From Casetext: Smarter Legal Research

People v. Seeley

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 4, 2012
E053795 (Cal. Ct. App. Jan. 4, 2012)

Opinion

E053795

01-04-2012

THE PEOPLE, Plaintiff and Respondent, v. ERIC ROSS SEELEY, Defendant and Appellant.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIF1102691)


OPINION

APPEAL from the Superior Court of Riverside County. Elaine M. Johnson, Judge. Affirmed as modified.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.

In exchange for being placed on drug court probation, defendant and appellant Eric Ross Seeley pled guilty to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and admitted a prison prior (Pen. Code, § 667.5, subd. (b)). Defendant contends a drug program fee and related penalty assessments, totaling $190, were erroneously imposed. The People assert that the $190 drug program fee and related penalty assessments were not orally imposed. We modify the judgment to remove the drug program fee and related assessments and otherwise affirm.

BACKGROUND

In addition to completing a felony plea form, the parties completed a sentencing memorandum form used by the trial court for substance abuse cases. The form states, "the following checked terms and conditions are ordered by the court," and then provides boxes for probation length, custody credit, treatment programs, terms of probation, and "Fines/Fees and Restitution imposed to be paid to the Court as direct by the Enhanced Collections Division." Among the checked boxes in the Fines/Fees category is: "Pay drug education fee and penalty assessment of $190.00 per 11372.7 H&S." The form was signed by defendant, his attorney, and the prosecutor. The "it is so ordered" signature block for the trial court was not signed.

At the sentencing hearing, the trial court noted that it had read the sentencing memorandum and confirmed that defendant had reviewed "all of the checked terms of probation with your attorney through the sign language interpreter," understood them, and agreed to follow them. The trial court also stated that it needed the interpreter to sign the form as well; however, the copy included in the clerk's transcript has not been signed by the interpreter.

The trial court recited only some of the terms, including that, "within two days of your release, you must go to enhanced collections . . . to set up a payment plan for your fines and fees." Defendant's trial counsel asked "if the ability to pay fees [could] be applied to the booking and probation fee." The trial court responded, "I will suspend any booking fee. The other fees I can't do that at this time. We'll just see what happens down the line. He'll be on probation for three years, but they'll interview him about that. If it becomes an issue, add him on calendar. Presumably, he could win the lottery or something like that in the next three years and then be able to pay. I can't really suspend those at this time, but I'll suspend the booking fee."

The sentencing minute order states, "pay a drug program fee of $190.00, including fine and assessment (HS 11372.7)."

BACKGROUND

The parties correctly agree that the trial court did not orally pronounce the imposition of the drug program fee. Additionally, the trial court did not sign the sentencing memorandum indicating that it was ordering all of the provisions recited on the form. Because the drug program fee includes an ability to pay provision, it is not mandatory. (Health & Saf. Code, § 11372.7, subd. (b).) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts." (People v. High (2004) 119 Cal.App.4th 1192, 1200.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment." (Zackery, at pp. 387-388.) Because 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), we will order the correction of the sentencing minute order.

DISPOSITION

The superior court clerk is directed to correct the sentencing minute order to remove imposition of the $190 for a Health and Safety Code section 11372.7 fee and related assessments. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

KING

J.

CODRINGTON

J.


Summaries of

People v. Seeley

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 4, 2012
E053795 (Cal. Ct. App. Jan. 4, 2012)
Case details for

People v. Seeley

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIC ROSS SEELEY, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 4, 2012

Citations

E053795 (Cal. Ct. App. Jan. 4, 2012)