Opinion
F079819
05-28-2021
THE PEOPLE, Plaintiff and Respondent, v. AMANDA ROSALIA REED, Defendant and Appellant.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ward A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tuolumne Super. Ct. No. CRF47549)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ward A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and De Santos, J.
-ooOoo-
INTRODUCTION
Appellant and defendant Amanda Rosalia Reed pleaded guilty to several felony offenses and was referred to drug court. After successfully completing drug court, she repeatedly violated probation. While her third petition for violating probation was pending, she filed a petition to reclassify some of her felony convictions to misdemeanors under Proposition 47, and it was partially granted by the court. The court later revoked probation and sentenced her to four years, with two years in custody and two years under mandatory supervision.
In this appeal, the parties agree the matter must be remanded for the court to correct several errors that occurred at the sentencing hearing. Defendant also asserts remand is required for the court to conduct a hearing on her ability to pay the restitution fine consistent with People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We remand the matter for further appropriate proceedings.
FACTS
The following facts are from the preliminary hearing transcript.
On June 15, 2015, Deputy Leyva of the Tuolumne County Sheriff's Department responded to Money Mart to investigate a report that defendant attempted to cash a forged check.
As Deputy Leyva arrived, he contacted defendant in the parking lot as she was trying to leave. Defendant said she tried to cash a child support check.
Deputy Leyva spoke to Mariah Mathews, the branch manager at Money Mart. Mathews said defendant was a "regular" at Money Mart. She reported that defendant had been at Money Mart on May 25, 2015, and cashed check No. 1588 from JTM Enterprises for $284.50. Mathews just learned from the bank that the check bounced because the business account had been closed.
Deputy Leyva also spoke to Kimberly McGuinnes, the owner of JTM Enterprises, who said a total of six checks had been taken from her business office, she had not authorized, written, or signed the checks that had been cashed, and the signatures for her last name were misspelled. Defendant was an employee or contractor for JTM Enterprises. Ms. McGuinnes determined the checks were stolen while she was on an extended out-of-state trip, and her employees had access to the office during that time.
Ms. Mathews reported defendant cashed four checks at Money Mart from JTM Enterprises that were made out to her: No. 1588 for $284.50 on May 25, 2015; No. 1584 for $298 on June 2, 2015; No. 1586 for $150 on May 23, 2015; and No. 1587 for $185 on May 30, 2015.
Deputy Leyva arrested defendant and searched her vehicle. He found two additional checks from JTM Enterprises in the car's center console, again made out to defendant, but these had not been cashed: No. 1583 for $250, and No. 1585 for $300. He also found marijuana and a glass smoking pipe for methamphetamine.
PROCEDURAL BACKGROUND
The charges
On August 18, 2015, an information was filed in Tuolumne County Superior Court case No. CRF47549 that charged defendant with the following offenses based on the dates the checks were stolen and forged:
Count I, felony forgery relating to identity theft (Pen. Code, § 470, subd. (a), § 473, subd. (a)), count II, felony identity theft of Ms. McGuinnes (§ 530.5, subd. (a)), and count III, felony second degree commercial burglary of Money Mart (§ 459), committed on May 23, 2015;
All further statutory citations are to the Penal Code unless otherwise indicated.
Count IV, felony forgery relating to identity theft, and count V, felony identity theft, committed on May 25, 2015;
Count VI, second degree commercial burglary, committed on March 25, 2015;
Count VII, forgery relating to identity theft, and count VIII, identity theft, committed on May 30, 2015;
Count IX, second degree commercial burglary on March 30, 2015;
Count X, forgery relating to identity theft, count XI, identity theft, and count XII, second degree commercial burglary, committed on June 2, 2015;
Count XIII, misdemeanor receiving stolen property of a value exceeding $950, the six stolen checks from Ms. McGuinness, on or about and between May 1 and June 15, 2015 (§ 496, subd. (a));
Count XIV, misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)), and count XV, an infraction for possession of 28.5 grams or less of marijuana (id., § 11357, subd. (b)), on June 15, 2015. Plea proceedings
On February 22, 2016, defendant pleaded guilty to all 15 counts alleged in case No. CRF47549, for an indicated disposition of felony probation and referral to drug court.
On the same day, defendant pleaded guilty to charges in unrelated case No. CRM47540 for count I, misdemeanor possession of concentrated cannabis (Health & Saf. Code, § 11357), count II, driving with an open container, an infraction (Veh. Code, § 23222, subd. (a)), count III, possession of marijuana while driving, an infraction (id., § 23222, subd. (b)); and count IV, driving without proof of insurance (id., § 16028), committed on June 14, 2015, for the same indicated sentence.
