From Casetext: Smarter Legal Research

People v. Ruiz

California Court of Appeals, Fifth District
Mar 17, 2008
No. F051614 (Cal. Ct. App. Mar. 17, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOE RUIZ, Defendant and Appellant. F051614 California Court of Appeal, Fifth District March 17, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Merced County. Glenn A. Ritchey, Jr., Judge, Super. Ct. No. 27767

Rudy Kraft, 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, and Julie A. Hokans, Supervising Deputy Attorney General, for Plaintiff and Respondent.

OPINION

Ardaiz, P.J.

INTRODUCTION

This case involves an appeal of a restitution fine and various other fines imposed following the rearrest of a probationer for violating the conditions of his probation. For the following reasons, we remand for resentencing.

STATEMENT OF THE CASE

On March 25, 2003, the district attorney of Merced County filed an information charging appellant Joe Ruiz with one count of transporting methamphetamine in violation of Health and Safety Code, section 11379, one count of possession of methamphetamine in violation of Health and Safety Code, section 11377, subdivision (a), one count of misdemeanor being under the influence of methamphetamine in violation of Health and Safety Code, section 11550, one count of misdemeanor possession of marijuana in violation of Health and Safety Code, section 11357, subdivision (b), and one count of misdemeanor obstruction of an officer in violation of Penal Code, section 148, subdivision (a). In addition, the information alleged that, with respect to the felonies, Ruiz had two priors within the meaning of section 667.5, subdivision (b) and one prior within the meaning of Health and Safety Code, section 11370, subdivision (c).

All further citations are to the Penal Code, unless otherwise stated.

On July 1, 2003, pursuant to a joint plea agreement involving another case, Ruiz pleaded no contest to the transportation charge (count 1) and admitted the truth of all three enhancements. In exchange, appellant would be placed in the Proposition 36 drug program.

On March 22, 2005, the trial court held an amenability hearing for Proposition 36.

On May 24, 2005, the trial court imposed and suspended the execution of a four year upper term prison sentence with an additional three years for one of the three enhancements and an additional one year each for the other two enhancements. The trial court placed Ruiz on probation on the condition that he “obey all laws, keep the Probation Department informed of [his] address at all times” and “enter and successfully complete the two-year Delancey Street substance abuse program.”

On August 1, 2006, the district attorney filed an Affidavit of Probation Violation alleging that appellant violated the terms of his probation by failing to provide the court with proof of enrollment to the Delancey Street Residential program, and by failing to complete that program.

On September 5, 2006, the trial court found that appellant was in violation of probation for both the cases that were part of the joint plea agreement. On November 2, 2006, the trial court ordered appellant committed to state prison. The court awarded appellant 198 actual days and 98 conduct days for a total of 296 days of custody credits. In addition, the court imposed a $1,800 restitution fine in the current case and an additional $200 restitution fine in the other case. The abstract of judgment did not indicate any other fines or fees.

Appellant filed a timely notice of appeal on November 7, 2006.

FACTS

A.

Underlying Offenses

On December 13, 2002, a Los Banos police officer spotted Ruiz sleeping inside a vehicle with expired registration tags. The officer woke Ruiz and obtained permission to search both his person and his vehicle. Inside the car, the officer located a white plastic bag containing a crystalline substance and black electrical tape. Based upon the possibility that this might be a concealed or controlled substance, the officer decided to handcuff Ruiz. Ruiz physically struggled with the officer but eventually complied. He denied that the items found in his vehicle belonged to him.

The officer placed Ruiz in the back seat of his vehicle where appellant fell asleep again. The officer then continued to search the vehicle and located two baggies of marijuana and a digital scale. In addition, the crystalline substance found in the plastic bag was tested and found positive for methamphetamine.

B.

Probation Violation

Merced County probation officer James Creighton Rochester testified during the evidentiary hearing on Ruiz’s probation violation that he had had contact with Mike Quaid of the Delancey Street Foundation who had faxed him a letter. That letter indicated that appellant had not enrolled into the Delancey Street program.

