Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court No. VCF153976 of Tulare County. Patrick J. O’Hara, Judge.
Robert P. Whitlock, 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, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Levy, J. and Dawson, J.
Defendant Luis Ochoa appeals a judgment of conviction on two grounds. First, defendant contends the trial court committed reversible error when it failed to fully inquire into the lack of communication and the conflicts that existed between him and his appointed attorney prior to denying his Marsden motions. Second, defendant contends that the abstract of judgment does not comply with People v. High (2004) 119 Cal.App.4th 1192 (High) because it does not separately list, with statutory basis, each fine, fee and penalty imposed at sentencing.
A motion for the substitution of appointed counsel on the ground that the current attorney is providing inadequate representation is commonly called a Marsden motion. (People v. Hart (1999) 20 Cal.4th 546, 603.) In People v. Marsden (1970) 2 Cal.3d 118, the California Supreme Court ruled that when a criminal defendant requests a new appointed attorney, a trial court must give the defendant an opportunity to explain and if possible document the basis for the contention that counsel is not providing adequate representation. (Id. at pp. 123-125.)
We conclude that the trial court did not abuse its discretion when it denied defendant’s Marsden motions. Defendant’s argument overstates the extent of a trial court’s duty to inquire into the details underlying a defendant’s claim of irreconcilable conflict.
We agree with the parties that the abstract of judgment, which refers to a breakdown contained in the probation report, must be amended to separately list the fines, fees, and penalties imposed at sentencing. We will remand this matter to the trial court with directions to correct the abstract of judgment.
PROCEDURAL HISTORY
Defendant was charged with three crimes in an information filed November 23, 2005. Count 1 was for burglary (Pen. Code, § 459). Count 2 was for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Count 3 was for the misdemeanor offense of providing false information to a police officer (Pen. Code, § 148.9, subd. (a)). The information also alleged that in 1993 defendant suffered a prior conviction of a serious felony—namely, assault with a firearm.
On November 28, 2005, defendant was arraigned. He pleaded not guilty and denied the enhancement allegation.
Marsden motions were heard and denied on December 5, 2005; January 23, 2006; April 13, 2006; July 18, 2006; and August 8, 2006. Defendant’s request to represent himself was heard on June 2, 2006.
A jury trial began on August 8, 2006, and ended on August 10, 2006. The court dismissed count 3 at the conclusion of the prosecution’s case. The jury found defendant guilty of counts 1 and 2 as charged. Following a bench trial, the court found true the prior conviction allegations.
On October 5, 2006, judgment was pronounced. The trial court denied probation and sentenced defendant to an aggregate prison term of nine years. Defendant received the two-year lower term on count 1, doubled to four years pursuant to Penal Code section 1170.12, subdivision (c)(1), plus an additional five years pursuant to section 667, subdivision (a)(1). Defendant received a four-year middle term on count 2, to run concurrently with the sentence imposed on count 1.
The trial court imposed a pair of restitution fines of $1,800 pursuant to Penal Code sections 1202.4 and 1202.45, the latter fine suspended pending successful completion of parole. The trial court ordered defendant to pay a $40 court security assessment pursuant to section 1465.8. The trial court also imposed fines, fees and penalties totaling $495 in accordance with the recommendation made in the probation report. Victim restitution in the amount of $1,405 also was imposed. Additional facts regarding the sentence, the probation report, and the abstract of judgment are set forth in part II.A, post.
Defendant filed a timely notice of appeal on October 12, 2006.
FACTS
The facts relating to the criminal charges provide background information for the issues raised by defendant on appeal. Consequently, those facts will be summarized here rather than set forth in detail.
The burglary allegedly occurred on the afternoon of October 26, 2005, at the home of Victoria Capello. Her daughter arrived home and opened the garage door with an electronic opener. She observed a man, subsequently identified as defendant, run from the patio area pushing his bicycle. Defendant held a white bucket and had a red bag strapped over his shoulder. When he reached the street, he got on the bike and rode down the street. The daughter used a cell phone to call her older sister, who lived nearby.
Her sister’s boyfriend overheard the phone conversation and immediately drove to Capello’s house. At the house, the boyfriend got a description and drove off in the direction taken by the man. He saw defendant, followed him to an apartment complex, and then called the police.