The court advised defendant that she would be "looking at a lot of time," probably in excess of five years, if she was not accepted into drug court, if she was accepted and failed to participate, or if she failed the program. Sentencing hearing and referral to drug court
As to counts I through XII the information alleged that defendant had three prior felony convictions within the meaning of section 1203, subdivision (e)(4), that meant she was ineligible for probation. At the plea hearing on February 22, 2016, there was no plea or disposition of this allegation. Since the court subsequently placed defendant on probation, the record implies this allegation was dismissed or stricken.
On March 25, 2016, the court held the sentencing hearing. Defendant had been accepted into drug court. In case No. CRF47549, based on defendant's plea to the 15 charged counts, the court suspended imposition of sentence and placed defendant on felony probation for five years, with 90 days in county jail suspended pending successful completion of drug court. She was ordered to comply with the terms and conditions of drugs court, consistent with the terms of the negotiated disposition.
In the misdemeanor case No. CRM47540, the court placed defendant on informal probation for three years.
Fines and fees
As the hearing continued, the court asked defendant if she had any source of income. Defendant said she was on public assistance. According to the reporter's transcript, in the misdemeanor case No. CRM47540, the court imposed fines of $1,000 for count I; $352 for each of counts II and III; and $859 for count IV, for a total of $2,563. The court asked defendant if she needed time to pay, and defendant said yes. The court explained that it was going to order her to contact the office of revenue and recovery, fill out a financial statement, and the office would provide a schedule "on how much you can pay per month to discharge these fines, and they'll be payable during the period of your probation, three years."
During the sentencing hearing, the court did not orally impose any restitution fine or fees as to case No. CRF47549, based on defendant's pleas to the 15 charged counts. According to the minute order, however, the court imposed a restitution fine of $1,500 (§ 1202.4, subd. (b)), and an "additional restitution fine of $1,500[] to be assessed and suspended pending termination of Probation" pursuant to section 1202.44.
The minute order stated the court ordered defendant to pay the following fines: $1,070 for each of counts I, IV, VII, and X; $700 for each of counts XIII, XIV, and XV, "for a total of $6,380.00, including penalty assessment payable to the Office of Revenue Recovery at a rate and time to be determined by the Office of Revenue Recovery. Said fine is to be suspended pending successful completion of Drug Court." (Italics added.)
The minute order further provided for defendant to pay probation supervision services of $34.25 per month to the county and $642.50 for the presentence report, "effective thirty (30) days following release into the community on probation. Said fees shall be paid through the Office of Revenue Recovery Manager. The Revenue Recovery Manager may recommend the fee or any portion thereof be waived based upon an assessment of the probationer's current finance circumstances."
Finally, the minute order stated defendant was ordered to pay $135.50 for the criminal justice administration and administrative screening fee, again through the Office of Revenue Recovery (§ 29550, subds. (b), (c); Gov. Code, § 29550.2.) Successful completion of drug court
In 2016 and 2017, defendant complied with the terms and conditions of drug court and submitted negative drug tests.
On June 9, 2017, defendant graduated from drug court and stipulated that she would pay victim restitution to Mr. and Ms. McGuinnes of $335. The court ordered modification of the prior sentencing order in case No. CRF47549 to include victim restitution of $335 (§ 1202.45).
PROBATION VIOLATIONS
First probation violation
On December 20, 2017, defendant was arrested for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and possession of a smoking pipe (id., § 11364).
On December 21, 2017, the probation department filed an affidavit alleging that defendant violated probation based her failure to report for drug testing on October 5, 11, 12, and 16, 2017; testing positive for alcohol on October 17, 2017; and testing presumptively positive for methamphetamine and marijuana on December 20, 2017.
The affidavit stated that defendant's "fines and fees were suspended pending successful completion of Drug Court. According to the Office of Revenue Recovery the defendant paid the victim restitution in full."
