P. v. Wilcoxson CA1/1 ( 2013 )

Filed 7/9/13 P. v. Wilcoxson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A134801
v. (Lake County
SAHRA ARLINE WILCOXSON, Super. Ct. Nos. CR921179, CR923713,
CR926806, CR928053)
Defendant and Appellant.
Defendant Sahra Arline Wilcoxson contends the sentencing court failed to state
valid statutory bases for all fines and penalty assessments imposed in connection with her
guilty and no-contest pleas in four cases. She seeks remand for the court to specify the
statutory bases for the fines and penalties imposed, and enter a final minute order
reflecting its oral judgment. We correct the sentencing minute order in two respects, but
find no basis to remand the case for further sentencing proceedings.
I. BACKGROUND
Defendant pleaded guilty or no contest in the four cases summarized below. The
underlying facts are drawn from the probation officer‟s reports.
A. Case No. CR921179
On January 5, 2010, a sheriff‟s deputy, who recognized defendant, stopped her
for driving on a suspended California driver‟s license. The deputy found
methamphetamine in defendant‟s possession during a search of her vehicle. She was
arrested for driving under the influence.
On February 5, 2010, defendant pleaded guilty to possession of methamphetamine
while on bail (Health & Saf. Code, § 11377, subd. (a)), driving while under the influence
(Veh. Code, § 23152, subd. (a)), and driving on a suspended license with prior
convictions (Veh. Code, § 14601.1). On March 12, 2010, the trial court granted
defendant probation.
B. Case No. CR923713
On October 29, 2010, during a search following a vehicle stop, police found three
plastic bags containing methamphetamine in defendant‟s possession.
On November 8, 2011, defendant pleaded no contest to possession of
methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
C. Case No. CR926806
On June 7, 2011, while on searchable probation, defendant was found in
possession of a plastic bag of methamphetamine and a glass smoking pipe.
On November 8, 2011, defendant pleaded no contest to an additional count of
possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
D. Case No. CR928053
On October 21, 2011, defendant was arrested and taken to the county jail. When
warned that it was a felony to bring any controlled substances into the jail, defendant
stated that she did not have any illegal items on her person. During a search at the jail,
3.5 grams of methamphetamine were found in defendant‟s underwear. This offense was
committed while defendant was on bail in three other cases.
On November 8, 2011, defendant pleaded guilty to bringing a controlled substance
and paraphernalia into a place where prisoners or inmates are located (Pen. Code, § 4573)
and admitted one on-bail enhancement allegation (Pen. Code, § 12022.1). The guilty
plea also constituted an admission to violation of probation in case No. CR921179.
E. Sentencing
On December 20, 2011, the trial court sentenced defendant in each of the above
cases to a total combined term of eight years. This was agreed to be an eight-year split
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sentence with four years in custody and four years‟ mandatory supervision. Defendant
filed a timely notice of appeal, and was granted a certificate of probable cause.
The court imposed fees and fines as follows: In case No. CR921179, the court
imposed a new $600 restitution fine (Pen. Code, § 1202.4, subd. (b)), and a $600
previously stayed restitution fine (Pen. Code, § 1202.44). In each of the other three
cases, a $200 restitution fine was imposed. (Pen. Code, § 1202.4, subd. (b).) A court
security fee of $90 and a criminal conviction assessment of $90 were imposed in case
No. CR921179 ($30 per count), and court security fees of $40, and criminal conviction
assessments of $30 were imposed in each of the other three cases. Lab fees and drug
program fees, with penalty assessments, were imposed in cases Nos. CR921179,
CR926806, and CR923713.
II. DISCUSSION
A. Contentions
Defendant contends the sentencing court failed to state valid statutory bases for all
fees, fines, and penalty assessments imposed. She seeks remand for the court to identify
the statutory bases for all financial impositions, and to prepare a final minute order
reflecting its oral judgment.