Ms. Capello testified that several rings, other jewelry, a pair of sunglasses, and a T-shirt were missing from her room. She also testified that a roll of stamps, her oldest daughter’s cell phone, another pair of sunglasses, and some change were missing from the house.
The police located appellant inside an apartment and found a red duffle bag similar to that described to them by the sister’s boyfriend. The items in the bag included a case of cigarettes. At the bottom of the cigarette case was a small baggie of methamphetamine. Defendant denied ownership of the methamphetamine but admitted to the police officer that he frequently used methamphetamine.
Defense Case
The description of the defense case in the following three paragraphs is taken from defendant’s opening appellate brief.
No fingerprints were found at the scene of the burglary and no bicycle tracks were observed at the scene. The cell phone defendant had in his possession when he was arrested belonged to him. He did not have the cell phone allegedly taken from Capello’s house.
None of the property belonging to the victim was found on appellant, in his bag, or elsewhere. No white bucket was found between the Capello’s house and the apartment complex.
Ms. Capello had told a defense investigator that the cell phone allegedly stolen was registered with Verizon at the time of the burglary. The investigator subsequently determined that at the time of the burglary, the number for that cell phone was not registered with Verizon.
Marsden Motions
On December 5, 2005, the trial court held a hearing in chambers with defendant and his attorney to address defendant’s concerns with his legal representation. Defendant stated that the public defender was not performing to the best of his abilities and that, when he asked the attorney things, the attorney made fun of him. Defendant stated, “[He c]alls me a whiner. He even gave me a nickname, calling me a whining Ochoa.” The trial court asked defendant what he thought the attorney should do to prove his innocence. Defendant said the attorney should subpoena a guy who told defendant that he was at a party, saw the people who called the cops on defendant, and saw one of those persons, a woman, pull jewels from a couch. In defendant’s view, these people framed him and took the jewels themselves. Defendant also wanted his attorney to subpoena someone named “Cory” who overheard the conversation between defendant and the guy who told defendant about the party and jewels.
Although the reporter’s transcript shows a date of December 12, 2005, for this Marsden hearing, correspondence to this court from the Tulare Superior Court indicated that this was error and the correct date was December 5.
Defendant also stated he “bumped heads” with the attorney during their first meeting when he tried to advise him of the witnesses and the attorney did not like that.
The attorney stated that defendant “calls me about five times a day, usually, to argue over the facts of the case.” The attorney also said he addressed defendant “as Luis the Whiner on one of his phone calls, about the fifth call that day. Five days in a row of calls like that.” The attorney stated he sent an investigator to get a statement from Barry King, the person who told defendant about the party and jewelry, and the investigator had yet to report any information. With respect to the second witness, the attorney also described the difficulties in locating someone when the only information given was the name Cory.
Defendant also told the trial court that he wanted to take a lie detector test and have the witnesses take a lie detector test, too. The court explained that lie detector tests were not admissible unless the parties stipulated.
Defendant asked the trial court if he could request a speedy trial and a motion to suppress evidence. The trial court said that (1) trial was set for January 23d and (2) it did not see a basis for a motion to suppress and that defendant should talk to his lawyer if he thought there was a basis.
The Marsden motion was denied.
On January 23, 2006, the trial court met with defendant, his attorney and court personnel in chambers. Defendant told the trial court that he felt his attorney was not helping him, was not acting to the best of his ability, and “I get nothing but negativity.” Defendant mentioned a witness named Barry who “said that he bought a ring off of these females for an eight-ball of drugs.” Defendant said that Barry came up with the name Luis Limbach, a person with knowledge of the alleged burglary who would testify “about him being there with them people and the females having the jewels and saying about—and mocking how they got a Mexican arrested for these charges. They got their own jewels. There’s two victims in this. One of them is the mom that she probably did get her family jewels stolen by her own daughters. You know, she lost out on that. And I’m the other victim, being that I’m deprived of my freedom because these people have a drug-addicted problem.”
The defense attorney told the trial court that (1) his investigator had talked to Barry King; (2) King said he obtained a ring or something, gave it to his girlfriend, and gave the girlfriend’s name and address in Woodlake; and (3) the investigator had searched extensively and could not find anyone by that name and could not find the address or anything close to it. The attorney also described what had been done to find Luis Limbach or someone with a similar name.
The trial court then asked defendant if there was anything else. Defendant said he could prove he was not making up the name, it had been called out in court, but he could not remember which court he went to.