On December 26, 2017, defendant admitted the probation violations. The court reinstated defendant on probation on the same terms and conditions and ordered her to serve 60 days in jail and complete 60 days of continuous alcohol monitoring. Second probation violation
On June 18, 2018, the probation department filed another affidavit alleging that defendant violated probation because on February 15, 2018, she was terminated from continuous alcohol monitoring for consuming alcohol, tampering with the device, and failing to report; she tested positive for methamphetamine and marijuana on March 2, 26, and 29, 2018, and April 12, 27, and 30, 2018; she was discharged from the Day Reporting Center Program on May 10, 2018, for failing to participate as directed; she failed to report for scheduled testing on March 3,10,11, 18, 24, and 26, 2018, and May 4 and 8, 2018; and on June 14, 2018, she was found in possession of a glass smoking pipe with white residue and burn marks, and a bag with a small amount of a substance that tested presumptively positive for methamphetamine.
At the time of her arrest for the probation violations, defendant had three misdemeanor warrants for pending matters in other cases.
On June 26, 2018, defendant admitted the probation violations. The court revoked and reinstated probation and ordered defendant to serve 120 days in jail and, immediately upon release, enroll in and successfully complete a residential treatment program. Third probation violation
On September 25, 2018, the probation department filed an affidavit alleging defendant again violated probation because she admitted to using methamphetamine and marijuana on July 13, 2018; failed to report for scheduled drug testing on August 16, 20, and 22, 2018; failed to successfully complete the Day Reporting Center Program and was discharged on August 30, 2018; failed to enroll in a residential treatment program after being discharged; failed to notify the probation officer about the termination of her employment; and failed to report to the probation officer since September 4, 2018, and her whereabouts were unknown.
DEFENDANT'S SECTION 1170.18 PETITION
On February 7, 2019, defendant filed a petition for resentencing pursuant to section 1170.18, subdivision (a), and requested that all felony convictions in counts 1 through 13 should be reclassified as misdemeanors based on the provisions of Proposition 47.
"Proposition 47, which is codified in section 1170.18, reduced the penalties for a number of offenses. Among those crimes are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new section 459.5. Shoplifting is now a misdemeanor unless the prosecution proves the value of the items stolen exceeds $950. [Citations.]" (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) "Section 1170.18 creates a process where persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing." (Ibid.)
On February 21, 2019, the district attorney filed opposition and argued defendant's convictions for identity theft and forgery were not eligible for resentencing under Proposition 47 and People v. Gonzales (2018) 6 Cal.5th 44.
Proposition 47 provides that "the sentencing reduction for forgery is not 'applicable to any person who is convicted both of forgery and of identity theft, as defined in Section 530.5.' [Citation.]" (People v. Guerrero (2020) 9 Cal.5th 244, 246.) This exception applies "only when there is a 'meaningful connection' between a defendant's forgery conviction and [her] conviction for misuse of personal identifying information [citation], commonly referred to as identity theft. [Citation.]" (Ibid.; People v. Gonzales, supra, 6 Cal.5th at p. 56.)
On February 26, 2019, the court held a hearing on defendant's petition, and agreed with the prosecutor that defendant's felony convictions for identity theft and forgery were not eligible to be reduced to misdemeanors. Defense counsel disagreed and urged the court to reclassify all of defendant's convictions.
The court granted defendant's petition to reclassify her felony convictions in counts III, VI, IX, and XII for second degree burglary to misdemeanor burglary convictions. It also reduced count XIII, receiving stolen property, to a misdemeanor, even though it had been alleged as a misdemeanor and defendant pleaded to that offense.
On May 6, 2019, the court again considered defendant's petition, and denied her request to reclassify her other felony convictions as misdemeanors because they were not eligible under Proposition 47.
On the same day, defendant admitted the probation violations in the third petition. Sentencing hearing after third probation violation
Defendant's appeal is based on the court's orders at the sentencing hearing held on July 29, 2019, for her third violation of probation. The court denied defendant's motion to be reinstated on probation because of her continued use of controlled substances and her failure to successfully complete an outpatient program.
The court imposed an aggregate term of four years to be served in county jail, based on the midterm of two years for count I, felony forgery relating to identify theft; and consecutive terms of eight months (one-third the midterm) for each of felony counts IV, VII, and X, forgery relating to identity theft. The court stated that upon defendant's completion of two years in secured custody, she would serve the remaining two years on mandatory supervision.
The court stated that "[p]ursuant to ... Section 1202.4, the previously ordered restitution fine of $1500 is being imposed, to be collected by the Tuolumne County Office of Revenue Recovery, at a rate to be determined by the Office of Revenue Recovery, pursuant to section 2085.5 ...."
The probation officer advised the court that "with the change of how much time she'll do, the new fee should be [$]1,200 now, instead of [$]1,500." The court agreed and said the amount was $1,200.
