Sentencing Manual, Sections XVI Through XX

September 2013

Always check to determine if the case has been granted review, depublished, or modified. Additionally, review the Three-Strikes Outline for all Three-Strikes related issues.

XVI. Proposition 36

  1. People v. Wandick (2004) 115 Cal.App.4th 131, the Third Appellate District held that Proposition 36 probation was not available to nonviolent drug offender who was convicted and sentenced to two years in prison for grand theft after conviction, but before sentencing, on drug charge.  (See also People v. Esparza (2003) 107 Cal.App.4th 691 [it was not error to impose “sentence” on appellant for violating probation in a non-drug case when the violation is a new conviction for a drug possession felony.  Furthermore, since appellant would be unavailable for Proposition 36 drug treatment in prison, he may also be sentenced to prison on the drug charge].)

  2. People v. Ferrando (2004) 115 Cal.App.4th 917, the Third Appellate District, held that the defendant was not eligible for the treatment of Proposition 36 following a conviction for “opening” or “maintaining” a place for sale of methamphetamine, within the meaning of Health and Safety Code section 11366.  The court concluded that any non-violent drug offense of a commercial nature, did not qualify for Proposition 36 treatment.

  3. People v. Orabuena (2004) 116 Cal.App.4th 84, the Sixth Appellate District distinguished In re Varnell (2003) 30 Cal.4th 1132, wherein the California Supreme Court held that section 1385 does not permit the trial court to dismiss a prior conviction and to disregard sentencing factors that are not themselves required to be a charge or allegation in an indictment or information.  Here, prior to the defendant pleading guilty to the possession of drug offenses, the defendant had plead guilty to driving on a suspended or revoked license, even though the offenses arouse at the same time.  The Court of Appeal found that the court could dismiss the Vehicle Code violation under section 1385, and such was permissible as the defendant had not been “sentenced,” he had merely served the 30 days in jail as a condition of probation.  Therefore, the matter is reversed and the lower court was ordered to determine if it wants to exercise its discretion to strike the misdemeanor convictions that make the defendant ineligible for Proposition 36 treatment.

  4. Moore v. Superior Court (2004) 117 Cal.App.4th 401, the Third Appellate District held that the five-year “washout” period under section 1210.1, subd. (b)(1) of Proposition 36 begins when the disqualifying felony is committed, not when conviction takes place, when the defendant is placed on probation.  If he is sentenced to state prison, it is when he is released from that institution.

  5. People v. Dagostino (2004) 117 Cal.App.4th 974, the Fifth Appellate District held that the defendant’s failure to meet with the mental health “gatekeeper,” whose job it was to evaluate his circumstances and determine the requisite drug treatment level, constituted violation of a “drug related” condition of Proposition 36 probation. As a result, the court could not revoke probation absent two prior violations or a finding of dangerousness.  Imposition of local jail time as sanction for first violation of probation could not be challenged as part of appeal from order imposing sanctions for second violation.  (See People v. Mendez (1999) 19 Cal.4th 1084, 1094.)  However, the trial court may not on remand, following the reversal of an order erroneously revoking Proposition 36 probation, impose local jail time as a condition of reinstated probation.

  6. People v. Canty (2004) 32 Cal.4th 1266, the California Supreme Court held that a defendant is ineligible for drug treatment under Proposition 36 because driving under the influence of drugs is not simple possession or use of drugs, and is not drug related.  The court does discuss People v. Duncan (1990) 216 Cal.App.3d 1621, wherein the defendant was denied drug diversion because the driving under the influence offense was a drug related offense, and distinguish it based on the statutory schemes of Proposition 36 and section 1000 diversion.

  7. People v. Campbell (2004) 119 Cal.App.4th 1279, the First Appellate District, Division 2, held that Proposition 36 does not permit the court, after determining that residential treatment is appropriate, following a second violation of probation, to allow the defendant to enter an outpatient treatment program in exchange for the defendant’s stipulation to upper prison term in event probation is later revoked.  A defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the statutory scheme.  (In re Mehdizadeh (2003) 105 Cal.App.4th 995, 1006; see also People v. Davies (2003) 104 Cal.App.4th 1443, 1448 [sanction limited to the provision of section 1210].)  The trial court, upon revoking probation and sentencing defendant to the upper term, could not legally rely upon the invalid stipulation and was required to specify reasons for the upper term. (See § 1170, subd. (b); rule 4.433 (c)(1).)

  8. In re Ogea (2004) 121 Cal.App.4th 974, the Fourth Appellate District, Division 3, held that possession of a controlled substance while armed with a loaded, operable firearm, as proscribed by Health and Safety Code section 11370.1, subd. (a), is not a “nonviolent drug possession offense” that would entitle defendant to treatment under Proposition 36.

