People v. Gill CA3 ( 2013 )

Filed 12/2/13 P. v. Gill CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
THE PEOPLE, C072537
Plaintiff and Respondent, (Super. Ct. No. 12F3697)
v.
KENDAL SCOTT GILL,
Defendant and Appellant.
After assaulting his mother, defendant Kendal Scott Gill pled no contest to assault
with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).)1
Sentenced to four years in prison, defendant appeals. Both of his contentions relate to
fines and fees. We dispense with the recitation of facts unnecessary to the disposition of
these issues.
1 Undesignated statutory references are to the Penal Code.
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I
Defendant contends, and the People agree, that the clerk’s transcript erroneously
reflects the imposition of a $200 base fine pursuant to section 672. As correctly noted by
both parties, the trial court did not orally impose this fine.
The rendition of judgment is the oral pronouncement at sentencing. (People v.
Mesa (1975) 14 Cal. 3d 466, 471.) Where there is a discrepancy between the oral
pronouncement rendering judgment and the minute order or the abstract of judgment, the
oral pronouncement controls. (Ibid.) Thus, the minute order and abstract of judgment
must be amended to reflect the trial court’s pronouncement, which did not include a
section 672 fine.2 (See People v. Zackery (2007) 147 Cal. App. 4th 380, 385.)
II
Defendant also contends the trial court improperly imposed a 10 percent ($24)
surcharge on his $240 restitution fine, pursuant to section 1202.4, subdivision (l).3 He
contends it cannot be imposed because the record does not support a finding that the
amount imposed is the actual cost incurred by the county. Defendant, however, did not
object to the imposition of the surcharge at sentencing.
Relying on People v. Pacheco (2011) 187 Cal. App. 4th 1392, defendant contends
his failure to object in the trial court did not forfeit the issue for appeal. He notes in his
2 A section 672 fine would, in any event, have been unauthorized. As noted by the
parties, section 672 provides for the imposition of a fine only in relation to crimes for
which no fine is otherwise prescribed. (§ 672.) Section 245, subdivision (a)(4) expressly
provides for a fine not exceeding $10,000 for assault by means of force likely to produce
great bodily injury.
3 Subdivision (l) of section 1202.4 provides: “At its discretion, the board of
supervisors of a county may impose a fee to cover the actual administrative cost of
collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid,
to be added to the restitution fine and included in the order of the court, the proceeds of
which shall be deposited in the general fund of the county.”
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brief, however, that the similar issue as it relates to the imposition of a booking fee was
pending before the California Supreme Court.
During the pendency of this appeal, the California Supreme Court issued its
opinion in People v. McCullough (2013) 56 Cal. 4th 589. McCullough held that the
failure to object to the imposition of a booking fee forfeits the argument on appeal that
there was no evidence of the defendant’s ability to pay such a fee, and disapproving
People v. Pacheco, supra, 187 Cal. App. 4th 1392. We discern no distinction between the
imposition of the booking fee and the restitution surcharge in this regard. Accordingly,
we conclude defendant’s claim is forfeited.
We also reject defendant’s alternative theory -- that he received ineffective
assistance of counsel because counsel did not object.
To establish ineffective assistance of counsel, defendant must show his counsel’s
performance was deficient when measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L. Ed. 2d 674]; People v.
Ledesma (1987) 43 Cal. 3d 171, 216, 218.) Defendant cannot show either.
Shasta County Board of Supervisors’ Resolution No. 2001-175, dated August 21,
2001, specifically states:
“WHEREAS, subdivision (l) of section 1202.4 of the Penal Code permits the
Board of Supervisors to impose a fee to cover the actual administrative costs of collecting
a restitution fine from criminal defendants who have been ordered to pay such a fine
pursuant to subdivision (b) of section 1202.4 of the Penal Code; and
“WHEREAS, subdivision (l) of section 1202.4 of the Penal Code provides that
said fee shall not exceed 10 percent of the amount of the restitution fine; and
“WHEREAS, the Board of Supervisors has determined that the actual
administrative costs incurred in collecting restitution fine payments from criminal
defendants is 10 percent of the amount of the restitution fine;
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“NOW, THEREFORE, BE IT RESOLVED, that a fee equal to 10 percent of the
amount of the restitution fine ordered to be paid by a criminal defendant shall be added to
cover the actual administrative costs of collecting said restitution fine.
“BE IT FURTHER RESOLVED, that the fees collected pursuant to this
Resolution shall be paid into the general fund of the county.” (Italics added.)
We grant the People’s request for judicial notice of this resolution. In light of this
resolution, counsel’s decision not to challenge the basis for the 10 percent surcharge was
reasonable and not prejudicial.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the clerk’s minutes
and prepare an amended abstract of judgment omitting reference to a section 672 fine,
and the corresponding assessments, and to forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.
BLEASE , Acting P. J.
We concur:
NICHOLSON , J.
HULL , J.
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