Ruiz testified on his own behalf. According to Ruiz, he went to enroll in the Delancey Street program on July 14, 2005, as required. He was informed that they would not allow him to leave the program to attend an August 20, 2005 court date in Santa Clara County and, therefore, he needed to get his Proposition 36 program with Santa Clara County straightened out before he could enter the Delancey Street program. He did not return to Delancey Street after that date.

On cross-examination, Ruiz acknowledged that he failed to provide proof of his enrollment in the Delancey Street program at a court hearing on June 28, 2005.

DISCUSSION

I.

Fines, Fees and Penalties Imposed During Sentencing

Appellant contends that the trial court exceeded its authority in imposing certain fines, fees and costs after appellant violated the terms of his probation because appellant’s original sentence did not include those financial penalties. We partially agree.

Upon revocation of probation, where a trial court has imposed but suspended the execution of the sentence, a trial court must impose the original sentence. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1424-1425 [holding that a trial court which imposes a suspended sentence after a probationer is rearrested on a probation violation may not also modify the suspended sentence]; see also People v. Howard (1997) 16 Cal.4th 1081, 1088 [noting that, where the court chose to impose sentence but suspended its execution pending a term of probation, “[o]n revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect [citations]”]; People v. Chambers (1998) 65 Cal.App.4th 819 [holding that a trial court does not have jurisdiction to impose a second restitution fine upon revocation of probation].)

Here, the sentence was orally pronounced on May 24, 2005. (People v. Karaman (1992) 4 Cal.4th 335, 345, fn.9 [“In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.] A judgment in a criminal case may consist of a fine, a term of imprisonment, or both [citation], and the judgment may be imposed or, in appropriate cases, suspended. [Citation.]”) The oral pronouncement of a sentence supersedes the minute order on the sentence. (People v. Mesa (1975) 14 Cal.3d 466, 471 [“Entering the judgment in the minutes being a clerical function (Pen. Code, § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error”]; People v. Zackery (2007) 147 Cal.App.4th 380, 386-390 [same].) In this case, the trial court did not orally pronounce the imposition of financial penalties when appellant was originally sentenced. Thus, the minute order and abstract of judgment must be corrected to exclude these financial penalties unless the sentence is an unauthorized sentence. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding that an appellate court can correct clerical errors in abstracts of judgment; stating that “[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citations.]”].)

An appellate court, however, cannot correct the trial court’s failure to impose a restitution fine under section 1202.4 if no objection was raised in the trial court. (People v. Tillman (2000) 22 Cal.4th 300 (Tillman).) Even if no objection was raised in the trial court, however, an appellate court can correct clerical errors that render a sentence unauthorized because the sentence excludes fines, fees, and penalties that are mandatory. (See, e.g., People v. Smith (2001) 24 Cal.4th 849 [holding that the imposition of a parole revocation fine pursuant to section 1202.45 (which first requires the imposition of a restitution fine under section 1202.4) is mandatory and may be corrected by an appellate court despite Tillman]; People v. Talibdeen (2002) 27 Cal.4th 1151 [holding that state and county penalties imposed pursuant to section 1464 (which requires another fine or financial penalty) are mandatory and may be corrected by an appellate court despite Tillman]; People v. Moreno (2003) 108 Cal.App.4th 1 [holding that a judgment that did not include victim restitution under section 1202.4, subd. (f) is an invalid judgment that can be corrected pursuant to section 1202.46, notwithstanding Tillman].) In this case, neither party objected in the trial court to the oral pronouncement of sentence which did not include financial penalties.

From the preceding discussion, we glean the following: in this case, the original sentence whose execution was suspended did not include any fines, fees, or penalties. Thus, any fine, fee or penalty cannot be imposed unless exclusion of the fine, fee or penalty renders a judgment invalid, such as where the fine, fee or penalty is mandatory. In this appeal, we will correct the abstract of judgment and minute order to exclude any discretionary financial penalties and include any mandatory penalties.

1.