The trial court stated: “All right. As far as the request to get a new lawyer, this lawyer is doing everything he can. He’s got an investigator working on it. There’s no reason to replace your lawyer.”
Defendant then stated: “Sir, from the beginning we had like words. We disagreed on something and I feel like from the beginning, he took a personal dislike to me. And I don’t want to be sentenced for something I did not do, sir.”
The trial court responded by stating that “we’ve had this hearing before where you are saying that he called you a whiner. I remember that. But … my theory is you two people don’t have to be the best of friends, but you have to have a good lawyer that’s doing a good job. That’s what you got. You work with him. He’s the best friend you have here in this courthouse. So you two talk. [¶] We’ll set a date.”
The in-chambers hearing ended. The defense asked for a continuance to find witnesses. After input from the prosecution and the defense attorney, the trial court reset the trial for April 2006.
On April 13, 2006, another Marsden motion was heard in chambers. The defense attorney provided details about an unsuccessful investigation to find a woman named “Missy” and stated no further investigation was realistic. Defendant stated he requested that Mr. Limbach “be subpoenaed so he can clear things up on this case. He knows the people that are accusing me of this crime that was never committed.” Defendant also stated he has asked his attorney “to do an investigation and see if these people had some kind of insurance on the jewelry or insurance on the house. And every time I asked him to do some kind of investigation concerning my case, he just mocks me and doesn’t do nothing for me.”
The trial court asked defendant if he had anything else. Defendant stated, “Sir, I don’t want this man no more on my case, sir. There’s a conflict of interest between me and him. I’m stressed out on this case that I shouldn’t have because I haven’t broken no law.”
The trial court stated that it wanted to make sure defendant’s attorney was providing adequate representation, that such an inquiry required specific issues, that defendant had identified his concerns over Mr. Limbach and the insurance angle, and asked if defendant had anything else.
Defendant stated he wanted a motion to dismiss, a motion to suppress evidence, and a motion for discovery. The trial court stated that it did not see a basis for a motion to dismiss or a motion to suppress and that discovery was done between the attorneys unless problems arose. The trial court then addressed the concern about Mr. Limbach.
The defense attorney stated all Mr. Limbach had to say was hearsay and he did not see how he could get it admitted over the likely objections of opposing counsel. The attorney also stated that he had not inquired about insurance, that he could ask about that when the witnesses were on the stand, and that he did not “know that it really makes that much difference in this particular case. It is not so much whether they made a claim on the insurance. It’s more whether he was inside or not.”
The trial court agreed with the defense attorney’s statement, found “that the attorney has done everything reasonably he should do,” and denied the Marsden motion.
On April 18, 2006, defendant requested a continuance of the trial date so he could retain private counsel in the matter. At that hearing, defendant told the trial court: “Sir, I need to get a lawyer to properly represent me sir. From the beginning the lawyer that I was appointed to, he—when I asked him when I was gonna be released for the crime that I’m here for, sir, with a mocking voice and a little smile he told me that if I’m lucky within ten years sir. Right there he already is sentencing me without ever finding me guilty, sir.” Defendant also requested the appointment of a different lawyer if his family was unable to find him a lawyer. The judge, who was unfamiliar with the case, told defendant that he would let the judge to whom the case was assigned make that decision.
On June 2, 2006, the trial court heard defendant’s request that he be allowed to represent himself. The trial court reviewed some of the dangers of self-representation and defendant replied: “But the reason why I want to do this is because I feel my life is at stake here, and I feel I don’t want my life being played with by the hands of a man that doesn’t want to represent me right, sir.”
At the hearing the trial court focused on issues related to self-representation and did not develop defendant’s concerns about getting another attorney. For example, the trial court stated: “We’ve had a lot of Marsden hearings. What we are talking about is your wanting to represent yourself. So let me go on here.” After a further description of the problems of self-representation and the potential sentence, the trial court stated: “Do this: Let me set a trial date with your lawyer and I want you to think about this. And if you honestly want to represent yourself, I’ll go ahead and have a hearing. I’m just telling you you need to have a lawyer. [¶] Do you want me to set it [for trial] with the public defender here?” Defendant answered, “Yes, sir.”
The trial court informed defendant that the maximum on the burglary count was 17 years and that he could receive an additional 16 months on the possession count, for a total term in state prison of 18 years 4 months.