Defendant asserts no statutory bases were stated for (1) $450 in penalty
assessments imposed in cases Nos. CR923713 and CR926806, on top of the $150 drug
program fee authorized by Health and Safety Code section 11372.7; (2) $150 in penalty
assessments imposed in cases Nos. CR923713 and CR926806, in addition to the $50 lab
fee; (3) a $420 penalty assessment imposed in case No. CR921179, on top of the $150
drug program fee; and (4) a $140 penalty assessment imposed in case No. CR921179, on
top of the $50 lab fee.1 Defendant does not contend imposition of these penalty
assessments or their amounts were unauthorized by law.
1
The minute order for December 20, 2011 incorrectly shows a lab fee and
penalties imposed in case No. CR921179, totaling $200. The court‟s oral pronouncement
of sentence imposed a lab fee of $50 and penalty assessments of $140 on that amount for
a total of $190. The oral pronouncement of sentence is controlling. (See People v.
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In addition, defendant complains the court failed to state the statutory bases for a
$600 fine and penalty assessment of $1,680 originally imposed in case No. CR921179
and reimposed when she admitted a probation violation in that case on December 20,
2011 by her guilty plea in case No. CR928053. The clerk‟s minutes reference Penal
Code section 1202.5 for these impositions, but this statute applies only to specified
robbery, burglary, and theft crimes. As the People concede, the improper reference to
section 1202.5 should be stricken from the clerk‟s minutes of December 20, 2011.
However, defendant does not maintain the fine and penalty assessment were unauthorized
by law.
B. Drug Program and Lab Fee Penalty Assessments
At sentencing, the court cited Health and Safety Code sections 11372.5 and
11372.7, respectively, in imposing the $50 lab fee and $150 drug program fee in each
case. In addition it specified in each case the aggregate amount of the penalty
assessments to be added to each fee and the combined total of the fee and penalty
assessments. The court did not explain how the aggregate amount of the assessments had
been determined in each instance or cite the statutes that authorized the imposition of
penalties. Such an itemization at sentencing would have been quite time consuming. The
six penalty assessments imposed in this case each derive from the combined effect of
seven state statutes that directly impose or authorize counties to impose penalties
earmarked for a variety of criminal justice-related purposes and funds. (See People v.
Voit (2011) 200 Cal.App.4th 1353, 1373–1374 (Voit).)2
Zackery (2007) 147 Cal.App.4th 380, 385.) We shall order the minute order corrected to
conform to it.
2
The assessments are based on the following statutes: Penal Code section 1464,
subdivision (a)(1) (imposing a $10 assessment per $10 of “every fine, penalty, or
forfeiture imposed and collected by the courts for all criminal offenses,” with specified
exceptions); Penal Code section 1465.7, subdivision (a) (20 percent state surcharge on the
same base fine used to calculate the penalty assessed under § 1464); Government Code
section 70372 (court construction penalty of $5 for $10 of base fine); Government Code
section 76000, subdivisions (a), (e) (county penalty of $7 for every $10 of base fine, as
applicable in Lake County); Government Code section 76000.5, subdivision (a)(1)
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Because these seven statutes all apply on a statewide or countywide basis, the
same assessments would be made in every case in which a lab or drug program fee is
imposed in Lake County, as long as the statutes or county ordinances authorized by them
do not change.3 In our view, it would be impractical and unnecessary in these
circumstances for a trial court to be required to separately itemize the dollar amounts of
each of the seven applicable penalty assessments, and identify each of the authorizing
statutes, every time a sentence triggering them is pronounced. In this case, that would
have required the trial court to orally recite some 42 separate penalty assessments
imposed in the three cases in which lab and drug fees were imposed. Because the same
seven penalty assessment statutes apply countywide, defense counsel can readily
determine from their aggregate amount whether the probation department has made an
error in calculating them. Making the court go through the lengthy process of reciting the
amount and statutory basis for each separate assessment is completely unnecessary as a
matter of due process, and would be entirely counterproductive. The sheer volume of
dollar amounts and statutes to be read off at sentencing would make it more difficult, not
less difficult for counsel to notice errors, and would amplify the likelihood of error
caused by the simple misreading of numbers.