  9. People v. Dove (2004) 124 Cal.App.4th 1, the Fourth Appellate District, Division 2 held that, the factual finding that a defendant did not possess or transport a controlled substance for personal use, for purposes of Proposition 36 sentencing, may be made by the trial court under a preponderance of the evidence standard.

  10. People v. Eribarne (2004) 124 Cal.App.4th 1463, the Fifth Appellate District held that a conviction for driving with a blood-alcohol level of 0.08 percent or higher in violation of Vehicle Code section 23152, subd. (b) is a “misdemeanor conviction involving . . . the threat of physical injury to another person” within the meaning of section 1210.1, subd. (b)(1), which provides that persons previously convicted of one or more serious or violent felonies who have sustained such a misdemeanor conviction within a period of five years prior to committing a nonviolent drug possession offense are not eligible for probation and diversion into a drug treatment program under Proposition 36.

  11. People v. Bowen (2004) 125 Cal.App.4th 101, the Third Appellate District held that in determining the number of drug offender’s past probation violations for purpose of ascertaining his continuing eligibility for treatment under Proposition 36, the court properly counted pre-Proposition 36 violations, including cases where probation was revoked and jail time imposed.

  12. People v. Hinkel (2005) 125 Cal.App.4th 845, the Third Appellate District held that the trial court’s denial of the petition to set aside the defendant’s drug conviction and terminate probation under Proposition 36 was not an abuse of discretion where the defendant completed a treatment program, after being in two different programs, but the evidence regarding the nature of the program and of the defendant’s performance in it was inadequate to establish reasonable cause to believe that he “successfully completed the program” or that he would remain drug-free.  (See § 1210, subd. (c).)

  13. People v. Thurman (2005) 125 Cal.App.4th 1453, the Third Appellate District held that in a Proposition 36 matter, the court may impose, as a condition of probation, that the defendant waive his statutory right to custody credits for time he spent in a residential drug treatment facility.  If the defendant did not like this option, he could decline probation if the terms are not to his liking.  (See People v. Kendrick (2004) 122 Cal.App.4th 1305, 1311.)  All in all, incarceration is still not an initial option within the limits of Proposition 36.  (People v. Davis (2003) 104 Cal.App.4th 1443, 1446.)

  14. People v. Foreman (2005) 126 Cal.App.4th 338, Division Three held that forging or presenting a forged prescription to obtain drugs in violation of Health and Safety Code section 11368 is not a possessory drug offense for which the defendant is entitled to treatment under Proposition 36.  This court believes that only offenses that come within the clear meaning of the statute, those being for personal use, possession for personal use, or transportation for personal use of the controlled substance; nothing else.  (See In re Ogea (2004) 121 Cal.App.4th 974, 982.)

  15. People v. Guzman (2005) 35 Cal.4th 577, the California Supreme Court held that Proposition 36 does not violate appellant’s right of equal protection under either the federal or state constitutions by failing to require that appellant be granted probation when the current offense was a non-violent drug possession offense while on probation for offenses other than non-violent drug possession offenses.

  16. People v. Wheeler (2005) 127 Cal.App.4th 873, the Third Appellate District held that forging a prescription in violation of Health and Safety Code section 11368, does not meet the statutory definition of a “nonviolent drug possession offense” as required for treatment under Proposition 36.

  17. People v. Martinez (2005) 127 Cal.App.4th 1156, the Second Appellate District, Division 8 held that  the defendant’s proposition 36 probation may be revoked for a check forgery violation, since that is not a drug possession offense.  (In re Taylor (2003) 105 Cal.App.4th 1394, 1398 [the probation violation must be drug-related to apply § 1210.1, subd. (f)].)

  18. People v. Tanner (2005) 129 Cal.App.4th 223, the Fourth Appellate District, Division 1, held that the provisions of Proposition 36, which limits the circumstances under which such probation may be revoked, requires the prosecution to bring three noticed motions to revoke the defendant’s probation before the court may revoke it based exclusively on drug-related violations.  The legislation calls for giving the defendant two chances, before the third motion is brought by the prosecution to terminate probation.  (See People v. Johnson (2003) 114 Cal.App.4th 284, 295.)

  19. People v. Chatmon (2005) 129 Cal.App.4th 771, the First Appellate District, Division Three, held that where the defendant, pursuant to a plea bargain, pleaded guilty to possession of cocaine, and received the benefit of probation and a dismissal of a resisting arrest (§ 148) count.  Had appellant been convicted of resisting, he which would have disqualified him from treatment under Proposition 36.  Appellant was not entitled to relief from a subsequent probation revocation since he was not sentenced under Proposition 36, but got the benefit of his bargain, even if the court acted in excess of its jurisdiction, so long as it had fundamental jurisdiction to sentence appellant.  Having received the benefit of his bargain, appellant cannot now trifle with the courts.  (See People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123.)