On July 18, 2006, another Marsden motion was heard in chambers. Defendant stated that he wanted to see all the paperwork on this case. The defense attorney stated that he had “sent him police reports once before. He wants all of my investigation stuff, and I’m not giving up giving that to him.” The trial court asked the attorney’s reasons. The attorney stated:
“I’m concerned about fabrication. The sources of a lot of his witnesses are people in jail and the follow-up is not very consistent with what he’s told me. And I have concerns that witnesses might be changing if I’m giving him my reports of the information I found.”
The trial court then asked, “Have you had the opportunity of the two of you to talk?” The attorney responded they had. Defendant did not answer the trial court’s question concerning his opportunity to communicate with his attorney. Instead, defendant said that the cell phone supposedly stolen was never activated and “I would like to see what’s going on.”
The trial court then asked the attorney’s basis for his position. The attorney stated that he could not give out phone numbers and addresses of witnesses, which the trial court confirmed. The attorney also stated that he had kept defendant aware of all that was going on, but he was not giving defendant a copy of his paperwork. The attorney expressed a concern about witnesses fabricating a story based on what is in his paperwork.
Defendant responded by saying that he had told the attorney the names of the people he wanted to call as witnesses “and he has lied to me about what these people had said. Where he tells me that this person’s testimony is a dead-end. It ain’t going to help. How can it not help when that person is saying that this never happened?”
The trial court responded: “And in these particular cases, I understand, because we have had an awful lot of discussions about this, and I’ve asked the public defender to do an investigation. They’ve sent the investigators out and contacted people in all these situations. Okay. [¶] Is there anything else, then?”
Defendant stated: “Yes. I want what he can send me to investigate what’s being said, I would like to do something for myself[,] try to help out in proving my innocence. Because I don’t want to do no 18 years for something that never happened, that I never did.”
The trial court concluded the hearing by stating that (1) he trusted the attorney’s ethical sense and would allow him to act on those concerns and (2) the matter would be confirmed for trial.
On August 8, 2006, defendant’s attorney advised the trial court that defendant did not feel he was ready for trial, that his witnesses had not been subpoenaed, and that defendant specifically asked for a Marsden hearing.
At that hearing, defendant told the court that he had asked his attorney to subpoena two witnesses, Mr. Limbach and Mr. King. “Louis Limbach will testify of him knowing these people and knowing this other female that has something to do with this case. And he knows everything concerning this case. I don’t have a clue where these people live, and they are accusing me of first degree burglary that I did in the house. … I have asked my public defender to give me, what is it called, [the discovery] concerning my case.”
Presumably, this other female is named Missy or Misty. The efforts to locate her were discussed at the April 2006 Marsden hearing.
Defendant also stated: “The discovery. But it is where he underlines anything that he says he doesn’t want to give me, because there’s people’s names. But it is the discovery where he crosses out with ink all them names. I got the right to know what’s being said. And I got the right to have these people subpoenaed. He doesn’t want to subpoena them.” Defendant continued by saying that he wanted a Pitchess motion, a bifurcated motion and a motion to strike his strike.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
With respect to calling Mr. King as a witness, the attorney stated that the jail’s records had been checked and he had been incarcerated since October 1st, before the alleged burglary on October 26th. As a result, the attorney said Mr. King’s testimony about being at a party where an alleged victim was trying to sell jewelry that had been fraudulently submitted to the insurance company as stolen would not be relevant.
With respect to Mr. Limbach, the attorney stated that an investigator had shown Mr. Limbach pictures of the house allegedly burglarized and Mr. Limbach did not recognize the house as the place where he had “partied.”
With respect to the Pitchess motion, the attorney stated that the police officer had only been on the force for about seven months before the alleged burglary and, as a result, it is unlikely that any information would have been processed.
The court asked the attorney about crossed-out names. The attorney stated that he did not cross out names, he crossed out phone numbers and addresses. Reports regarding investigations had not been given to defendant because (1) the documents contained attorney work product information that could be picked up by law enforcement during a routine search of inmates and (2) the attorney was concerned the information would be used in witness fabrication.
After a short discussion, the Marsden hearing was ended and jury selection started.