The case law has recognized this is not necessary. (See Voit, supra,
200 Cal.App.4th at p. 1373 [“We conclude that the trial court adequately pronounced
judgment by imposing a specific fine and generally referring to the applicable penalty
(county emergency medical fund, assessing $2 for every $10 of base fine if the county
adopts a conforming ordinance); Government Code section 76104.6, subdivision (a)(1)
(Proposition 69 penalty of $1 for every $10 of base fine); Government Code former
section 76104.7, subdivision (a) (DNA fund penalty $3 for every $10 of base fine, raised
to $4 in 2012).
3
The penalties assessed on top of the $50 lab fee and $150 drug program fees for
defendant‟s first offense in case No. CR921179 were $10 and $30 lower, respectively,
because the assessment rate under one of the applicable penalty statutes, Government
Code section 76104.7, was raised from $1 per $10 in fines, penalties, and forfeitures to
$3 per $10 after that offense was committed. (Stats. 2009–2010, 8th Ex. Sess., ch. 3, § 1,
p. 283; see Voit, supra, 200 Cal.App.4th at p. 1374 [penalty assessments may not be
imposed retroactively for offenses committed before their effective date].)
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assessments”]; see also People v. Sharret (2011) 191 Cal.App.4th 859, 864 [approving
pronouncement of a laboratory fee and drug program fee “ „plus penalty assessment‟ ”].)
People v. High (2004) 119 Cal.App.4th 1192, cited by defendant, is distinguishable in
that the trial court in that case did not separately state the amounts of the underlying fee
and penalty assessments but provided only a total sum for the “ „fee, together with
surcharges and penalties.‟ ” (Id. at p. 1200.) While it might have been better practice for
the minute order in this case to identify the penalty statutes applied, the trial court was
not required to itemize those amounts and no purpose would be served by remanding for
entry of a new minute order when there is no mystery or dispute about whether the
penalties were authorized by law. (See Sharrett, at p. 864; People v. Eddards (2008)
162 Cal.App.4th 712, 718.)
C. Fine and Penalty Assessment in Case No. CR921179
The probation officer‟s report in case No. CR921179 recommended that defendant
be required to pay a fine of $600, plus a penalty assessment of $1,680, in installments to
be established by the probation officer. By order of March 12, 2010, the court placed
defendant on probation in that case and made the payment of these amounts a term of her
probation. No appeal was taken in connection with that order. In connection with the
four cases consolidated for sentencing, the probation department noted in its report
defendant had done poorly in her probation in case No. CR921179 and had paid none of
the required fines and fees. A supplemental report recommended defendant pay the
previously ordered fine of $600, plus a penalty assessment of $1,680. The court
reimposed that fine and assessment when she was sentenced in the consolidated cases on
December 20, 2011.
The trial court‟s March 12, 2010 order was an appealable final judgment. (Pen.
Code, § 1237, subd. (a).) No appeal was taken from that order and the time to appeal it
has lapsed. Defendant‟s challenge to the trial court‟s failure to identify a statutory basis
for the fine and penalty assessment is therefore not cognizable on this appeal. (See
People v. Silva (1966) 241 Cal.App.2d 80, 82–83.) We reject defendant‟s claim that
reimposition of the fine and penalty in the 2011 proceedings must be considered a new
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judgment that starts a new time clock for taking an appeal. “[T]o „reimpose‟ a restitution
fine is not to impose a new, prohibited second fine. Rather, to reimpose the fine is to
confirm or acknowledge the same fine that previously had been imposed upon
conviction.” (People v. Cropsey (2010) 184 Cal.App.4th 961, 965.)
III. DISPOSITION
The December 20, 2011 minute order entries for case No. CR921179 shall be
corrected to (1) strike “per PC 1202.5” and (2) strike “Lab Fee of: $200.00 is imposed
per HS11372.5” and substitute “Lab fee of $190 is imposed per Health and Safety Code
section 11372.5, including penalty assessments.” In all other respects, the judgment is
affirmed.
_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
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