People v. Harrison CA5

Filed 2/17/22 P. v. Harrison CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081131
Plaintiff and Respondent,
(Madera Super. Ct.
v. No. MCR062960)
MELVIN DEMONTE HARRISON,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, and Clara Levers, Deputy Attorney General, for
Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Meehan, J. and De Santos, J.
INTRODUCTION
Appellant and defendant Melvin Demonte Harrison entered pleas and admissions
in several cases, repeatedly violated probation and the terms of his Post-Release
Community Supervision (PRCS) and was sentenced to custodial time. On appeal, his
appellate counsel filed a brief that summarized the facts with citations to the record,
raised no issues, and asked this court to independently review the record. (People v.
Wende (1979) 25 Cal.3d 436.) We ordered the parties to file briefs on the validity of the
court’s imposition of fines and fees in light of subsequently enacted legislation. As
explained below, we remand the matter for the limited purpose of addressing certain fines
and fees and otherwise affirm.
PROCEDURAL BACKGROUND
On October 2, 2017, defendant was convicted in case No. MCR056890, of
violating Penal Code1 section 71, threatening a public officer or school employee, and
sentenced to the mitigated term of 32 months in prison. On March 10, 2019, defendant
was released from custody and placed on PRCS.
First Petition for Revocation
On May 23, 2019, a petition was filed in a new case No. MCR062960, that alleged
defendant violated the terms of his PRCS status in case No. MCR056890, because he
failed to obey all laws by violating section 415, fighting; section 243, subdivision (b),
battery against a peace officer; and section 148, subdivision (a)(1), resisting an officer, on
May 21, 2019. On the same day, his PCRS status was revoked.
On May 28, 2019, defendant admitted the PRCS violation alleged in the petition
filed in case No. MCR062960. The court revoked and then reinstated him on PRCS for
three years, as of January 24, 2017, and ordered him to serve 120 days in jail.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
In a new case No. MCR062972, defendant pleaded guilty to two misdemeanor
charges: count 1, violation of section 148, subdivision (a)(1), obstructing or resisting an
officer; and count 2, violation of section 415, fighting. The court placed him on
probation for three years. In case No. MCR054784, defendant admitted violating
probation. The court revoked and reinstated probation.
Second Petition for Revocation
On August 15, 2019, another petition was filed in case No. MCR062960-A,
alleging defendant again violated the terms of his PRCS status in case No. MCR056890,
based on violations of section 273.6, subdivision (a), disobeying a court order, and
section 242, battery, on August 13, 2019. On the same day, the court summarily revoked
his PRCS status.
On August 19, 2019, defendant requested a hearing pursuant to People v. Marsden
(1970) 2 Cal.3d 118 to discharge his appointed counsel. The court heard and denied the
Marsden motion. Thereafter, defendant admitted the PRCS violation. The court
reinstated defendant on PRCS and sentenced him to serve an additional 180 days in jail.
Third Petition for Revocation
On October 7, 2019, a third petition was filed in case No. MCR062960-B, that
alleged defendant again violated the terms of PRCS by violating section 496,
subdivision (d), attempted receipt of stolen property; section 594, subdivision (b)(1),
vandalism in an amount exceeding $400; and section 148.9, subdivision (a), giving a
false identification to a peace officer; and also violating the following provisions of the
Vehicle Code: sections 10851, subdivision (a), unlawfully taking or driving a vehicle;
section 2002, subdivision (a), hit and run causing property damage; and section 12500,
subdivision (a), driving without a license; with the offenses occurring on or about
September 25, and October 3, 2019. The court summarily revoked defendant’s PRCS
status.
3.
On October 25, 2019, defendant entered open pleas to several cases. First, he
admitted the PRCS violation. Defendant next pleaded guilty to a misdemeanor violation
of section 594, subdivision (a), vandalism, in case No. MCR064738. Defendant also
admitted violating probation in cases Nos. MCR062972 and MCR054784.
The court suspended the prior PRCS order and referred all the cases to the
probation department. Defense counsel claimed defendant entered his pleas and
admissions based on the probation officer’s representations that he would receive
concurrent terms for all offenses. The prosecutor objected and argued that each case
involved separate crimes, and concurrent terms were inappropriate. The court asked the
probation officer about the alleged recommendation. The probation officer replied that
the sentence would be up to the court. The court set the matter for a sentencing hearing.