DISCUSSION
I. Marsden Motions and Court’s Duty to Inquire
A. Standard of Review
The decision whether to grant a Marsden motion and order the substitution of appointed counsel lies within the trial court’s discretion. (People v. Smith (2003) 30 Cal.4th 581, 604.) Accordingly, an appellate court reviews the trial court’s denial of a Marsden motion using the deferential abuse of discretion standard. (People v. Jones (2003) 29 Cal.4th 1229, 1245.)
When a defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to effective assistance of counsel, denial of the motion constitutes an abuse of discretion. (People v. Hart, supra, 20 Cal.4th at p. 603.)
In addition, certain procedural irregularities constitute an abuse of discretion. For example, when a trial court’s inquiry into a defendant’s request for new counsel is inadequate or is made off the record, an abuse of discretion is shown. (People v. Marsden, supra, 2 Cal.3d at p. 126 [denial of motion without giving defendant an opportunity to make a record of reasons for requesting new counsel constituted reversible error]; People v. Hill (1983) 148 Cal.App.3d 744, 754-755 [judge’s off-the-record inquiry without defendant present left appellate record silent and resulted in Marsden error].)
B. Requirements of Marsden
1. General principles
When a defendant requests a new attorney on the ground that appointed counsel is providing inadequate representation, the trial court must permit the defendant to explain the basis of the contention and to relate specific instances of the attorney’s inadequate performance. (People v. Marsden, supra, 2 Cal.3d at p. 124.) “A defendant is entitled to relief if the record clearly shows [1] that the appointed counsel is not providing adequate representation or [2] that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Smith, supra, 30 Cal.4th at p. 604.)
2. Limitations of Marsden and right to adequate representation
A defendant’s right to a competent and adequate defense does not mean that a defendant has the right to present the defense of his or her own choosing. (People v. Cole (2004) 33 Cal.4th 1158, 1192.) Stated otherwise, a defendant does not have a right to an appointed attorney who will conduct the defense in accordance with the defendant’s wishes. (People v. Lucky (1988) 45 Cal.3d 259, 281-282.)
Instead, tactical decisions generally are made by defense counsel. (People v. Cole, supra, 33 Cal.4th at p. 1192.) A few questions, such as whether to testify, are of fundamental importance and are made by the defendant after consultation with counsel. (Ibid.) The California Supreme Court has held that disagreements over tactical decisions, in themselves, do not constitute an “irreconcilable conflict” for purposes of Marsden. (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
C. Defendant’s Claims Regarding Inadequate Inquiry
In this case, defendant contends that the trial court failed “to fully inquire into [defendant’s] various concerns and the state of the conflict that existed between [defendant] and counsel .…” In his appellant’s reply brief, defendant contends: “By failing to address [defendant’s] concerns regarding that conflict, and not inquiring further into the conflict itself, as evidenced by counsel’s reference to [defendant] as a ‘whiner,’ [citation], the trial court forced [defendant] to accept representation from an attorney with whom he could not communicate.”
Defendant’s contentions regarding the scope of the trial court’s duty to inquire are not supported by citations to cases that have acknowledged such a broad duty. Similar contentions regarding the adequacy of the trial court’s inquiry, however, have been made in other cases.
In People v. Carter (2005) 36 Cal.4th 1114, the defendant contended that “the trial court failed adequately to inquire into his conflict with trial counsel.” (Id. at p. 1199.) This contention was rejected by the California Supreme Court and, in so doing, it did not adopt any rules or guidelines regarding the extent of the inquiry that a trial court must make before determining whether an irreconcilable conflict exists. Instead, the court appeared to determine implicitly that the adequacy of the trial court’s inquiry should be considered in light of the totality of the circumstances of the case.
Accordingly, a trial court generally fulfills the procedural requirements that attach to a Marsden motion when it provides a defendant an ample opportunity to detail his or her concerns and state the ground for the motion. (People v. Valdez (2004) 32 Cal.4th 73, 95.)
In addition, defendant’s contention that the nature of the conflict was not explored in sufficient detail is belied by the record created.
A significant part of the conflict concerned whether certain witnesses should be called. Here, the appointed attorney investigated the potential witnesses and determined that they would not be helpful to the defense. This tactical decision does not amount to an irreconcilable conflict. (See People v. Bolin (1998) 18 Cal.4th 297, 334 [whether to call certain witnesses is a matter of trial tactics, unless the decision results from an unreasonable failure to investigate].) Nothing in the record suggests that defendant was not able to communicate his ideas regarding his defense and potential witnesses to his attorney. Rather, the record demonstrates that these ideas were communicated and investigated before a tactical decision was made by the attorney.