At the original sentencing hearing on March 25, 2016, the court did not orally impose any restitution fine or fees as to case No. CRF47549, based on defendant's pleas to the 15 charged counts. According to the minute order, however, the court imposed a restitution fine of $1,500 (§ 1202.4, subd. (b)), and suspended the same amount pending revocation of probation (§ 1202.44).
After the July 29, 2019, sentencing hearing, the abstract of judgment states the court imposed a restitution fine of $1,200 pursuant to section 1202.4, subdivision (b); and there is no indication whether the court lifted the suspension of the probation revocation fine imposed on March 25, 2016.
The court ordered defendant to report to the office of revenue recovery within 15 days "for an evaluation as to your financial circumstances as to make payments pursuant to Section 1203.1d ...."
The court imposed subordinate terms, and stayed those terms pursuant to section 654, for the following convictions described as felonies: the midterm of two years for count II, identity theft; the midterm of two years for count III, second degree burglary; the upper term of three years for count V, identity theft; the midterm of two years for count VI, second degree burglary; the midterm of two years for count VIII, identity theft; the midterm of two years for count IX, second degree burglary; the midterm of two years for count XI, identity theft; and the midterm of two years for count XII, second degree burglary.
As we will discuss below, the court had previously reclassified defendant's felony convictions for second degree burglary as misdemeanors, but erroneously described the offenses as misdemeanor burglaries instead of misdemeanor shoplifting offenses in violation of section 459.5.
The court imposed concurrent terms for the following convictions that it described as misdemeanors: one year for count XIII, receiving stolen property; six months for count XIV, possession of a smoking device; and one year for count XV, possession of marijuana. The minute order and abstract of judgment
In count XV, defendant pleaded guilty to violating Health and Safety Code section 11357, possession of 28.5 grams or less of marijuana, which was charged in the information as an infraction. At the time of her plea, this offense was an infraction punishable by a fine of not more than $100. (Prop. 47, § 12, eff. Nov. 5, 2014.) As we will also discuss below, defendant's conviction and the sentence imposed for count XV must be dismissed and stricken. Proposition 64 was enacted in November 2016, and "affirmatively legalized possession of not more than 28.5 grams of marijuana, by a person at least 21 years of age," subject to exceptions not applicable here. (People v. Perry (2019) 32 Cal.App.5th 885, 889-890.) --------
The minute order for the July 29, 2019, sentencing hearing, identified counts I through XII as felonies; erroneously identified counts III, VI, IX, and XII as convictions for felony second degree burglary; and count XV as an infraction, and that defendant was sentenced to a concurrent term.
The abstract of judgment, filed on July 31, 2019, also erroneously identified counts III, VI, IX, and XII as felony convictions for second degree burglary; and that erroneously stated consecutive terms were imposed for count V, identity theft, and count VI, second degree burglary.
The abstract also stated the court imposed a $1,200 restitution fine pursuant to section 1202.4, subdivision (b). The space for the section 1202.44 probation revocation fine was blank.
On August 7, 2019, defendant filed the notice of appeal.
RESENTENCING AND THE AMENDED ABSTRACT OF JUDGMENT
On August 12, 2019, the trial court convened a hearing upon being advised that the probation department realized that some of defendant's convictions had been reclassified as misdemeanors. The probation officer stated concurrent terms had been imposed for those counts and defendant's sentence would not change. The court agreed that four convictions were now misdemeanors, ordered a revised probation report, and set the matter for resentencing.
On September 9, 2019, the court convened a hearing on the amended probation report. Defense counsel reminded the court that it had reduced several of defendant's felony convictions to misdemeanors, leaving the four felonies for forgery and identity theft.
The prosecutor stated the court properly sentenced defendant for the four remaining felonies to an aggregate term of four years with mandatory supervision, "two in and two out." The prosecutor stated the required corrections would not change defendant's sentence.
Defense counsel asked the court to reconsider the sentence and allow defendant to enter the rehabilitation treatment program at the Gospel Mission facility. The prosecutor opposed the request because there had been several efforts to get defendant to participate in and complete residential treatment, "and it doesn't seem to change anything." The prosecutor said defendant needed to serve the two-year custodial term, and then the court could consider whether she could enter a residential treatment program during her period of mandatory supervision.
The court denied the defense motion because defendant had been given a "number of chances" and "plenty of opportunities," and advised that she could enter another treatment program "[o]nce she finishes her jail term." The court hoped defendant would enter the program and would be successful. The amended minute order and abstract
While the court attempted to correct the sentencing errors, the minute order for the September 9, 2019, hearing, still stated that defendant's convictions in counts III, VI, and IX were reduced to misdemeanor violations of section 459, burglary, and that count XII was a felony conviction for violating section 459.
