parole revocation fine. (Preston, at pp. 427-428.) In addition, the Preston court found that the trial court must impose a suspended probation revocation fine pursuant to section 1202.44 at the time it originally sentences a defendant to a suspended sentence, which becomes due and payable at the time probation is revoked. (Preston, at p. 429.)
We agree that the trial court should have imposed a probation revocation fine at the time it granted probation and imposed the restitution fine of $300. The trial court did not impose the fine, and there was no appeal. The language of section 1202.44 allows the trial court to refuse to impose the probation revocation fine if it finds "extraordinary and compelling reasons." Conceivably, the trial court could have chosen not to impose the fine. However, the only power that the trial court possessed at the time that probation was revoked was to impose the original probation revocation fine. After revoking a defendant's probation, the trial court is not authorized to impose a second restitution fine because the original fine survives the revocation of probation. (People v. Chambers, supra, 65 Cal.App.4th at pp. 822-823.) Since the probation revocation fine was not originally imposed, we see no ability for this court to impose it on this appeal from the probation revocation.
We do agree that at the time it sentenced defendant to 10 years to life, the trial court should have recognized that it had previously imposed a $300 restitution fine, which survived the probation revocation, but had been satisfied, and also imposed a parole revocation fine pursuant to section 1202.45 in the amount of $300."' "[U]nauthorized sentences," '" i.e., "obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings[,] are not waivable," and we may address errors in the imposition of a fine that present" 'pure questions of law'" even if the parties did not object below. (People v. Smith (2001) 24 Cal.4th 849, 852; see also People v. Scott (1994) 9 Cal.4th 331, 354.) We will order the abstract of judgment be corrected to reflect that the restitution fine of $300 imposed pursuant to section 1202.4, subdivision (b), has been satisfied. In addition, we confirm that the abstract of judgment and minute order should include a stayed parole revocation fine in the amount of $300.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment to reflect that the restitution fine of $300 imposed pursuant to Penal Code section 1202.4, subdivision (b), has been satisfied. The trial court is additionally directed to modify the abstract of judgment and minute order to properly reflect that a stayed parole revocation fine in the amount of $300 pursuant to Penal Code section 1202.45 should be imposed. The trial court is further directed to remove references to the court operations fee imposed pursuant to Penal Code section 1465.8, subdivision (a)(1), in the amount of $160, and the criminal assessment fee in the amount of $120 imposed pursuant to Government Code section 70373 from the abstract of judgment. Finally, the trial court is directed to forward a certified copy of the corrected abstract of judgment and minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P. J. FIELDS J.