The second basis for a conflict was the personal dislike that existed between defendant and his attorney. At the December 2005 and January 2006 hearings, the trial court reasonably could have found that any personal animosity was not impairing the defense. Defense counsel related that he and defendant had had many telephone conversations and that those conversations were not always productive. The trial court reasonably could have found that the communication that existed at that point of the proceedings was adequate to assist the attorney in preparing a defense. Indeed, defendant was able to inform the attorney of potential witnesses and an investigation into those witnesses was initiated. (See People v. Barnett (1998) 17 Cal.4th 1044, 1095-1096 [attorney investigated possibilities suggested by defendant and chose not to use them].)
Furthermore, nothing in the record suggests that personal animosity came in the way of defendant communicating with the attorney. Providing copies of police reports while withholding copies of investigative reports is well within the range of tactical decisions permitted a defense attorney. (People v. Hart, supra, 20 Cal.4th at p. 604 [trial court reasonably concluded that attorney’s decision not to provide defendant police reports was a tactical decision made in defendant’s best interests].)
Defendant contends that at the April 18, 2006, hearing, the trial court should have inquired into defendant’s claim that his attorney told him he could expect to serve 10 years in prison. This contention is without merit because the April 18, 2006, hearing was not a Marsden hearing. Instead, a judge who was not familiar with the case granted a continuance so that defendant and his family could attempt to retain private counsel. Given the possibility that private counsel might be taking over the defense, the trial court was not required to conduct a Marsden inquiry at that point. Instead, the trial court correctly observed that the issue could be brought up later with the judge to whom the case had been assigned.
Furthermore, the attorney’s prediction of a 10-year prison term was consistent with the information regarding the maximum prison term provided to defendant by the trial court at the June 2, 2006, hearing. Therefore, the trial court was not obligated to inquire into the basis for the attorney’s prediction.
With respect to the July 18, 2006, hearing, defendant contends that the trial court should have inquired of both defendant and his attorney whether they were communicating. The trial court did not abuse its discretion by not asking that question. The record shows that defendant and his attorney were communicating and defendant was not happy about what he was being told concerning (1) the potential witnesses he had identified and (2) access to his attorney’s paperwork. The attorney had told the trial court that he had kept defendant aware of all that was going on, he had sent him copies of police reports, and he was not giving defendant a copy of paperwork generated by his investigations. In the context of these circumstances—circumstances that show communication was taking place—the trial court acted reasonably when it did not inquire further into the extent that the attorney and defendant were communicating.
In summary, we conclude that the trial court did not abuse its discretion by failing to inquire into particular aspects of the conflict or animosity between defendant and his attorney. The record showed the basis for their disagreements and that the attorney acted reasonably on the disputed points. Further, the trial court provided defendant with ample opportunities to explain the basis for his Marsden motions and provide details to support his claims of inadequate representation and irreconcilable conflict. Accordingly, the trial court did not commit reversible error.
II. Separate Listing of Each Assessment in Abstract
A. Facts
At the sentencing hearing on October 5, 2006, the superior court imposed certain fines, fees, and penalties. Among other things, the superior court stated: “Court security fee is ordered in the amount of $40 pursuant to 1465.8 of the Penal Code. $495 as a criminal laboratory analysis fee. And that fine is broken down in [item] nine, page eight.” Defense counsel then stated: “We’ll waive further reading of the breakdown.” The superior court replied, “I appreciate that. That will be made part of the record.”
The report and recommendation of the probation officer had been filed with the superior court on October 3, 2006. That report was marked confidential and included in the appellate record under separate seal. Item 9 of the recommendations of the probation report identifies 10 separate assessments and begins:
“The defendant be ordered to pay the amount of $495; $50 of this amount to be considered a Criminal Laboratory Analysis Fee pursuant to Section 11372.5 of the Health and Safety Code, $100 of this amount to be considered a Drug Program Fee pursuant to Section 11372.7 of the Health and Safety Code, $150 of this amount to be considered a State Penalty Assessment pursuant to Section 1464(a) of the Penal Code, $67.50 of this amount to be considered a Criminal Justice Facilities Construction Fund Penalty Assessment pursuant to Section 76101 of the Government Code, $15 of this amount to be considered a Courthouse Construction Fund Penalty Assessment pursuant to Section 76100 of the Government Code ….”