The reporter's transcript, minute order, and abstract from the July 29, 2019, sentencing hearing stated the court had stayed the terms imposed for felony counts III, VI, IX, and XII. However, the minute order for the September 9, 2019, resentencing hearing stated that concurrent terms were imposed for misdemeanor counts III, VI, and IX, and felony count XII.
The September 9, 2019, minute order identified count XV as an infraction, and that defendant was sentenced to a concurrent term of one year; neither the court nor the parties realized that defendant's possession of less than 28.5 grams of marijuana was no longer a criminal offense. It also stated the court ordered the clerk to prepare an amended abstract to reflect it previously reduced defendant's felony burglary convictions to misdemeanors.
On September 27, 2019, the amended abstract of judgment was filed, but the instant record contains an incomplete copy of the abstract. The amended abstract again erroneously identified count XII as a conviction for second degree burglary, and that the imposed term was stayed pursuant to section 654, and that a consecutive term was imposed for count V, identity theft.
The record does not contain the page in the amended abstract that identified the convictions and sentences for counts III, VI, and IX, three felony convictions for second degree burglary that were supposed to be reduced to misdemeanor shoplifting. The amended abstract again listed a restitution fine of $1,200 pursuant to section 1202.4, subdivision (b), with a blank space for the section 1202.44 probation revocation fine. Postjudgment motions
On December 11, 2019, appellate counsel sent a letter to the trial court and requested a hearing on defendant's ability to pay the restitution fine and fees, pursuant to Dueñas and section 1237.2.
On December 31, 2019, defendant filed a motion with this court to amend the notice of appeal and obtain a certificate of probable cause from the trial court. On February 27, 2019, this court denied the motion.
On March 13, 2020, appellate counsel sent a second letter to the trial court and again requested a hearing on defendant's ability to pay.
On March 25, 2020, the trial court denied defendant's request to conduct a hearing on her ability to pay or stay the restitution fine, and found she forfeited the issue by failing to object at the sentencing hearing.
DISCUSSION
The parties agree the matter must be remanded to the trial court to correct several sentencing errors.
I. The Second Degree Burglary Convictions
The parties agree the court properly granted defendant's petition under section 1170.18 to reduce her felony convictions in counts III, VI, IX, and XII for second degree burglary to misdemeanor offenses. The parties further agree, however, that the court erroneously reduced those convictions to misdemeanor burglaries, and they should have been reduced to misdemeanor shoplifting offenses in violation of section 459.5.
As explained above, the abstract for the July 29, 2019, sentencing hearing identified counts III, VI, IX, and XII as felony convictions for second degree burglary, that the court imposed and stayed two-year terms imposed for counts III, IX, and XII, and that the court imposed a consecutive term for count VI.
The minute order for the September 9, 2019, resentencing hearing stated that defendant's convictions in counts III, VI, and IX were reduced to misdemeanor violations of section 459, and that count XII was still a felony conviction for violating section 459. It also stated that concurrent terms were imposed for misdemeanor counts III, VI, and IX, and felony count XII.
The amended abstract again erroneously identified count XII as felony second degree burglary, and that the term was stayed pursuant to section 654. The instant record does not contain the page from the amended abstract to identify the convictions or sentences for counts III, VI, and IX.
On remand, the court shall correct the record to clarify that defendant's felony convictions in counts III, VI, IX, and XII for second degree burglary were reclassified as misdemeanor convictions for shoplifting in violation of section 459.5. The court shall strike the felony sentences imposed and stayed for these four counts, impose the appropriate sentences for misdemeanor violations of section 459.5, and issue a corrected minute order and amended abstract of judgment.
II. Count XV
In count XV, defendant pleaded guilty to violating Health and Safety Code section 11357, possession of 28.5 grams or less of marijuana, which was charged in the information as an infraction. At the time of her plea, this offense was an infraction punishable by a fine of not more than $100. (Prop. 47, § 12, eff. Nov. 5, 2014.)
Proposition 64 was enacted in November 2016, and "affirmatively legalized possession of not more than 28.5 grams of marijuana, by a person at least 21 years of age," subject to exceptions not applicable here. (People v. Perry, supra, 32 Cal.App.5th at pp. 889-890.)
