Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF1000098, Mark Mandio, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
Pursuant to a plea agreement, defendant and appellant Robert Joseph Ramos pled guilty to possessing a slungshot (Pen. Code, § 12020, subd. (a)(1)) and was placed on probation. Defendant contends he was rendered ineffective assistance of counsel because his trial counsel did not renew a motion to suppress after it was denied at the preliminary hearing. Defendant also challenges the imposition of several fees imposed as part of his agreement to be placed on probation. Because defendant did not obtain a certificate of probable cause, we are unable to address his contentions. Accordingly, we affirm with directions to correct a clerical error.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
Defendant’s motion to suppress (§ 1538.5) was heard concurrently with the preliminary hearing. At the hearing, a sheriff’s deputy testified that he was patrolling about 9:18 a.m. on April 19, 2010, when he observed defendant and another person walking from behind a storage facility. The deputy pulled his marked cruiser over to the side of the highway, passing defendant and the other person, and parked three to five feet in front of them. He exited his vehicle, wearing his full uniform that included weapons on his utility belt, and asked defendant, “May I speak with you, ” in a casual tone of voice. Defendant said, “Yes.” The deputy then asked if defendant was on parole or probation. Defendant stated he was on probation. The deputy then asked if he could search him for weapons. Defendant said yes and told the deputy he had a spear in his backpack. The deputy searched the backpack and found the spear, a homemade blow dart gun, and a rope with a weight attached to one end (a slungshot). The motion to suppress was denied and defendant was held to answer. The motion was not subsequently renewed.
At sentencing, defendant was placed “on probation on the terms and conditions in this sentencing memorandum.” The sentencing memorandum is a Superior Court of Riverside County form that states, “THE FOLLOWING CHECKED TERMS AND CONDITIONS ARE ORDERED BY THE COURT” and provides a checklist of items that may be ordered. In relevant part, the following boxes are checked: “FINES/FEES/RESTITUTION: Fines/Fees and Restitution imposed to be paid to the Court as directed by the Enhanced Collections Division. [¶] Pay court security fee of $30 per convicted charge per 1465.8 PC. [¶] Pay court conviction assessment fee of $30 per convicted misdemeanor/felony charge per SB1407. [¶]... [¶] Pay booking fees of $409.43 per 29550 GC. [¶]... [¶] Any fine/fee not paid in full by [the next day] will be subject to a one-time administrative fee.” Further, under “FURTHER ORDERS (not conditions of probation), ” the form states, “Pay cost of probation supervision per 1203.1b PC, in an amount and manner to be determined by Enhanced Collections, not to exceed $591.12. If level of probation supervision is modified, these costs may be increased to amount not to exceed $3,744.00. [¶]... [¶] Pay attorney fees of $119.51.” The form has a signature block, which states, “I have read and do accept these terms and conditions of probation on pages one and two.” The sentencing memorandum is signed by both defendant and his trial counsel. Defendant had reviewed the contents with his trial counsel and signed it prior to the sentencing memorandum being submitted for the trial court’s consideration and imposition of sentence.
The sentencing minute order, in relevant part, states: “Formal Probation is Granted for a period of 36 months under the following terms and conditions: [¶]... [¶] As to count(s) 1, security fee of $30.00 imposed for each convicted charge. (PC 1465.8) [¶] Pay conviction assessment fee for the following convicted count(s) 1. (GC 70373). [$30.each misd and felony] [¶] Pay booking fees of... $409.43 (GC 29550) [¶]... Any fine/fee not paid in full by [the next day] will be subject to a $50.00 administrative fee. [¶] Pay Administrative Cost Fee in amount of $50.00 as directed by Financial Services. [¶]... [¶] Pay costs of probation supervision in an amount to be determined by probation. [¶] Based on the level of supervision, the costs will range from $591.12 to $3744.00. (PC 1203.1b). [¶] Court finds defendant has the ability to reimburse the county for attorney fees in the amount of $119.51 payable to court through Enhanced Collctn [sic] [¶] Defendant Accepts Terms and conditions of probation.”
After imposing sentence, the trial court and the parties addressed additional matters concerning defendant; both defendant and his counsel interacted with the trial court. During this portion of the hearing, probation was reinstated in a misdemeanor and two infractions were dismissed. The hearing concluded with the trial court referring defendant to “Enhanced Collections” to take care of some “civil assessments” in two other cases.
DISCUSSION
Defendant’s notice of appeal “is based on the denial of a motion to suppress evidence under Penal Code section 1538.5.” Defendant’s notice of appeal does not indicate he was appealing based upon the sentence, other matters occurring after the plea, or the validity of the plea. Defendant’s notice of appeal did not request, nor did he obtain, a certificate of probable cause. Accordingly, we requested supplemental briefing to address whether we may entertain each of defendant’s contentions. We conclude that we may not reach defendant’s contentions on appeal.