SENTENCING HEARING
On December 2, 2019, the court convened the sentencing hearing for all of
defendant’s cases. Defense counsel objected to the probation report’s recommendation
for consecutive sentences but conceded that defendant entered open pleas; concurrent
terms were not a condition of defendant’s admissions and pleas; and instead represented
his “pretty strong hope and expectation.” The prosecutor replied defendant entered open
pleas and admissions, there was no promises about concurrent terms, and each case
resulted from separate criminal activity.
Defense counsel stated that defendant wanted to make a Marsden motion, and
defendant said he wanted to withdraw his pleas. The court conducted an in camera
hearing on the Marsden motion and denied it. After the denial of the Marsden motion,
defense counsel moved to withdraw defendant’s pleas and admissions pursuant to section
1018, based on his “reasonable reliance” on the probation officer’s alleged statement that
he would likely receive concurrent sentences. The court denied the motion to withdraw
because there was no evidence of any promise between the court, defendant, and/or
prosecutor to impose concurrent terms. Defendant had “a repetitive pattern of criminal
4.
activity dating back to his original conviction of robbery in 2013 with multiple violations
of probation and his first adult conviction in 2014, and, since that time, his criminal
activity has escalated. The defendant has shown that he is a danger not only to himself,
but also to the community, as he continues to engage in criminal activity.”
The court found that defendant pleaded guilty to a misdemeanor violation of
section 594, subdivision (a), admitted his third violation of PRCS status in one case, and
admitted violations of bench probation in two other cases. “So the defendant’s criminal
history indicates numerous felony and misdemeanor convictions and numerous grants of
probation, two prior prison commitments, and sustained violations of probation and Post-
Release Community Supervision.”
Case No. MCR064738
In case No. MCR064738, the court denied probation and sentenced defendant to
364 days in jail for his violation of section 594, subdivision (a). The court imposed
certain fines and fees, including a misdemeanor presentence report fee of $375 (§ 1203.1,
subd. (b)), and a booking fee of $108.19 payable to the City of Madera (Gov. Code,
§ 29550.2).
Case No. MCR062960-B
In case No. MCR062960-B, the court revoked and reinstated defendant’s PRCS
status, with 121 days in jail and credit for time served, to be served consecutively to the
term imposed in case No. MCR064738.
Probation Cases
In case No. MCR062972, the court revoked probation and sentenced defendant to
364 days in jail for count 1, violation of section 148, subdivision (a)(1); and a term of
90 days for count 2, violation of section 415, with both terms to be served consecutively
to the sentence imposed in case No. MCR062960, plus certain fines and fees.
In case No. MCR054784, the court found the underlying offense was a
misdemeanor violation of Vehicle Code section 10851, subdivision (a). It revoked
5.
probation and sentenced defendant to 364 days in jail for count 1, violation of Vehicle
Code section 10851, subdivision (a), served consecutively to the term in case
No. MCR062972, plus certain fines and fees.
Motion to Reconsider
On January 15, 2020, defendant filed a motion for the trial court to reconsider the
imposition of consecutive sentences and again argued he should have received concurrent
terms. On February 21, 2020, the court denied defendant’s motion for lack of good
cause, and found consecutive terms were appropriate because “we have the underlying
conduct and then we have his violation conduct. So it’s not all the same conduct. He has
violated probation in each [of] these matters, and it deserves some judgment in that
regard.”
Appellate Briefing
On May 8, 2020, defendant filed a notice of appeal. As noted above, defendant’s
counsel filed a Wende brief with this court.
During the pendency of this appeal, the Legislature enacted Assembly Bill
No. 1869 (2019-2020 Reg. Sess.), which eliminates certain administrative fees in
criminal cases and renders the unpaid balance of any such fees unenforceable and
uncollectable.