Nevertheless, at the July 29, 2019, sentencing hearing, the court imposed a concurrent term of one year for count XV and described it as a misdemeanor, while the minute order described it as an infraction. The court did not correct this sentence at the September 9, 2019, resentencing hearing.
The parties agree that defendant's conviction for count XV must be dismissed because section 11357, subdivision (b) has been amended to decriminalize the possession of less than 28.5 grams or less of marijuana by a person 18 years or older.
On remand, the court shall dismiss count XV and strike the concurrent term imposed and issue a corrected minute order and amended abstract of judgment.
Given this resolution, we need not address defendant's additional challenges to the validity of the conviction and sentence in count XV.
III. Count V
At the July 29, 2019, sentencing hearing, the court imposed and stayed the term for count V pursuant to section 654.
The parties agree that both the original and amended abstracts of judgment erroneously stated that a consecutive term was imposed for count V, felony identity theft (§ 530.5, subd. (a)).
On remand, the court shall issue a corrected minute order and amended abstract of judgment to show that the term imposed for felony count V was stayed pursuant to section 654.
IV. The Restitution Fine
Defendant contends the matter also must be remanded for the trial court to conduct a hearing on her ability to pay the $1,200 restitution fine consistent with Dueñas, and that she preserved appellate review by requesting the trial court to address the issue through her postjudgment motion pursuant to section 1237.2. The People contend defendant has forfeited review of this issue.
Since this case must be remanded for correction of several sentencing errors, we decline to address defendant's contentions about the restitution fine, particularly given the court's statements about the fine.
When defendant pleaded guilty to the 15 counts pursuant to the negotiated disposition for probation and referral to drug court, the court warned her that she faced a prison term of more than five years if she failed to complete drug court or violated probation. At the sentencing hearing on March 25, 2016, after defendant entered her pleas, the court imposed a restitution fine of $1,500 (§ 1202.4, subd. (b)) and an "additional restitution fine of $1,500[] to be assessed and suspended pending termination of Probation" pursuant to section 1202.44.
At the sentencing hearing on July 29, 2019, after defendant's third violation of probation, the court imposed an aggregate term of four years, with two years in custody and two years in mandatory supervision. The court stated that "[p]ursuant to ... Section 1202.4, the previously ordered restitution fine of $1500 is being imposed, to be collected by the Tuolumne County Office of Revenue Recovery, at a rate to be determined by the Office of Revenue Recovery, pursuant to section 2085.5 ...." (Italics added.) The probation officer advised the court that "with the change of how much time she'll do, the new fee should be [$]1,200 now instead of [$]1,500," and the court agreed.
Also, as set forth above, the court imposed and stayed felony sentences for the four burglary counts, even though it had already granted defendant's petition to reduce those felony convictions to misdemeanors. However, the probation officer's statement to the court about reducing the fine was not based on the reclassification of the burglary convictions to misdemeanors.
At the resentencing hearing on September 9, 2019, the court attempted to correct the record on the reclassification of the four felony convictions, but it did not strike the felony terms previously imposed or resentence defendant based on the misdemeanor offenses. Instead, the minute order erroneously stated the court imposed concurrent terms for three of the burglary convictions, and the fourth conviction was still a felony.
In addition, the amended minute order and abstract of judgment stated that the court imposed a restitution fine of $1,200 pursuant to section 1202.4, subdivision (b), and left the space blank as to the probation revocation fine.
As noted by the People, it is not clear whether the court's statements about the restitution fine at the July 29, 2019, sentencing hearing meant that it was lifting the suspension on the section 1202.44 probation revocation fine that was imposed at the March 25, 2016, sentencing hearing; whether it was reducing the restitution fine under section 1202.4, subdivision (b); or whether it intended to impose and suspend either a new probation revocation fine under section 1202.44 or a parole revocation fine under section 1202.45.
We thus decline to reach defendant's Dueñas contentions since the matter must be remanded for the court to clarify that the four felony counts of burglary were reduced to misdemeanor convictions for shoplifting, strike the felony terms previously imposed for those counts, and clarify its intent about the imposition and amount of any fines and fees. Defendant may make any appropriate motions at the hearing on remand.
DISPOSITION
The matter is remanded for the court to conduct another sentencing hearing and correct the record consistent with this opinion, address additional issues as necessary, and defendant may raise any appropriate motions on remand.
The court is directed to issue an amended abstract of judgment reflecting the modifications and corrections and forward a certified copy to all appropriate parties.
In all other respects, the judgment as modified is affirmed.