“[A]n appeal taken from a conviction obtained by plea of guilty or nolo contendere is ‘operative’ without issuance of a certificate of probable cause (Pen. Code, § 1237.5) only if the notice of appeal states the appeal is based on either of two broad categories of grounds not requiring a certificate: those involving postplea proceedings and not challenging the validity of the plea, or those involving the validity of a search or seizure previously challenged under section 1538.5 (sometimes collectively referred to here as ‘noncertificate’ grounds).” (People v. Jones (1995) 10 Cal.4th 1102, 1105, fn. omitted, unrelated dicta disapproved in In re Chavez (2003) 30 Cal.4th 643, 656.) If a notice of appeal states one noncertificate ground for appeal other noncertificate issues may be raised despite not being stated in the notice of appeal. (Jones, at pp. 1112-1113.) However, without a certificate, a Court of Appeal “must decline to address certificate issues.” (People v. Mendez (1999) 19 Cal.4th 1084, 1099.)
Raising Suppression by Claiming Ineffective Assistance
Defendant contends his ineffective assistance claim is related to, and necessarily intertwined with, the suppression motion and is cognizable on appeal. The People contend defendant’s claim is not reviewable because it does not pertain to proceedings subsequent to entry of his plea and, thus, we may not address the claim on direct appeal, though as defendant has done, the issue may be addressed in a habeas corpus petition.
“Under the rule from People v. Lilienthal (1978) 22 Cal.3d 891, if a defendant wants to seek appellate review of a search and seizure issue, he or she must raise that issue before a superior court judge acting in that capacity.” (People v. Richardson (2007) 156 Cal.App.4th 574, 581.) Defendant’s motion to suppress was heard at the preliminary hearing by a judge acting as a magistrate and not as a superior court judge. Accordingly, defendant seeks to raise the issue by claiming his counsel was ineffective for failing to renew his motion after the preliminary hearing. However, such a claim requires a certificate of probable cause because the alleged ineffective assistance necessarily occurred before defendant entered his plea. (Id. at p. 596.) Accordingly, we may not address defendant’s ineffective assistance claim in this appeal; defendant did raise the issue in a petition for a writ of habeas corpus, which we will resolve in a separate order.
The Challenged Fees
Defendant contends: 1) the booking fee (Govt. Code, § 29550) and probation supervision fees (Pen. Code, § 1203.1b) were imposed without findings that he had the ability to pay them and should be stricken because they were not orally pronounced; 2) the payment of the court security fee (Pen. Code, § 1465.8) and facilities assessment (Govt. Code, § 70373) were improperly made terms of probation rather than separate orders; and 3) an “administrative cost fee” should be stricken as the amount was not recited in the sentencing memorandum/plea agreement, no statutory basis is provided for the fee, and the fee was not orally pronounced.
Although not stated in the sentencing memorandum or the sentencing minute order, the authority for this fee derives from section 1203.1b, subdivision (h). However, the trial court appears to have been unaware that section 1203.1b was amended effective January 1, 2010, to permit counties to raise the fee from $50 to $75; Riverside County raised its fee for administering installment payments to $75 effective April 1, 2010. (Riverside County Ord. No. 720.)
Following our request for supplemental briefing, defendant contends the fees and assessments are not an integral part of the plea and, thus, his challenge does not affect the validity of his plea. He also asserts that the Government Code section 70373 assessment and the administrative cost fee are not mentioned in the sentencing memorandum. The People now contend that all of the fines and fees being challenged were included in the sentencing memorandum and thus defendant agreed to them as part of his plea and may not challenge them without a certificate of probable cause.
Preliminarily, we note that all of the fees and fines that defendant challenges were included in the sentencing memorandum, which was part of defendant’s plea agreement. Thus, when defendant agreed to enter a guilty plea, he agreed that he would be ordered to pay the fees and costs discussed above in the manner specified in the sentencing memorandum. Issues relating to the validity of a plea require compliance with section 1237.5. As the Supreme Court stated: “[C]ourts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) Defendant is challenging the sentence that imposed fees and costs that he negotiated as part of the plea agreement; thus, he attacks an integral part of the plea. This attack is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5 and California Rules of Court, rule 8.304(b). (People v. Mendez (1999) 19 Cal.4th 1084, 1095-1099; Panizzon, at pp. 76, 79, 89.) In view of the foregoing, in the absence of a certificate of probable cause, we may not reach his contentions.
Between his opening brief and supplemental brief, defendant apparently forgot that the administrative fee was included in the sentencing memorandum and so was the facilities assessment (albeit by referencing “SB1407” rather than Gov. Code § 70373).
Clerical Error
We note that the trial court imposed the terms and conditions in the sentencing memorandum, and the memorandum requires payment of probation supervision based upon either an amount not to exceed $591.12 or $3,744.00 depending on the level of supervision. However, the sentencing minute order states that the amount is to be determined by probation but, “Based on the level of supervision, the costs will range from $591.12 to $3[, ]744.00.”
We have the inherent power to correct clerical errors to make records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct the correction of the sentencing minute order.
DISPOSITION
The superior court clerk is directed to correct the sentencing minute order so that the probation supervision fee order reads as follows: “Pay cost of probation supervision per 1203.1b PC, in an amount and manner to be determined by Enhanced Collections, not to exceed $591.12. If level of probation supervision is modified, these costs may be increased to an amount not to exceed $3,744.00.” In all other respects, the judgment is affirmed.
We concur: RICHLI J., KING J.