People v. Zabala CA3

Filed 12/2/20 P. v. Zabala 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE, C090631
Plaintiff and Respondent, (Super. Ct. Nos. 19FE003434,
18FE021040)
v.
JEREMIAH RALPH ZABALA,
Defendant and Appellant.
Defendant Jeremiah Ralph Zabala pleaded no contest to criminal offenses in two
separate cases; his sentences were doubled due to a strike prior. The trial court did not
detail any fines or fees in its oral pronouncement of sentence. Defendant argues that
fines and fees reflected in the abstract of judgment were not properly imposed and must
be stricken.1 As we explain, we disagree and affirm the judgment.
1 Defendant initially argued his presentence credits were incorrect. The trial court
subsequently amended the abstract of judgment to correct defendant’s custody credits.
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BACKGROUND
In case No. 18FE021040 (the 2018 case), defendant pleaded no contest to felony
unlawful possession of a firearm (Pen. Code, § 29820).2 In case No. 19FE003434 (the
2019 case), defendant pleaded no contest to felony attempting to evade law enforcement
by driving in the wrong direction (Veh. Code, § 2800.4), felony driving under the
influence of alcohol causing injury or death (Veh. Code, § 23153, subd. (a)), and
misdemeanor resisting arrest (§ 148, subd. (a)(1)). As to each case, defendant admitted a
prior strike allegation based on a 2015 sustained petition for juvenile robbery. (§§ 667,
subd. (b)-(i), 1170.12.)
A probation report prepared for defendant’s sentencing recommended imposing
various fines and fees, including restitution fines of $1,200 in the 2019 case and $300 in
the 2018 case (§ 1202.4), a “suitable fine” in the range of $390 to $1,000, booking and
jail classification fees, various costs including presentence report and investigation,
“mandatory court operations assessment[s]” totaling $160 (§ 1465.8), and court facility
fees totaling $120 (Govt. Code, § 70373).
At the sentencing hearing, immediately after the trial court called the case and
defense counsel waived formal arraignment, the court asked defense counsel if he wanted
to be heard; counsel replied, “Just [to] ask the Court to reduce the fines and fees to either
eliminat[e] them as possible or reduce to statutory minimum.” The court responded:
“I’m prepared to do that” and then announced that it was in receipt of the probation report
and had read and considered the report. The court then ordered the report “filed as part of
(Pen. Code, § 1237.1.) In his reply, defendant concedes that his presentence credits are
now correct.
2 Undesignated statutory references are to the Penal Code.
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the record in this case.”3 Immediately thereafter, the court noted the probation report’s
recommendation for custody time exceeded the plea agreement and confirmed with the
prosecutor that the plea agreement’s recommendation stood. In another apparent
reference to the report, the court then said: “All right. I am going to order this filed and
will maintain jurisdiction for the purpose of restitution.”
The trial court continued, “I will strike fees and fines. However, on page 11, item
8, I will impose five days in lieu of the fine . . . . [⁋] I’ll strike item 9 on page 11. Item
10 on page 12. I’ll also strike item 4 on page 13. I will strike the cost of investigation
and presentence report.” The court then proceeded to address the custodial and credits
portion of the sentence.
As relevant here, the abstract of judgment reflects the minimum $300 restitution
fines (§ 1202.4) in each of defendant’s two cases; $120 in conviction assessments (Gov.
Code, § 70373), and $160 in court operations assessments (§ 1465.8).
DISCUSSION
Defendant’s sole remaining contention on appeal is that the restitution fines and
two sets of fees described above should be deleted from the abstract of judgment because
the trial court did not orally impose them.4
As we have detailed above, a close review of the transcript reveals that the trial
court was working from the probation report and implicitly incorporating it by reference
while orally pronouncing sentence. After indicating it had received and read the report,
3 The probation report was filed August 22, 2019, the same day as the sentencing
hearing.
4 In his opening brief, defendant argued under People v. Dueñas (2019) 30 Cal.App.5th
1157, the trial court’s imposition of non-penal fines without determining defendant’s
ability to pay violated due process. In response, the People argued defendant forfeited
this claim by failing to raise it in the trial court. Defendant expressly abandons this
argument in his reply.
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the court twice ordered it filed, the second time referring to “this,” which strongly
suggests that the court had the report in its direct line of sight while speaking. The court
then continued to specifically refer to the probation report, by page and item number.
Our review of the report reveals page and item numbers that correspond with the
trial court’s oral citations; those items contain interlineations consistent with the trial
court’s oral pronouncements including “5 days in lieu of fine” printed in item 8 on page
11, lines through the booking and classification fees that appear as items 9, 10, and 4, on
pages 11, 12, and 13, respectively, and another physical strikethrough of the
recommended presentence report and investigation costs.
There are additional indications that the trial court was working with the parties
directly from the probation report, and thus implicitly incorporating its recommendations
by reference during sentencing in a manner that resulted in the imposition of the
minimum fees and fines now challenged on appeal. First, near the end of the short
hearing and after the court referenced specific pages of the probation report, as we have
set forth above, the court announced 152 actual days of credit, to which defense counsel
responded that the announced “amount of time . . . is different than in the probation
report.” Indeed, the report calculated 182 days of actual credit. The court responded that
defendant was “serving a 30-day sentence,” which would account for the 30 day
difference in the recommendation. Thus, it appears both the court and counsel were
looking at the report at the time these observations were made. Second, after the court
responded it was “prepared to do that” when asked by defense counsel to reduce fines to
the minimum, implicitly granting the request, the $1,200 restitution fine recommended by
the probation report as to the 2019 case is indeed reduced to the minimum $300, as
reflected in the abstract of judgment. Third, the court did not specifically orally order the
additional mandatory consequences of crimes of conviction listed as recommended
components of the sentence by the report, such as driver’s license suspension and
firearms relinquishment forms and requirements. The court only noted that it would
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reduce the mandatory fines to the minimum, strike the non-mandatories, and then
clarified certain other specific changes that appear interlineated in the report. The
remainder of the recommendations were ordered by implicit incorporation of the
probation report, and were properly included on the abstract of the judgment where
appropriate.
Although we agree that the record is not as detailed as would be ideal, it is
sufficient to show that the minimum fines and fees were indeed imposed.
DISPOSITION
The judgment is affirmed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
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