People v. Moreno CA4/1 ( 2022 )

Filed 8/15/22 P. v. Moreno CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079159
Plaintiff and Respondent,
v. (Super. Ct. No. SCN398370)
OSCAR MORENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Carlos O. Armour, Judge. Remanded with instructions.
Matthew A. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for
Plaintiff and Respondent.
Oscar Moreno pled guilty to felony child abuse, grand theft of personal
property, and unlawful possession of methamphetamine. The court stayed
imposition of sentence and placed him on probation. After Moreno later
admitted to four separate probation violations, the court sentenced him to an
upper-term prison sentence and imposed several fines, fees, and assessments,
which were stayed pending an ability to pay hearing.
Moreno contends that the criminal justice administration fee (Gov.
Code, § 29950) must be vacated, that the abstract of judgment must be
corrected to reflect the oral pronouncement of judgment, and that the matter
should be remanded for resentencing in light of Senate Bill No. 567 (Senate
Bill 567) (Stats. 2021, ch. 731, § 1.3, amending 1170, subd. (b)), which created
a presumptive mandate for a middle-term sentence. We agree with Moreno,
and we will remand the matter for resentencing in light of Senate Bill 567.
We will also direct the court to vacate the criminal justice administration fee
that remains unpaid as of July 1, 2021 and correct the abstract of judgment
to conform with the oral pronouncements.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2019, the People charged Moreno with felony child abuse
(Pen. Code,1 § 273a, subd. (a); count 1), grand theft of personal property
(§ 487, subd. (a); count 2), and possession for sale of a controlled substance
(Health & Saf. Code, § 11378; count 3).2
On April 5, 2019, at the People’s request, the trial court amended the
complaint to add misdemeanor child endangerment (§ 273a, subd. (b);
count 4) and misdemeanor unlawful possession of methamphetamine
(Health & Saf. Code, § 11377; count 5).
1 Statutory references are to the Penal Code unless otherwise specified.
2 The details of the underlying crimes are not relevant to this appeal.
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Moreno pled guilty to grand theft (count 2), misdemeanor child
endangerment (count 4), and misdemeanor unlawful possession of
methamphetamine (count 5). The court dismissed the remaining charges
pursuant to the plea agreement.
On May 2, 2019, the court stayed imposition of sentence and granted
four years of probation. It imposed a restitution fine (§ 1202.4, subd. (b)),
a court operations assessment (§ 1465.8); a conviction assessment (Govt.
Code, § 70373); and a criminal justice administrative fee (Id. at § 29550). It
ordered those fines and fees stayed pending an ability to pay hearing.
Moreno subsequently admitted he violated the terms of his probation.
The court reinstated Moreno’s probation and suspended execution of a three-
year upper-term sentence. Moreno violated probation again. The court
revoked probation and imposed the three-year upper term sentence for
count 2, along with two concurrent 180-day terms on counts 4 and 5.
The abstract of judgment includes a restitution fine of $300 (§ 1202.4,
subd. (b)), court operations assessment of $120 (§ 1465.8), a conviction
assessment of $90 (Gov. Code, § 70373), and a criminal justice administrative
fee of $154 (Gov Code., § 29550).
Moreno timely appealed.
II.
DISCUSSION
A. Abstract of Judgment
“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, citing People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) A court has
inherent power to correct an abstract of judgment to accurately reflect the
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oral pronouncement. (See Mitchell, at pp. 187-188; see also People v.
Culpepper (1994) 24 Cal.App.4th 1134, 1138-1139; People v. Donan (2004)
117 Cal.App.4th 784, 786.)
Moreno contends the abstract of judgment does not conform to the
court’s oral pronouncement that all fines and fees are stayed pending an
ability to pay hearing. The Attorney General agrees that there is a
discrepancy that must be corrected.
The Attorney General separately argues Moreno is not entitled to an
ability to pay hearing as to the section 1202.4 restitution fine because the
court was required to impose the fine in an amount not less than $300 unless
it found compelling and extraordinary reasons for not doing so, and none of
those were stated on the record.
At sentencing, the court stated that “all fines, fees and costs are stayed
pending an ability to pay hearing.” The minutes likewise reflect the court’s
statement that the fines, fees, and costs were stayed. The court never
revoked the stay, even when it revoked Moreno’s probation. It did not
permanently stay the $300 restitution fine; it merely delayed its imposition to
the time when it holds an ability to pay hearing.
The abstract of judgment does not match the oral pronouncement, and
it must be corrected.
B. Criminal Justice Administration Fee
Assembly Bill 1869 (Stats. 2020, ch. 92, § 11) (Assembly Bill 1869)
repealed the authority of the court to impose a criminal justice
administrative fee, effective July 1, 2021. It also added Government Code
section 6111, subdivision (a), which makes any unpaid balance of a court-
imposed cost under Government Code section 29550 unenforceable and
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uncollectible and requires any portion of a judgment imposing that cost to be
vacated.
Moreno argues, and the Attorney General agrees, that Assembly
Bill 1869 applies retroactively. We accept the Attorney General’s concession,
and we will order that portion of the judgment vacated.
C. Resentencing
At the time the court placed Moreno on a term of probation with
execution of sentence suspended for an upper-term sentence of three years,
the court had broad discretion to “select the term which, in the court’s
discretion, best serves the interest of justice.” (§ 1170, former subd. (b),
operative until Jan. 1, 2022.) However, during pendency of this appeal,
Senate Bill No. 567 (Senate Bill 567) amended Penal Code section 1170 to
create a presumptive mandate for a middle term that could only be overcome
by certain aggravating factors. (Stats. 2021, ch. 731, § 1.3, amending § 1170,
subd. (b).)
In supplemental briefing, Moreno argues he must be resentenced
because he did not admit the aggravating factors and, thus, the trial court
lacked the discretion to impose the upper term. The Attorney General agrees
that Senate Bill 567 applies retroactively here because Moreno’s judgment is
not final. However, the Attorney General contends that Moreno’s prior
unsatisfactory performance on probation supplies the aggravating factor that
permits the court to impose an upper term. (See Cal. Rules of Court,
rule 4.421(b)(5).) The Attorney General maintains that because Moreno
admitted his probation and waived his right to an evidentiary hearing, the
upper term sentence is valid.
It may be that the trial court would, as the Attorney General urges,
find Moreno’s previous probation performance provides an aggravating factor
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that permits imposition of an upper-term sentence. However, because there
was no middle-term presumptive sentence requirement at the time of
sentencing, we cannot know whether the trial court viewed the previous
probation performance as an aggravating factor under the current sentencing
requirements. Accordingly, we will remand the matter for resentencing so
that the court can consider its discretionary authority in light of Senate
Bill 567.
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DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing
so that the court can consider its discretionary authority in light of Senate
Bill 567. We express no opinion on how the court should exercise its
discretion. The trial court is directed to (1) vacate the portion of the
judgment imposing a criminal justice administrative fee imposed under
Government Code section 29550 that remains unpaid as of July 1, 2021; and
(2) revise the abstract of judgment to reflect its oral pronouncement that the
fines, fees, and costs are stayed pending an ability to pay hearing. The court
is also directed to prepare an amended abstract of judgment and to forward it
to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.
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