Restitution Fine Under Section 1202.4

The trial court imposed a $1,800 restitution fine pursuant to section 1202.4. Under Tillman, supra, restitution fines are discretionary. (22 Cal.4th at p. 303.) Thus, this restitution fine must be stricken. We disagree with the People that People v. Young (1995) 38 Cal.App.4th 560 permits the trial court to impose the restitution fine since People v. Young applies only to victim restitution fines which may be imposed under section 1202.46. (See People v. Moreno, supra, 108 Cal.App.4th at p. 10.) Thus, we will strike the $1,800 restitution fine.

The minute order also noted that there was $740 of victim restitution fines, but did not actually impose these fines. On appeal, the People concede that these fines were not imposed and argue that this issue is moot. Moreover, there has been no application under section 1202.46 to correct this error nor has this issue been raised on appeal. Thus, we conclude that the People have forfeited the chance to impose victim restitution fines.

2.

Fines, Fees, & Costs Under Section 1203.1b

The abstract of judgment did not include these financial penalties under section 1203.1b. However, the minute order included $494.25 for a presentence report preparation costs and $680 for probation supervision costs pursuant to section 1203.1b. The language of section 1203.1b, subdivision (a) makes clear that these costs are mandatory. (See, e.g., § 1203.1b, subd. (a) (“The court shall order the defendant to appear before the probation officer … to make an inquiry into the ability of defendant to pay all or a portion of these cost.”) Here, these costs were determined and then stated in the minute order. Because the trial court must impose these costs, we do not strike these costs from the minute order. Appellant also has never objected to these costs in trial court. Thus, under Tillman, supra, 22 Cal.4th 300, we reject any challenge to these costs. However, there was no ineffective assistance of trial counsel for failure to object to these costs because there was no prejudice. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688 [holding that, in order to prevail on an ineffective assistance of counsel claim, appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to the defendant]; People v. Kelly (1992) 1 Cal.4th 495, 519-520 [same].) We note that section 1203.1b, subdivision (f) permits a defendant “[a]t any time during the pendency of the judgment rendered according to the terms of this section” to petition “the rendering court to modify or vacate its previous judgment on the grounds of a change in circumstances with regard to the defendant’s ability to pay .…” Thus, if the People seek to recover these costs from Ruiz in the future, Ruiz will have the opportunity to argue that he is unable to pay these costs.

3.

Fees Under Section 1463.07

The minute order also imposed a $25 administration screening and citation processing fee pursuant to section 1463.07. Our reading of section 1463.07 indicates that this fee and the amount are mandatory. Thus, we will not strike this fee from the minute order.

Section 1463.07 provides in pertinent part: “An administrative screening fee of twenty-five dollars ($25) shall be collected from each person arrested and released on his or her own recognizance upon conviction of any criminal offense related to the arrest other than an infraction.”

4.

Fees Under Section 1205.

The minute order also imposed a $35 payment processing fee pursuant to section 1205, subdivision (d). Our reading of section 1205, subdivision (d) indicates that this fee is mandatory and that the minimum fee is $35. Thus, we will not strike this fee from the minute order.

Section 1205, subdivision (d) provides in pertinent part: “The defendant shall pay to the clerk of the court or the collecting agency a fee for the processing of installment accounts. This fee shall equal the administrative and clerical costs, as determined by the board of supervisors, except that the fee shall not exceed thirty-five dollars ($35).”

II.

Custody Credit

Appellant initially appealed the amount of custody credit that was awarded to him. He noted that he had filed a motion to correct custody credits with the trial court on May 22, 207, but had not heard back from the trial court. In his reply brief, appellant has forfeited this argument by conceding that the trial court has adequately addressed this issue. Thus, we decline to reach this issue.

DISPOSITION

The superior court shall prepare an amended abstract of judgment, deleting imposition of a $1,800 restitution fine pursuant to section 1202.4, and shall forward a certified copy of the same to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

WE CONCUR: Levy, J., Dawson, J.


Summaries of

People v. Ruiz

California Court of Appeals, Fifth District
Mar 17, 2008
No. F051614 (Cal. Ct. App. Mar. 17, 2008)
Case details for

People v. Ruiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOE RUIZ, Defendant and Appellant.

Court:California Court of Appeals, Fifth District

Date published: Mar 17, 2008

Citations

No. F051614 (Cal. Ct. App. Mar. 17, 2008)