  20. People v. Moniz (2006) 129 Cal.App.4th 421, the Third Appellate District held that a conviction for concealing or destroying evidence, including drugs or drug related paraphernalia, is not a misdemeanor related to use of drugs for purposes of Proposition 36 treatment.  (See also People v. Wheeler (2005) 127 Cal.App.4th 873; People v. Foreman (2005) 126 Cal.App.4th 338, 343; In re Ogea (2004) 121 Cal.App.4th 974, 985-987.)

  21. People v. Budwiser (2006) 140 Cal.App.4th 105, the Third Appellate District held that the defendant’s procedural rights, and due process rights, pursuant to Proposition 36, were not violated where the court conducted a single hearing on two separate petitions to revoke probation.  There was substantial evidence to support the finding that the defendant was unamenable to drug dependency treatment in order to support the revocation.  The evidence established that the defendant was removed from the treatment program for three positive tests and one failure to test, and defendant was subsequently found with a device designed to circumvent urine test.

  22. People v. Hartley (2007) 156 Cal.App.4th 589, the Third Appellate District held that the lower court erred in denying appellant’s petition to dismiss the matter wherein appellant had successfully completed the Proposition 36 program.  (See § 12220.1, subd. (d)(1).)  The Court of Appeal found that the probation department could make the application for appellant, and it did not have to come from appellant or counsel.  Even though the court’s literal reading of the statute may be correct, the “plain meaning” rule does not prohibit a court from determining whether the literal meaning of the statute comports with its purpose.  The words of the statute must be read in context, and must be harmonized with other sections.  The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)  The same rule applies to voter initiatives.  (Ibid.)

  23. People v. Hazle (2007) 157 Cal.App.4th 567, the Third Appellate District held that where the defendant on Proposition 36 probation was the subject of three revocation petitions, and the second and third petitions were tried together, but the facts supporting the third petition took place before the second petition was filed, the sustaining of the petitions did not render defendant ineligible to be continued on probation.  (See People v. Tanner (2005) 129 Cal.App.4th 223.)  Proposition 36 entitles an eligible defendant to three distinct periods of probation before he can be found ineligible based solely on drug-related violations.  This court distinguishes People v. Budwiser (2006) 140 Cal.App.4th 105 where the violations were not in the same order as they were in this case.

  24. People v. Enriquez (2008) 160 Cal.App.4th 230, the Third Appellate District held that where the defendant was on Proposition 36 probation and was subject of three separate unadjudicated petitions to revoke probation, all for reasons related to simple possession or use of drugs, the court was required to treat the petitions as a single petition and to continue the defendant on probation absent a finding that he was a danger to others.  (See People v. Hazle (2007) 157 Cal.App.4th 567.)

  25. People v. Castagne (2008) 166 Cal.App.4th 727, the First Appellate District, Division 2 held that the trial court erred in finding that the defendant’s concurrent treatment for two offenses constituted “two separate courses of drug treatment” and rendered defendant ineligible for further Proposition 36 drug treatment under section 1210.1, subdivision (b)(5).  The defendant’s history of probation violations, including violations of drug treatment conditions, did not compel the appellate court to find that defendant had refused drug treatment and was thus ineligible for Proposition 36 treatment under section 1210.1(b)(4) where trial court did not make such a finding, and conflicting inferences from the record could support a contrary finding.  The matter is remanded for the court to make the appropriate findings.

  26. People v. Harris (2009) 171 Cal.App.4th 1488, the Fourth Appellate District, Division 1 held that the court erred in sentencing appellant to state prison, rather than granting Proposition 36 probation, despite his abysmal prior record, which included 7 prior prison terms, and 3 prior enhancements for Health and Safety Code section 11370.2, subdivision (a).  Appellant was convicted, in this current offense, with a violation of transportation of cocaine base.  However, the jury found that the transportation was for personal use.  As a result, the prison sentence was unauthorized, and there could be no waiver, since the court was required to place appellant on Proposition 36 probation.

  27. People v. Sizemore (2009) 175 Cal.App.4th 864, the Second Appellate District, Division 3 held that the trial court did not err in removing the defendant from Proposition 36 diversion program where defendant failed to comply with terms of the diversion program and expressed a desire to “opt out” of the program (see People v. Campbell (2004) 119 Cal.App.4th 1279), and serve “regular” probation.  Defense counsel was not deficient for acquiescing to the defendant’s request after the trial court indicated it believed the defendant was unamenable to Proposition 36 treatment.  Furthermore, the defendant did not suffer prejudice as a result of counsel’s performance.  As defendant failed at every attempt at probation, trial court did not abuse its discretion in sentencing defendant to state prison.  (See People v. Downey (2000) 82 Cal.App.4th 899, 910.)