As this partial quote illustrates, the probation report did identify the statutory basis for each fine, fee, or penalty.
The October 5, 2006, minute order from the sentencing hearing states, among other things, that “Defendant shall pay $495 as ordered in the probation report.” The minute order did not provide a breakdown of the fines, fees, and penalties imposed.
The abstract of judgment was filed on October 10, 2006, using the two-page Judicial Council form CR-290 (rev. Jan. 1, 2003). One of the four entries in item 11 of the abstract of judgment states: “DEFENDANT TO PAY $495 AS ORDERED IN THE PROBATION REPORT.” The abstract of judgment did not provide a breakdown of the $495 of fines, fees, and penalties imposed.
B. Positions of the Parties
Defendant contends the holding in High, supra, 119 Cal.App.4th 1192 requires the abstract of judgment to list separately each fine and fee delineated in the probation report. Defendant argues that “the trial court must be directed to amend the abstract of judgment to reflect specification of fines, fees and assessments.”
Respondent’s brief summarizes defendant’s challenge to the abstract, as well as respondent’s position on the challenge, as follows:
“Appellant also contends that, rather than referring to a total amount of fines and fees, the abstract of judgment should have reflected the specific amount of each assessment. [Citation.] Under the authority of People v. High[, supra,] 119 Cal.App.4th 1192, 1200, respondent agrees. The abstract of judgment should be so corrected.”
C. Specificity Requirements for Fines and Fees in Abstract of Judgment
In High, the court concluded that the abstract of judgment was defective and remanded with directions to the trial court to “separately list, with the statutory basis, all fines, fees and penalties imposed on each count .…” (High, supra, 119 Cal.App.4th at p. 1201.) The court explained:
“Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] The abstract of judgment form used here, Judicial Council form CR-290 (rev. Jan. 1, 2003) provides a number of lines for ‘other’ financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, … the fee must be included in the abstract of judgment. [Citation.] ‘[A] fine is … part of the judgment which the abstract must “‘digest or summarize.’” [Citations.]’” (People v. High, supra, 119 Cal.App.4th at p. 1200.)
The court in High stated that it would “direct the trial court to correct the cited clerical errors.” (High, supra, 119 Cal.App.4th at p. 1200.) As a result, it remanded the cause with directions to “separately list, with the statutory basis, all fines, fees and penalties imposed on each count ….” (High, supra, 119 Cal.App.4th at p. 1201.)
D. Application to This Case
We agree with the parties that the abstract of judgment needs to be corrected to comply with the requirements set forth in High. An abstract of judgment that states the defendant is to pay $495 as ordered in the probation report has not separately listed, with the statutory basis, all fines, fees and penalties.
Although the probation report lists the breakdown of the fines, fees, and penalties, with the statutory basis for each, this level of detail in the probation report does not cure the defect in the abstract of judgment. We commend the trial court for its attempt to comply with High by referring to the breakdown in the probation report during the sentencing hearing and stating it would be made part of the record. Nevertheless, the requisite detail must find its way into the abstract of judgment itself. We are concerned that the probation report will not be available for reference along with the abstract of judgment. A copy of the probation report normally is forwarded to the Department of Corrections and Rehabilitation (DCR), as is the abstract of judgment, but we question whether the probation report would be freely available within the DCR during the course of its collection and disbursement of the $495. For these reasons, we will remand this matter to the trial court for correction of the abstract of judgment.
We note that defendant, other than stating “the abstract of judgment must be amended to include specification of fines and fees,” has not argued for an amendment in a particular form. It appears different types of amendments could be adopted that comply with High. For example, we are unaware of any authority that would prohibit the trial court from correcting the abstract of judgment by simply revising the reference in item 11 of Judicial Council form CR-290 to read: “Defendant to pay $495 as stated in item 9 of the recommendations of the probation report; a copy of the contents of item 9 is attached” and then attaching a copy of item 9 as a separate page to the abstract of judgment.
DISPOSITION
The cause is remanded to the trial court with directions to correct the abstract of judgment by separately listing, with the statutory basis, all fines, fees and penalties imposed. After the corrected abstract of judgment is prepared, the trial court is directed to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.