People v. Zalloum CA4/2 ( 2022 )

Filed 12/20/22 P. v. Zalloum CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078078
v. (Super.Ct.No. INF1701436)
KHALED MOHD ZALLOUM, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
Christopher Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and
Respondent.
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Khaled Mohd Zalloum was granted probation pursuant to a plea agreement. On
appeal, he challenges the fines and penalty assessments reflected in the trial court’s
minute order. Although “the erroneous imposition or calculation of fines, penalty
assessments, surcharges, fees, or costs [is] the sole issue on appeal,” we have jurisdiction
because Zalloum filed a motion for correction in the trial court. (Pen. Code, § 1237.2.)
The motion was taken off calendar without a ruling on the merits.
We agree with the People that the matter must be remanded “for the trial court to
specify the amounts and statutory basis of each fine, penalty, and assessment” in its
written orders. We otherwise reject Zalloum’s arguments and affirm.
BACKGROUND
An amended information charged Zalloum with one felony count of driving under
the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), with
enhancements alleged for having committed the offense while released on bail (Pen.
Code, § 12022.1) and for willfully refusing to submit to a chemical test (Veh. Code,
§§ 25377, subd. (a)(2) & 23578).
The parties reached a plea agreement, pursuant to which Zalloum pled guilty to a
single misdemeanor count of driving under the influence of alcohol (Veh. Code, § 23152,
subd. (a)), the remaining felony charge and enhancements were dismissed, and summary
probation was granted for 36 months with various conditions (Veh. Code, § 23600,
subd. (b)(1)).
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Zalloum’s stipulated disposition was documented in a sentencing memorandum
(local form CR002) expressly “incorporated into” a misdemeanor plea form (local form
CR005). The plea form includes the handwritten notation “$1703.00” just above the
signature lines. The sentencing memorandum sets forth the following fines and
assessments as conditions of probation: (1) a “fine and penalty assessment of $1703.00,”
(2) a restitution fine of $150 (Pen. Code, § 1202.4, subd. (b)), and (3) a probation
revocation restitution fine of $150, stayed pending completion of probation (Pen. Code,
§ 1202.44). Zalloum was also ordered to pay victim restitution in an amount to be
determined by the probation department; the restitution award is not at issue on appeal.
(The sentencing memorandum also imposed court operations and facilities assessments
(Pen. Code, § 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1)) as stand-alone
orders of the court, not as conditions of probation.) Both the sentencing memorandum
and the misdemeanor plea form were signed by Zalloum, his retained counsel, and the
prosecutor and submitted to the court for approval pursuant to section 1192.5 of the Penal
Code.
At the November 9, 2021, change-of-plea hearing, the court reviewed both pages
of the plea form with Zalloum on the record, and Zalloum affirmed that he had reviewed
each applicable item with his counsel, understood them, initialed next to each, and signed
the document. Following the plea colloquy, the court entered Zalloum’s plea of guilty.
After requesting immediate sentencing, Zalloum affirmed that he had reviewed with his
counsel, understood, and agreed to all of the terms set forth in the sentencing
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memorandum before signing the document. Thereafter, the court signed the sentencing
memorandum, stating: “I’ve signed the order approving the disposition and the terms of
probation.” The court did not mention any fines, penalties, or assessments on the record
at the hearing. The minute order from the hearing includes the same fines and
assessments as listed in the sentencing memorandum.
DISCUSSION
Zalloum argues that the trial court did not impose any fines or assessments during
“oral pronouncement of sentence,” and therefore all the financial obligations appearing in
the court’s minutes and the sentencing memorandum are the result of “clerical error” and
must be stricken to conform the court’s records to its “oral pronouncement of judgment.”
The argument is meritless because a court that suspends imposition of sentence and
grants probation need not orally itemize all of the fines, fees, and assessments imposed as
conditions of probation.
Because the trial court suspended imposition of sentence and granted summary
probation, the requirement that the court “[p]ronounce the court’s judgment and sentence,
stating the terms thereof” does not apply unless probation is revoked and terminated.
(Cal. Rules of Court, rule 4.433(c)(5); see id., rule 4.435(b)(1).) “The rendition of
judgment and the imposition of sentence take place in an entirely different legal setting
than the grant of probation.” (In re Klein (1961) 197 Cal.App.2d 58, 63.) “When the
trial court suspends imposition of sentence, no judgment is then pending against the
probationer, who is subject only to the terms and conditions of the probation. [Citations.]