  28. People v. Haddad (2009) 176 Cal.App.4th 270, the Second Appellate District, Division 5 held that the defendant's admitted use of a device to produce a negative result during court-ordered drug testing, the whizanator, was not a drug-related violation of probation for purposes of Proposition 36 (§ 1210.1).

  29. People v. Friedeck (2010) 183 Cal.App.4th 892, the Second Appellate District, Division 6 held that the defendant's implied refusal of drug treatment as a condition of deferred entry of judgment (§ 1000, subd. (a)(1)), rendered him ineligible for probation under Proposition 36.  (§ 1210.1)  (See also People v. Strong (2006) 138 Cal.App.4th Supp. 1, 5-6.)  Merely because the defendant  attended some AIDS classes was no substitute for not attending drug classes, even if he lost his paperwork.

  30. People v. Bauer (2011) 193 Cal.App.4th 396, the Fifth Appellate District held that the trial court did not abuse its discretion in failing to reintstate appellant back into the Proposition 36 probation due to his many violations.  The Court of Appeal found that appellant did not merely fail to report to the probation officer for “to be tested”, as in People v. Taylor (2003) 105 Cal.App.4th 1394, which was “drug related.”  But, he made no effort to comply with the drug treatment probation, having repeated and flagrant violations, in effect, refused the drug treatment as a condition of probation, and was thus ineligible for reinstatement.  (See People v. Johnson (2003) 114 Cal.App.4th 284, 303.)

  31. People v. Parodi (2011) 198 Cal.App.4th 1179, the First Appellate District, Division 1, held that the trial court did not err in finding that section 4573, willfully bringing a controlled substance into a jail facility, is not a “nonviolent drug possession offense” within the meaning of Proposition 36.

  32. People v. Barros (2012) 209 Cal.App.4th 1581, the First Appellate District, Division 5 held that Proposition 36 or section 1210.1, subdivision (a), makes its provisions inapplicable if the defendant is convicted of a non-drug offense in the "same proceeding," as the non -violent drug offense charges are not brought in the same proceeding unless they are properly joined in a single pleading. (See § 1210.1, subd. (b)(2).)  However, when the drug and non-drug charges were severed due to misjoinder, that ruling was binding on the judge in the subsequent proceeding on the drug charges, who was required to sentence defendant under Proposition 36.

XVII. One Strike Law Section 667.61

  1. People v. Benitez (2005) 127 Cal.App.4th 1274, the Third Appellate District held that under “one-strike” provision (§ 667.61), requiring imposition of 15-year-to-life sentence if defendant is convicted of child molestation involving multiple victims (§ 667.61, subd. (e)(5)), unless defendant is qualified for probation pursuant to section  1203.066, subd. (c), the question of whether the defendant is qualified for probation is to be made by judge rather than by jury.  Since the granting of probation is an act of clemency and not a form of punishment (see People v. Superior Court (Kirby) (2003) 114 Cal.App.4th 287, 293-295), the sentence was not increased, and therefore, there was no Blakely violation.

  2. People v. Chan (2005) 128 Cal.App.4th 408, the Second Appellate District, Division 5 held that where the evidence established that the defendant was found by police at a location other than that listed on his sex offender registration, which was non-existent; that the defendant knew he had a duty to register as a sex offender; that the defendant told the police that he lived at the location where he was found; and that the defendant in fact lived at a location which was neither the one at which he was found nor the one listed on his registration, was sufficient for the jury to find that he violated section 290.  The jury was not precluded from finding that the defendant’s act was wilful, in spite of his testimony that he mistakenly listed the wrong address, that he meant to use the correct address, and that he did not tell the officer he lived at the location where he was found.  (See People v. Garcia (2001) 25 Cal.4th 744, 751-752 [the defendant must willfully violate the statute]; People v. Edgar (2002) 104 Cal.App.4th 210, 220-221 [defendant must actually know that staying at a different residence required an additional registration].)  The corpus delicti rule (see People v. Alvarez (2002) 27 Cal.4th 1161, 1170), does not extend to statements which constitute the commission of the charged crime.  (See People v. Carpenter (1997) 15 Cal.4th 312, 394.)  As a result, the rule does not preclude the defendant’s conviction, based on his own false written entries on state’s registration form, which he admitted filling out.  The defendant cannot be convicted of violating section 288, subd. (b)(1), lewd conduct by force, and section 288, subd. (a), lewd conduct without force, where the same conduct make up both offenses, as the section 288, subd. (a) is a lesser included offense to the section 288, subd. (b)(1) offense.  (See People v. Ortega (1998) 19 Cal.4th 686, 692, 693 [cannot be convicted of the lesser included offense and the greater offense].)  Where the defendant was previously convicted of section 288, subd. (a), and where he is currently convicted of multiple violations of section 288, subd. (b)(1), the court was required by the One-Strike Law (see § 667.61) to impose consecutive sentences of 25 years to life for each violation of section 288, subd. (b)(1).  It had the option of striking the prior in the interests of justice (People v. Jordan (1986) 42 Cal.3d 308, 319, fn. 7; People v. Bradley (1998) 64 Cal.App.4th 386, 400, fn. 5), and since that was not considered it must be remanded for resentencing.