On December 13, 2021, this court ordered the parties to file supplemental briefs to
address whether the matter must be remanded for the superior court to determine whether
any of the fines and fees imposed at the December 2, 2019, sentencing hearing are
subject to the statutes enacted by Assembly Bill No. 1869 (2019-2020 Reg. Session).2
2 Even though appellant filed a Wende brief that did not raise any issues, this
court’s consideration of the impact of statutes enacted by Assembly Bill No. 1869 does
not run afoul of section 1237.2, which states: “An appeal may not be taken by the
defendant from a judgment of conviction on the ground of an error in the imposition or
calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant
first presents the claim in the trial court at the time of sentencing, or if the error is not
6.
The parties agree the statutes enacted and amended by Assembly Bill No. 1869 are
applicable to two fees imposed in this case: the $375 misdemeanor presentence report
fee of $375 (§ 1203.1b), and a booking fee of $108.19 payable to the City of Madera
(Gov. Code, § 29550.2).
DISCUSSION
I. Assembly Bill No. 1869
In 2020, Assembly Bill No. 1869 was enacted, became effective July 1, 2021, and
“eliminate[d] the range of administrative fees that agencies and courts are authorized to
impose to fund elements of the criminal legal system and … eliminate[d] all outstanding
debt incurred as a result of the imposition of [identified] administrative fees.’ [Citation.]”
(People v. Greeley (2021) 70 Cal.App.5th 609, 625 (Greeley).) Assembly Bill No. 1869
enacted and amended statutes that apply retroactively to certain fines and fees imposed in
cases that were pending on appeal when the legislation became effective. (Clark, supra,
67 Cal.App.5th at p. 252.)
As applicable to this case, Assembly Bill No. 1869 amended the Penal Code by
adding section 1465.9, which states in relevant part: “On and after July 1, 2021, the
balance of any court-imposed costs pursuant to Section … 1203.1b, as [that section] read
on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment
discovered until after sentencing, the defendant first makes a motion for correction in the
trial court, which may be made informally in writing. The trial court retains jurisdiction
after a notice of appeal has been filed to correct any error in the imposition or calculation
of fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for
correction. This section only applies in cases where the erroneous imposition or
calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on
appeal.”
The possible vacatur of certain fees as a result of the statutes enacted by Assembly
Bill No. 1869 involves a change of law that eliminated the legal basis for those fees and
does not involve the erroneous imposition or calculation of a fine or fee. As a result, the
issues addressed in this appeal do not fall within section 1237.2, since the fees were
statutorily authorized when they were imposed at the sentencing hearing. (People v.
Clark (2021) 67 Cal.App.5th 248, 257 (Clark).)
7.
imposing th[at] cost[] shall be vacated.” (§ 1465.9, subd. (a); Clark, supra, 67
Cal.App.5th at p. 259; Greeley, supra, 70 Cal.App.5th at p. 625.)
Assembly Bill No. 1869 also added Government Code section 6111, that similarly
became effective on July 1, 2021, and states in relevant part that “the unpaid balance of
any court-imposed costs pursuant to … [Government Code section] 29550.2 … as [that]
section[] read on June 30, 2021, is unenforceable and uncollectible and any portion of a
judgment imposing th[at] cost[ ] shall be vacated.” (Gov. Code, § 6111, subd. (a); People
v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 950 (Lopez-Vinck); Greeley, supra, 70
Cal.App.5th at pp. 625–626.)
At the sentencing hearing in this case, the court ordered defendant to pay a
misdemeanor presentence report fee of $375 (§ 1203.1b), and a booking fee of $108.19
payable to the City of Madera (Gov. Code, § 29550.2). “[T]he plain language” of both
section 1465.9 and Government Code section 6111 means that any balances remaining on
defendant’s account for these two fees, “that is, any amounts imposed but not paid,” are
“ ‘unenforceable and uncollectable.’ ” (Clark, supra, 67 Cal.App.5th at p. 259.)
Defendant may no longer be charged such fees, and to the extent he has already been
charged with them, “any fees not yet paid are no longer collectible.” (Ibid.; Greeley,
supra, 70 Cal.App.5th at p. 626.)
