People v. Gallon CA4/1 ( 2021 )

Filed 12/28/21 P. v. Gallon CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078357
Plaintiff and Respondent,
v. (Super. Ct. No. SCN395782)
TONI GALLON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Sim Von Kalinowski, Judge. Affirmed and remanded with directions.
Matthew A. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland,
Assistant Attorneys General, Steve Oetting and Warren J. Williams, Deputy
Attorneys General, for Plaintiff and Respondent.
Toni Gallon pleaded guilty to grand theft of personal property (Pen.
Code,1 § 487, subd. (a)), admitting she unlawfully took another person’s
1 Undesignated statutory references are to the Penal Code.
property valued at more than $950. In exchange, the People dismissed other
charges against her.
Gallon contends and the People concede that (1) the order of formal
probation must be modified because it does not reflect the court’s oral
pronouncement; and (2) she is entitled to retroactively benefit from Assembly
Bill Nos. 1869 and 1950. We affirm the judgment and remand with
directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
At Gallon’s October 2020 sentencing hearing, the trial court suspended
execution of a three-year sentence and granted Gallon three years formal
probation, ordering her to serve 180 days in custody. Defense counsel
objected to probation condition 6(n), requiring Gallon to submit to electronic
search of her devices, and conditions 14(a), and 14(b), which require her to
obtain substance abuse assessment and treatment. Counsel argued that no
nexus existed between those conditions and Gallon’s crimes. The court
agreed and struck those three conditions; however, that is not reflected in the
court’s written order.
Further, the court stated Gallon would no longer have to pay an $820
fine under section 1465.7, subdivision (a). However, it ruled she was required
to pay other fines set forth in the probation report (including a $154 criminal
justice administration fee under Government Code section 29550.1,
presentence investigation costs under section 1203.1b, and court-appointed
attorney costs under section 9878 in monthly installments of $25, beginning
six months after her release from custody. This again is not reflected in the
court’s written order, which instead states that the $820 penalty is imposed,
and that Gallon is required to pay $50 monthly fines, fees and assessments
beginning in December 2020.
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DISCUSSION
I. The Written Probation Order
We accept the People’s concession that the written order granting
formal probation should be amended to strike probation conditions 6(n), 14(a)
and 14(b) to conform to the court’s oral pronouncement. “In a criminal case,
it is the oral pronouncement of sentence that constitutes the judgment.”
(People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) “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; People v. Mesa (1975) 14 Cal.3d
466, 471 [rendition of judgment is an oral pronouncement; the record of the
oral pronouncement of the court controls over the clerk’s minute order and
abstract of judgment].) The written order should likewise be amended to
reflect that the court ordered Gallon to pay $25 monthly toward the imposed
fines, fees and assessments beginning six months after her release from local
custody.
II. Assembly Bill No. 1869
At the sentencing hearing, the trial court imposed fines, fees and
assessments “as stated in the probation report,” including a $154 criminal
justice administration fee under Government Code section 29550.1,
presentence investigation costs under Penal Code section 1203.1b, and court-
appointed attorney costs under Penal Code section 987.8. After the
sentencing hearing, the Governor signed into law Assembly Bill No. 1869,
which effective July 1, 2021, eliminated many fines, fees, and assessments
that courts imposed under a range of statutes. (Assem. Bill No. 1869 (2019-
2020 Reg. Sess.) §§ 2, 62.)
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Gallon contends that under Assembly Bill No. 1869, this court should
strike the criminal justice administration fee, the repayment of the
presentence investigation costs under section 1203.1b, and the cost of court-
appointed counsel under section 987.8.
Among other provisions, Assembly Bill No. 1869 added Government
Code section 6111, which provides that “the unpaid balance of any court-
imposed costs pursuant to [Government Code] Section 27712, subdivision (c)
or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those
sections read on June 30, 2021, is unenforceable and uncollectible and any
portion of a judgment imposing those costs shall be vacated.” (Gov. Code,
§ 6111, subd. (a).) Assembly Bill No. 1869 also added section 1465.9,
subdivision (a) to the Penal Code: “On and after July 1, 2021, the balance of
any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section
987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2,
1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021,
shall be unenforceable and uncollectible and any portion of a judgment
imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62.)
As this court held in People v. Lopez-Vinck (2021) 68 Cal.App.5th 945,
950, under the plain language of Government Code section 6111,
subdivision(a), the unpaid balance of the criminal justice administration fee
is unenforceable and uncollectible, and the portion of the judgment imposing
such costs must be vacated. (Gov. Code, § 6111, subd. (a).) We therefore
vacate any unpaid balance of the costs imposed by the court under
Government Code section 6111, subdivision (a) and Penal Code section
1465.9 as of July 1, 2021.
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III. Assembly Bill No. 1950
We accept the People’s concession that Gallon is entitled to the benefit
of Assembly Bill No. 1950, which the Governor signed into law on September
30, 2020. (Stats. 2020, ch. 328, § 2.) Assembly Bill No. 1950 amended section
1203.1 to limit felony probation terms to no longer than two years, except for
certain offenses not relevant here. (See § 1203.1, subd. (m)(1).)
The People acknowledge that this court has previously held that
Assembly Bill No. 1950 applies retroactively to cases that were not final as of
its January 1, 2021 effective date. (See People v. Sims (2021) 59 Cal.App.5th
943 [concluding that under In re Estrada (1965) 63 Cal.2d 740, Assembly Bill
No. 1950’s “limitation on the maximum duration of felony probation terms
constitutes an ameliorative change to the criminal law that applies
retroactively to cases that were not reduced to final judgment as of the new
law’s effective date”].) Under Sims, the new law applies to this case, which
was not final as of January 1, 2021.
We remand the matter to the trial court to correct the minute order
governing the length and terms of probation to reflect a two-year term of
formal probation.
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DISPOSITION
We affirm the judgment. On remand, the trial court is directed to
correct the minute order to reflect that probation conditions 6(n), 14(a) and
14(b) are stricken; Gallon is to pay her fines, fees and assessments in $25
monthly installments beginning six months after her release from local
custody; under Government Code section 6111 and Penal Code section
1465.9, any portion of money imposed that is unpaid as of July 1, 2021, is
vacated; and Gallon’s probation term is reduced to two years. The court is to
notify the San Diego County Department of Probation of these changes.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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