  3. People v. Rodriguez (2005) 129 Cal.App.4th 1401, the Fourth Appellate District, Division 2, held that the trial court erred when it believed that it did not have the discretion to impose concurrent terms for multiple convictions under the one strike law within the meaning of section 667.61.

  4. People v. Fuller (2006) 135 Cal.App.4th 1336, the Second Appellate District, Division 1 held that multiple rapes all committed against the same victim within an hour and within her apartment, albeit in different rooms, occurred “during a single occasion” under the “one strike” law (§ 667.61) punishing forcible sex crimes.  The “single occasion” rule is different when applying section 667.61 and not section 667.6.  (See People v. Jones (2001) 25 Cal.4th 98.)  Where the defendant was convicted on multiple counts of rape, and all of the crimes were committed “during a single occasion” within the meaning of the one strike law, the defendant was subject to a single enhanced sentence on one count for the sex acts (see People v. Wutzke (2002) 28 Cal.4th 923, 929-930; People v. Mancebo (2002) 27 Cal.4th 735, 741-742), and to separate, determinate sentences on the other non-sex counts.  (See People v. Acosta (2002) 29 Cal.4th 105, 118-128.)

  5. People v. Hiscox (2006) 136 Cal.App.4th 253, the First Appellate District, Division 3 held that where the defendant was charged with committing certain sexual offenses during a designated time period, which began prior to effective date of “One Strike” law (§ 667.61) November 30, 1994, and ended after that date, and where the prosecution did not prove that the offenses occurred after that date, sentencing under section 667.61 violated ex post facto clauses.  An ex post facto violation resulting in an unauthorized sentence may be raised on appeal even if the defendant failed to object.  (People v. Zito (1992) 8 Cal.App.4th 736, 741-742.)

  6. People v. McQueen (2008) 160 Cal.App.4th 27, the First Appellate District, Division 3 held that where the defendant was convicted of violent sexual offenses for which he was subject to sentencing under both the one-strike law (§ 667.61) and the habitual sex offender law (§ 667.71), enhanced in each instance by the Three Strikes Law, the court correctly imposed the habitual sex offender penalties and stayed, and did not strike, the one-strike sentence.  The courts are split over whether the one strike law should be stayed or stricken, People v. Snow (2003) 105 Cal.App.4th 271, indicates stricken, whereas People v. Lopez (2004) 119 Cal.App.4th 355, indicates that it should be stayed; this court obviously sides with Lopez.  But, it is clear that the Three Strike law acts to increase sentence on each count. People v. Hiscox (2006) 136 Cal.App.4th 253, the First Appellate District, Division 3 held that where the defendant was charged with committing certain sexual offenses during a designated time period, which began prior to effective date of “One Strike” law (§ 667.61) November 30, 1994, and ended after that date, and where the prosecution did not prove that the offenses occurred after that date, sentencing under section 667.61 violated ex post facto clauses.  An ex post facto violation resulting in an unauthorized sentence may be raised on appeal even if the defendant failed to object.  (People v. Zito (1992) 8 Cal.App.4th 736, 741-742.)

  7. People v. Valdez (2011) 193 Cal.App.4th 1515, the Second Appellate District, Division 5 held that the “one strike law,” pursuant to section 667.61 does not limit application of multiple victim circumstance so that it can be imposed only once for each victim regardless of whether the crimes were committed on separate occasions.  In other words, a defendant may be sentenced per occurrence, not per victim, under the section 667.61, where sex offenses were committed on multiple victims.

  8. People v. Byrd (2011) 194  Cal.App.4th 88, the Fourth Appellate District, Division 1 held that the trial court did not err in declining to stay defendant's sentence for simple kidnapping, under section 207, subdivision (a), where his sentence under the one strike law (§ 667.61) was premised on aggravated kidnapping for commission of sexual crimes under section 667.61, subdivisions (c) and (d)(2), and not on simple kidnapping.

