Opinion
C090001
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. EVAN BLAKE PALMER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CM043274, CM043593, 19CF01072)
The trial court imposed sentence on defendant Evan Blake Palmer based, in part, on defendant's violation of probation. Defendant now contends the original probation sentence was unauthorized and thus the sentence and fines arising from its violation should be vacated, and the abstract of judgment must be corrected. We will modify the judgment to strike the one-year sentence and probation revocation restitution fine imposed in case No. CM043593, and direct the trial court to amend and correct the abstract of judgment.
BACKGROUND
This appeal involves three separate cases over more than four years. In the first case, case No. CM043274, police arrested defendant for riding a motorcycle while intoxicated. Defendant then failed to appear for the preliminary hearing in the case, and the prosecution charged him with a failure to appear, initiating case No. CM043593. Defendant pleaded guilty to one count of driving under the influence (Veh. Code, § 23152, subd. (a)) in case No. CM043274 and one misdemeanor count of failure to appear (Pen. Code, § 1320) in case No. CM043593. The trial court suspended imposition of sentence and placed defendant on probation for five years for both cases.
Undesignated statutory references are to the Penal Code. --------
The third case, case No. 19CF01072, was initiated more than three years later after an explosion at defendant's home caused police to discover a butane honey oil lab in his garage. Defendant pleaded guilty to manufacturing butane honey oil (Health & Saf. Code, § 11379.6, subd. (a)) and child endangerment (§ 273a, subd. (a)) and the trial court found him in violation of his probation in case Nos. CM043274 and CM043593. The trial court sentenced defendant to nine years in state prison, consisting of the following: in case No. 19CF01072, seven years for manufacturing butane honey oil and 16 months for child endangerment; in case No. CM043274, a consecutive eight months; and in case No. CM043593, a concurrent one-year term. The trial court imposed various fines, fees, and assessments, including a probation revocation fine in case No. CM043593, a criminal laboratory analysis fee in case No. 19CF01072 that, with surcharges and assessments, amounted to $195, and a drug program fee in case No. 19CF01072 that, with surcharges and assessments, amounted to $585. The trial court also imposed a $5 DMV fee in case No. CM043274, but the abstract of judgment identifies a $5 DMV fee and also a $10 DMV fee. The abstract does not identify the statutory basis for the orally imposed DMV fee.
DISCUSSION
I
Defendant contends the original five-year term of probation for case No. CM043593 was unauthorized because, as a misdemeanor case, the longest term of probation the trial court could have imposed for that particular case was three years. Thus, although probation had been imposed for two cases, defendant had completed the maximum term of probation allowable for case No. CM043593 by the time case No. 19CF01072 moved forward and he should not have ultimately received, in case No. CM043593, the one-year concurrent sentence for the violation of probation or the probation revocation fine. The People agree, and so do we.
Section 1203a gives trial courts the power in misdemeanor cases to carry out the purposes of section 1203 applicable to misdemeanors, including making and enforcing the terms of probation for a period not to exceed three years; but a longer period of probation may be imposed when the maximum sentence provided by law exceeds three years. Here, defendant's conviction in case No. CM043593 was for a misdemeanor failure to appear, which does not have a prescribed sentence of more than three years. (§ 1320.) Thus, the greatest term of probation the trial court could have imposed in case No. CM043593 was three years. Defendant's probation began on December 15, 2015, and his violation of probation did not occur until February 19, 2019, more than three years after his probation began. Under the circumstances, defendant should not have been sentenced in case No. CM043593 for a violation of probation; his five-year probation in that case was unauthorized. We will modify the judgment to vacate the one-year sentence and the probation revocation fine imposed in case No. CM043593 because of the alleged probation violation.
II
Defendant also asserts there are clerical errors in the abstract of judgment. Specifically, he notes a DMV fee is listed twice in different amounts, and the abstract does not set forth the statutory basis for the DMV fee. Defendant also argues the criminal laboratory fee and drug program fee are listed twice on the abstract. The People acknowledge the clerical error regarding the DMV fee, but explain that the criminal laboratory and drug program fees are not listed twice, the second references merely provide a breakdown for each fee.
When imposing a statutory fine or fee, the trial court must "list the amount and statutory basis for each base fine and the amount and statutory basis for each penalty assessment in the abstract of judgment." (People v. Hamed (2013) 221 Cal.App.4th 928, 940.) " 'Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.' " (People v. High (2004) 119 Cal.App.4th 1192, 1200.)
The abstract of judgment does, in fact, list two separate DMV fees for defendant's conviction in case No. CM043274 -- one for $5 and one for $10 -- even though the trial court imposed a single $5 fee. In addition, the abstract does not identify the statutory basis for the fee. We will direct the trial court to correct the abstract regarding the DMV fee.
The abstract references the criminal laboratory fee in two places. The first reference, at 9(c), lists a $195 "Lab fee per HS 11372.5(a)." The second reference, at 13 ("Other orders"), provides the following breakdown: "The Court imposes a $50 criminal laboratory analysis fee (per 11372.5(a) HS), a $10 Court surcharge (per 1465.7 PC), a $25 State Court Facilities Construction Fund fee (*per 70372(a) GC), a $50 State Penalty Assessment (per 1464 PC[)], a $5 DNA Identification Fund fee (per 76104.6 GC), $20 DNA Identification fund fee (per 76104.7 GC) and $35 County Penalty Assessment (per 76000 GC) for a total of $195.00 for 19CF01072." The total amount is consistent with the trial court's oral pronouncement. Based on the statutory references on the abstract, it is evident that item 13 sets forth an itemized breakdown of surcharges and assessments for the amount in item 9(c), and is not imposing the amount a second time. No correction is required for those items.
Similarly, the abstract refers to the drug program fee twice. At 9(c), it lists a $585 "Drug Program Fee per HS 11372.7(a)." And at 13, the abstract provides a breakdown: "The Court imposes a $150 drug program fee (per 11372.7(a) HS), a $30 Court surcharge (per 1465.7 PC), a $75 State Court Facilities Construction Fund fee (*per 70372(a) GC), $150 State Penalty Assessment (per 1464 PC[)], a $15 DNA Identification Fund fee (per 76104.6 GC), $60 DNA Identification fund fee (per 76104.7 GC) and $105 County Penalty Assessment (per 76000 GC) for a total of $585.00 for 19CF01072." The total amount is consistent with the trial court's oral pronouncement. As with the criminal laboratory fee, the identified fee is only imposed once, and no correction is required.
DISPOSITION
The judgment is modified to vacate the one-year term and probation revocation fine imposed in case No. CM043593 based on an alleged violation of probation. The judgment is affirmed as modified. The trial court is directed to amend and correct the abstract of judgment to reflect the judgment as modified and to reflect the trial court's oral pronouncement of the fines, fees and assessments, including deleting the $10 DMV fee in case No. CM043274 and identifying the statutory basis for the $5 DMV fee. The trial court shall forward a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HULL, J.