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The probation order is considered to be a final judgment only for the ‘limited purpose of
taking an appeal therefrom.’ [Citation.]” (People v. Howard (1997) 16 Cal.4th 1081,
1087.) Where, as here, the court “suspends imposition of sentence, it pronounces no
judgment at all,” and its “authority to render judgment ends with the expiration of
probation.” (People v. Chavez (2018) 4 Cal.5th 771, 781, 777.) If the conditions of
probation are violated, the probation order is subject to revocation “with pronouncement
of judgment and sentence to follow.” (Stephens v. Toomey (1959) 51 Cal.2d 864, 871.)
Similarly, “‘the imposition of a fine as a condition of probation is not a judgment
imposing a fine,’” because the probation order remains subject to revocation,
modification, or change during the term of probation. (People v. Labarbera (1949) 89
Cal.App.2d 639, 643.) Consequently, the court has no duty to pronounce in detail all of
the terms and conditions of probation—including, as here, those requiring payment of
fines. (People v. Thrash (1978) 80 Cal.App.3d 898, 901-902.) A written probation order
given to the probationer may validly impose conditions that were omitted entirely from
the court’s oral pronouncement. (Ibid.; In re P.O. (2016) 246 Cal.App.4th 288, 292,
fn. 4; In re Frankie J. (1988) 198 Cal.App.3d 1149, 1154-1155; In re Pedro Q. (1989)
209 Cal.App.3d 1368, 1373.) Where there are discrepancies between a court’s oral
pronouncement granting probation and its written order, “the modern rule is not
automatic deference to the reporter’s transcript, but rather adoption of the transcript due
more credence under all the surrounding circumstances.” (People v. Rodriguez (2013)
222 Cal.App.4th 578, 586, disapproved on another ground in People v. Hall (2017) 2
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Cal.5th 494, 503, fn. 2; see People v. Harrison (2005) 35 Cal.4th 208, 226.) Courts have
recognized there may be good reason to favor the written probation order over the
reporter’s transcript, which may be “less inclusive” because detailed oral advisement is
not required. (In re D.H. (2016) 4 Cal.App.5th 722, 725.) Moreover, although oral
recitation of probation conditions is not required, providing the probationer with a written
statement of them is. (Pen. Code, §§ 1203.7, subd. (d), 1203.12, 1203.4; People v.
Municipal Court (Lozano) (1956) 145 Cal.App.2d 767, 774-776.) Indeed, this court has
previously recognized that a trial court’s written order can supplement or modify its oral
pronouncement granting probation. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1015.)
However, the amount and statutory basis for each fine, fee, and assessment must
be set forth in the trial court’s minute order and the sentencing memorandum. “[A]n
order of probation, like an abstract of judgment, must specify the statutory basis of each
fine or fee imposed.” (People v. Eddards (2008) 162 Cal.App.4th 712, 715; People v.
Fromuth (2016) 2 Cal.App.5th 91, 114-115.) We accordingly direct the trial court on
remand to prepare an amended probation order identifying the statutory bases for the
$1,703 fine and assessment. (People v. Waldie (2009) 173 Cal.App.4th 358, 368.)
Finally, Zalloum argues that “the undesignated $1,703 fine and assessment seems
excessive” and “should be stricken or reduced to the dollar amount authorized by law.”
The argument lacks merit.
The probation order here does not identify the fine and penalty assessments
included in the $1,703 amount to which Zalloum agreed, but the amount is well within
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the range authorized by statute. Zalloum is subject to a mandatory fine of $390 to $1,000
for a first violation of Vehicle Code section 23152 (Veh. Code, § 23536, subd. (a)),
payment of which must be “impose[d] as a condition of probation” (Veh. Code, § 23538,
subd. (a)(1)). He is also subject to a mandatory state penalty assessment in the same
amount as the base fine (Pen. Code, § 1464), which raises the total potential fine and
assessment to $2,000. Additional statutory penalties, surcharge, and assessments raise
the maximum amount even higher. (See Pen. Code, §§ 1465.7, subd. (a) & 1463.14,
subd. (b); Gov. Code, §§ 70372, subd. (a), 76000, subd. (a), 76000.5, subd. (a), 76104.6,
subd. (a) & 76104.7, subd. (a); Veh. Code, §§ 23645, subd. (a) & 23649, subd. (a).) The
$1,703 fine and penalty assessment that Zalloum agreed to pay therefore did not exceed
the maximum fine, with penalty assessments, authorized by statute.
DISPOSITION
The order of probation is affirmed. The trial court is directed to prepare a
corrected order of probation setting forth the statutory bases for the $1,703 fine and
assessment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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