  9. People v. Rodriguez (2012) 207 Cal.App.4th 332, the Second Appellate District, Division 4, held that the trial court erred in sentencing defendant under former section 667.61, subdivision (g), which limited the imposition of One Strike terms for multiple sex offenses committed on a single occasion to imposing it just once. Because the legislature amended the One Strike law to eliminate this provision prior to defendant’s offenses, the trial court was obliged to impose a One Strike term on each of the defendant’s offenses eligible for sentencing under the One Strike law.  Trial court erred by imposing a One Strike term as an enhancement rather than as a principal term. Trial court erred in both imposing a knife-use enhancement and using the knife use as an aggravating circumstance bringing the case within the One Strike law. The trial court erred in imposing a life term for kidnaping during a carjacking, where that offense was also the basis for a One Strike sentence. The trial court erred in imposing full consecutive middle term for attempted sodomy; this crime is subject to section 1170.1, as attempted sodomy does not fall under the full-term consecutive sentence provisions of section 667.6 or the One Strike law.

  10. People v. Luna (2012) 209 Cal.App.4th 460, the Fourth Appellate District, Division 3 held that section 667.61, subdivision (e)(1) does not require a finding that defendant kidnapped victim with the intent to commit a sexual offense against that victim in order to impose the indeterminate heightened sentence under section 667.61, subdivision (b). The plain language of section 667.61, subdivision (e)(1) only requires a finding that the defendant kidnapped the victim of the sexual offense. (C.f. People v. Jones (1997) 58 Cal.App.4th 693, 717.)

XVIII. Fines, Fees and Blood Samples

  1. People v. Wallace (2004) 120 Cal.App.4th 867, the Second Appellate District, Division 5, held that a court security fee of $20, pursuant to section 1465.8, levied on persons convicted of crimes, and also on parties to various other types of proceedings, is not punitive in nature and may be imposed on defendant whose offense was committed prior to the effective date of legislation imposing the fee; therefore it is not an ex post facto violation.

  2. People v. Dickerson (2004) 122 Cal.App.4th 1374, the Sixth Appellate District held that, pursuant to People v. Walker (1991) 54 Cal.3d 1013, 1027, wherein the Supreme Court stated that “[c]ourts and the parties should take care to consider restitution fines during the plea negotiations,” does not prohibit criminal defendants from striking bargains that leave the imposition of fines to the discretion of the sentencing court.  Where the court in taking the defendant’s plea, advised the defendant that the court was required to impose a restitution fine of between $200 and $10,000, and at sentencing imposed a fine of $6,800 as recommended by probation report, an objection to court’s failure to advise the defendant at the time the plea was taken of the statutory mandate that a fine greater than the statutory minimum was required, was waived by counsel’s failure to make an objection at sentencing.  (People v. Walker, supra, 53 Cal.3d at p. 1023.)

  3. People v. Sorenson (2005) 125 Cal.App.4th 612, the Sixth Appellate District ruled, similarly to their opinion in People v. Dickerson (2004) 122 Cal.App.4th 1374, that a defendant, who was informed during his plea that he was subject to “fines and fees” up to a specified amount and to a restitution fine with a specified minimum and maximum amount, was adequately advised of potential fines and assessments that were within those parameters; since they were not made part of the plea agreement, their imposition did not violate the agreement.  The Court of Appeal concluded by stating that the trial court need not advise the defendant of every possible statute under which he could be fined.

  4. People v. Willie (2005) 133 Cal.App.4th 43, the First Appellate District, Division 5, held that since section 1214, subd. (a) provides that enforcement of a restitution fine must be “in the manner provided for the enforcement of money judgments generally,” granting the district attorney’s motion for release of funds held in trust by the police department to pay the fine and the court’s amending the sentencing order nunc pro tunc to include an order releasing the funds were not proper enforcement methods.

  5. People v. Le (2006) 136 Cal.App.4th 925, the Sixth Appellate District held restitution and parole revocation fines are “punishment” within meaning of section 654; therefore, the lower court erred in treating the robbery and burglary convictions as separate in calculating such fines.  Where the trial court indicated its intent to impose the minimum parole revocation and restitution fines and erroneously calculated such minimums, the Court of Appeal can reduce such fines to properly calculated minimum even though the trial court would have had discretion to impose larger fines.

  6. People v. Espana (2006) 137 Cal.App.4th 549, the Fourth Appellate District, Division 3 held that where the order requiring the defendant to give a DNA sample was overturned based on the law in effect at that time, but samples were in DNA bank when Proposition 69, under which defendant could lawfully be required to give such samples prior to release from custody, became law, the defendant was not entitled to have his samples destroyed.  Proposition 69 is not an ex post facto law as applied to defendant convicted of a qualifying offense before the effective date of the statute who was confined to prison when statute was enacted.  (See Rise v. Oregon (9th Cir. 1995) 59 F. 3d 1556, 1562; Indianapolis v. Edmund (2000) 531 U.S. 32 [143 L.Ed.2d 333, 121 S.Ct. 447].)