“In addition to making any unpaid portion of the identified assessments void by
operation of law, … the plain language of Government Code section 6111 and …
section 1465.9 not only authorizes, but mandates, vacation of a portion of a judgment for
the purpose of striking the now-unauthorized assessments …. Thus, although the unpaid
balance of the identified fees is no longer enforceable and collectible, the statute also
mandates that any portion of a judgment imposing those fees be vacated.” (Greeley,
supra, 70 Cal.App.5th at pp. 626–627, fn. omitted; Clark, supra, 67 Cal.App.5th at
p. 259.)
8.
The parties agree that the statutes enacted by Assembly Bill No. 1869 apply to two
fees imposed at the sentencing hearing and the balance of the misdemeanor presentence
fee of $375, imposed pursuant to former section 1203.1b, and the booking fee of $108.19,
imposed pursuant to former Government Code section 29550.2, are unenforceable and
uncollectable, and the portion of the judgment imposing those costs must be vacated.
Finally, to the extent that defendant paid any portion of the two fines at issue prior
to July 1, 2021, he is not entitled to the return of such amounts because the changes made
by Assembly Bill No. 1869 do not apply retroactively to payments made prior to the
effective date of the new statutes. Defendant is not entitled to the repayment of any
portion of the presentence report fee and booking fee that he paid before July 1, 2021.
(Lopez-Vinck, supra, 68 Cal.App.5th at p. 953.)
II. Assembly Bill No. 177
At the sentencing hearing, the court imposed a misdemeanor restitution fine of
$150 pursuant to section 1202.4, subdivision (b) in case No. MCR064738, “plus a ten
percent administrative fee.” The court imposed the same restitution fines plus
administrative fees in cases Nos. MCR062972 and MCR054784, “as previously
imposed.”
At the time of the sentencing hearing, section 1202.4, subdivision (l) stated: “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.”
In September 2021, the Legislature enacted Assembly Bill No. 177 (2021-2022
Reg. Sess.), which amended section 1465.9 by adding subdivision (b), that states in
relevant part: “On and after January 1, 2022 the balance of any court-imposed costs
pursuant to Section … 1202.4 …, as [that section] read on December 31, 2021, shall be
unenforceable and uncollectable and any portion of a judgment imposing those costs shall
9.
be vacated.” (Stats. 2021, ch. 257, § 35, italics added.) Assembly Bill No. 177
separately repealed and re-enacted section 1202.4, effective January 1, 2022, and the re-
enacted statute eliminated subdivision (l), that authorized the administrative collection
fee for the restitution fine.
While the parties did not address Assembly Bill No. 177 in the supplemental
briefing, it appears the balance of the 10 percent administrative fees to collect the
restitution fines, imposed under section 1202.4, former subdivision (l), are similarly
unenforceable and uncollectible as of January 1, 2022.
III. Conclusion
We remand the matter for further appropriate proceedings to (1) modify the
judgment to reflect that any balances remaining unpaid as of July 1, 2021, for the $375
misdemeanor presentence fee imposed pursuant to former section 1203.1b, and the
$108.19 booking fee imposed pursuant to former Government Code section 29550.2, are
unenforceable and uncollectable, and the portion of the judgment imposing those costs is
vacated; and (2) for the parties to address the application of the amendments contained in
Assembly Bill No. 177 to the administrative collection fees imposed pursuant to
section 1202.4, former subdivision (l), and whether the judgment should be similarly
modified to vacate the balance remaining for those fees.
DISPOSITION
The judgment is conditionally reversed, and the matter remanded to the superior
court for the following:
(1) To modify the judgment to reflect that any balances remaining unpaid as of
July 1, 2021, for the $375 misdemeanor presentence fee imposed pursuant to former
section 1203.1b, and the $108.19 booking fee imposed pursuant to former Government
Code section 29550.2, are unenforceable and uncollectable, and the portion of the
judgment imposing those costs is vacated; and
10.
(2) For the court and parties to address the possible application of the amendments
contained in Assembly Bill No. 177 to the administrative collection fees imposed
pursuant to section 1202.4, former subdivision (l).
Thereafter, the court shall amend its records to reflect modifications to its prior
orders and shall forward a copy of the amended orders to all appropriate authorities. As
modified, the judgment shall be affirmed.
11.