Opinion
H043485
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER POWERS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS140755)
Defendant Christopher Powers contends that a restitution fine and a drug program fee imposed as part of his felony sentence must be stricken because though contained in a minute order they were not orally pronounced at sentencing. He also contends the minute order should be amended to show he was not ordered to pay the cost of preparing a presentence probation report. For the reasons explained, we will strike the restitution fine and the drug program fee, but we reject defendant's contention that the minute order must expressly state the court made no order regarding probation report costs. As modified, we will affirm the judgment.
I. BACKGROUND
Defendant pleaded no contest to possession for sale of a controlled substance (Health & Saf. Code, § 11378), and was sentenced to the upper term of three years, to be served in county jail under Penal Code section 1170, subdivision (h). The court also recalled the sentence on a previous conviction for which he was serving a period of mandatory supervision, and imposed a consecutive term of eight months in county jail for that offense. During sentencing, the court did not impose any fines or fees, nor did it order defendant to pay the cost of the probation report.
The minute order issued for the sentencing proceeding reflected, in addition to the jail commitment, the imposition of several fines and fees. Among the fines and fees reflected in the minute order are a restitution fine of $900 under Penal Code section 1202.4, subdivision (b)(2), and a drug program fee and corresponding penalty assessments totaling $205 under Health and Safety Code section 11372.7, subdivision (a).
II. DISCUSSION
Defendant contends that the restitution fine and the drug program fee shown in the minute order must be stricken because neither was orally imposed by the trial court during sentencing. The Attorney General concedes defendant is correct. We accept the concession, since a minute order should accurately reflect what was orally pronounced during sentencing and any statement inconsistent with the pronouncement of judgment may be stricken as a clerical error. (People v. Rowland (1988) 206 Cal.App.3d 119, 123.)
If the restitution fine and drug program fee were mandatory components of defendant's sentence, the trial court's failure to impose them when pronouncing judgment would be a jurisdictional error rendering the sentence unauthorized. But neither is mandatory: the court has discretion not to impose a drug program fee if the defendant is unable to pay it (Health & Saf. Code, § 11372.7, subd. (b)), and has discretion not to impose a restitution fine for "compelling and extraordinary reasons." (Pen. Code, § 1202.4, subd. (c).) The trial court is not required to state its finding regarding inability to pay a drug program fee on the record, so when the record is silent on that issue we presume the court found no ability to pay and did not impose the fee for that reason. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1518.) By contrast, the extraordinary reasons for not imposing a restitution fine are required to be stated on the record—but failure by the prosecution to object to the court not stating the reasons for a discretionary sentencing choice forfeits any challenge to that sentencing choice on appeal. (People v. Tillman (2000) 22 Cal.4th 300, 303.) We will therefore strike the restitution fine and the drug program fee, and order that the abstract of judgment be corrected accordingly.
Defendant also asks that the minute order be amended to reflect that the trial court did not order him to pay the cost of preparing the presentence probation report. Penal Code section 1203.1b provides a procedure for determining a defendant's ability to pay the cost of certain probation services (including preparation of a presentence report), and for the court to order defendant to pay those costs upon a determination of ability to pay. During defendant's sentencing, the trial court made no order regarding payment of the cost of the presentence report, so the minute order is appropriately silent on that issue. It is not the function of a minute order to memorialize actions the court did not take. Defendant points out that the probation report recommends that he be ordered to pay for the costs of its preparation, but a probation report is not an order of the court. The recommendations in a probation report can become the court's order if the court adopts them by stating them on the record or incorporating them by reference. (People v. Thrash (1978) 80 Cal.App.3d 898, 900.) The trial court did not do so here. The minute order accurately reflects the oral pronouncement of judgment insofar as it does not affirmatively reference an order that defendant pay the cost of the probation report.
III. DISPOSITION
The judgment is modified to strike the $900 restitution fine imposed under Penal Code section 1202.4, subdivision (b) and the $205 drug program fee imposed under Health and Safety Code section 11372.7, subdivision (a). The clerk of the Superior Court is ordered to amend the abstract of judgment to delete those amounts. As modified, the judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Rushing, P. J. /s/_________
Premo, J.