  7. People v. Zackery (2007) 147 Cal.App.4th 680, after the granting of a petition for rehearing, the Third Appellate District held that where the clerk’s minutes of a change of plea, minutes of the sentencing, and the abstract of judgment differed from the court’s oral pronouncement and included items never orally imposed in defendant’s presence, the minutes must be stricken to reflect what actually occurred and the judgment that the judge actually pronounced.  (See People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)  Where the clerk erroneously indicated in the minutes of the change of  plea that the defendant changed his plea from not guilty to no contest, the sentence on that count was unauthorized and must be vacated. (People v. Hartsell (1973) 34 Cal.App.3d 8, 13-14.)  The failure to impose a restitution fine was reversible error where the reasons for not doing so were not stated on record.  (See § 1202.4, subd. (b).)

  8. People v. Chavez OVERRULED BY LEGISLATION; formerly at: (2007) 150 Cal.App.4th 1288, the Second Appellate District, Division 5 held that where a defendant is convicted of cocaine possession is subject to mandatory financial penalties, including criminal laboratory analysis fee in the amount of $50, a drug laboratory fine under section 1464, subd. (a) in the sum of $50, a $35 assessment under Government Code section 76000, subd. (a), a $10 state surcharge on the criminal laboratory analysis fee, and state court construction penalties totaling $67.50, or one-half of the criminal laboratory analysis fee, the drug laboratory fine, and the section 76000, subd. (a) assessment.  The court’s failure to impose any of such penalties constitutes jurisdictional error.  The state surcharge of 20 percent applies to criminal laboratory analysis fee, but does not apaply to section 1464, subd. (a) and section 76000, subd. (a) assessments.  State court construction penalty applies to all counties regardless of whether they are participating in a local Courthouse Construction Fund or the Transitional State Court Facilities Construction Fund.  The restitution fine under section 1202.4, subd. (b)(1) and parole revocation restitution fine under section 1202.45 are not enhanced by section 1464, subd. (a) and section 76000, subd. (a) penalty assessments or by the 20 percent state surcharge under section 1465.7.  Court security fee of $20, which by statute must be imposed upon conviction of any offense other than a parking violation, is enhanced by a section 1464, subd. (a) penalty assessment of $20; a $14 section 76000, subd. (a) penalty assessment; a $4 section 1465.7, subd. (a) state surcharge; and a $10 state court construction penalty, plus a $10 state court construction penalty on the section 1464, subd. (a) assessment and a $7 state court construction penalty on the section 76000, subd. (a) penalty assessment. 

  9. People v. Crandell (2007) 40 Cal.4th 1301, the California Supreme Court held that the court’s imposition of a $2,600 restitution fine, which was not stated by the prosecutor when he recited parties plea agreement, did not violate the negotiated disposition where the court, before taking defendant’s plea, had accurately advised him he would “have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000" and ascertained that prosecution had not made “any other promises” beyond that he would be sentenced to 13 years in prison.  The court distinguished People v. Walker (1991) 54 Cal.3d 1013, where it was not mentioned in the negotiations or before taking the plea, like it was, by the court, in this case.

  10. People v. Crittle (2007) 154 Cal.App.4th 368, the Third Appellate District held that a $20 court security fee, as provided for in section 1465.8, must be imposed based on a conviction for which punishment has been stayed pursuant to section 654.  People v. Pearson (1986) 42 Cal.3d 351, 361 [bars use of conviction for any punitive purpose] does not apply since a fee is not punishment. (People v. Wallace (2004) 120 Cal.App.4th 867, 874-878.)  A $10 crime prevention fine, pursuant to section 1202.5, subd. (a), can be imposed only once in a case rather than for each conviction in a case.

  11. People v. McCoy (2007) 156 Cal.App.4th 1246, the Second Appellate District, Division 5 held that Senate Bill 425, which amended previous provisions of law with regard to the calculation of a state court construction penalty imposed in all criminal cases, by providing that the fee imposed by county board of supervisors for local courthouse construction fund be deducted from the penalty, and by clarifying that the penalty was to not to be added to any restitution fine, to any penalty assessment imposed under section 1464, subd. (a) or section 76000, subd. (a), or to a state surcharge imposed under section 1465.7, applies to cases pending on appeal when the bill was signed into law on October 5, 2007.  Where the court imposes a $50 laboratory fee under Health and Safety Code section 11372.5, subd.(a), it is required to impose a 20 percent state surcharge pursuant to section 1465.7, subd. (a), but cannot impose a state court construction penalty in addition to the state surcharge.

  12. People v. Alford (2007) 42 Cal.4th 749, the California Supreme Court held that, consistent with People v. Wallace (2004) 120 Cal.App.4th 867, 870, found that the imposed fee upon every defendant convicted of a crime pay a $20 court security fee pursuant to section 1465.8 is not punitive (see People v. Castellanos (1999) 21 Cal.4th 785), and may be applied to defendants whose offenses were committed prior to the effective date of that section without being in violation of the prohibition against ex post facto laws as it is necessary to fund court security.

  13. People v. Walz (2008) 160 Cal.App.4th 1364, the Second Appellate District, Division 5 held that where the court imposed a $200 sex offender fine rather than the $300 fine set forth in section 290.3, subd. (a), the imposition of the $200 fine was “unauthorized” and thus subject to sua sponte reversal.  Where the court was authorized to fine the defendant $500 for each sex offense conviction in excess of the first, but was also authorized not to impose the fines if it found defendant lacked the ability to pay, and the prosecution did not object to the omission of the fines, the Court of Appeals was required to presume that the lower court found that the defendant lacked the ability to pay the additional fines and that the omission of those fines was not error.  (People v. Burnett (2004) 116 Cal.App.4th 257, 261; see also People v. Stewart (2004) 117 Cal.App.4th 907, 911.)  On a silent record it is presumed the court determined that the defendant did not have the ability to pay and should not be compelled to pay the fine.  (Ibid.)  No assessments are levied on restitution fines (sec. 1202.4) or parole restitution fines (sec. 1202.45.)  But, the assessments pursuant to sections 1464, subd. (a)(3)(A), 1265.7, subd. (a), Government Code section 70372, subd. (a)(3)(A), and Government Code section 76000, subd. (a)(3)(A) shall apply retroactively.  (See People v. McCoy (2007) 156 Cal.App.4th 1246, 1257.)  Additionally, a $20.00 court security fee, pursuant to section 1465.8, applies to each conviction.  (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)  People v. Alford (2007) 42 Cal.4th 749, the California Supreme Court held that, consistent with People v. Wallace (2004) 120 Cal.App.4th 867, 870, found that the imposed fee upon every defendant convicted of a crime pay a $20 court security fee pursuant to section 1465.8 is not punitive (see People v. Castellanos (1999) 21 Cal.4th 785), and may be applied to defendants whose offenses were committed prior to the effective date of that section without being in violation of the prohibition against ex post facto laws as it is necessary to fund court security.

  14. People v. Eddards (2008) 162 Cal.App.4th 712, the Third Appellate District held that the court erred in ordering a defendant to pay restitution to restitution fund plus a 10 percent administrative fee because the administration fee is only statutorily authorized where restitution is made to direct victim.  (See § 1203.1)  An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed and cannot be lumped together.

  15. People v. Valencia (2008) 166 Cal.App.4th 1392, the Second Appellate District, Division 5 held that a penalty could not be assessed under Government Code section 76104.6 [levying of an additional penalty of $1 for every $10 upon every fine, penalty, or forfeiture imposed and collected by courts for all criminal offenses], on court security fees.  The penalty under section 76104.7 [providing for a penalty of $1 for every $10 in other fines and penalties to pay for DNA testing], could only be imposed in addition to a penalty imposed pursuant to section 76104.6.  Where no penalty was imposed pursuant to section 76104.6, court erred in imposing the penalty pursuant to section 76104.7.

  16. People v. DeFrance (2008) 167 Cal.App.4th 486, the Third Appellate District held that the trial court did not abuse its discretion in imposing $10,000 restitution fine where defendant demonstrated it would be difficult for him to pay fine at current prison wages but did not show absolute inability to ever pay fine.  (People v. Drautt (1998) 73 Cal.App.4th 577, 581.)  The defendant must his inability to pay, and the court had the discretion to weigh the seriousness and gravity of the offense pursuant to section 1202.4, subdivision (d).  Trial court’s imposition of parole revocation fine was imposed in error where no parole was possible.  (People v. Jenkins (2006) 140 Cal.App.4th 804, 819.)

  17. People v. Valenzuela (2009) 172 Cal.App.4th 1246, the Second Appellate District, Division 5 held that a fine of $300 imposed after appellant plead to an offense pursuant to section 290, was an unauthorized sentence because at the time of his offense, section 290 only provided for a fine of $200 upon a first conviction.  The prohibition against ex post fact laws applies to restitution fines.  (Cf. People v. Saelle (1995) 35 Cal.App.4th 27, 30 [a fine is calculated by the date of the offense].)  Additionally, the trial court erred in failing to impose mandatory penalty assessments, the state court construction surcharge, and state surcharge upon the mandatory restitution fine imposed under section 290.  Where the correct total amount of the fine, penalty assessments, and surcharges exceeded the amount of fine that the trial court implicitly found that the defendant could pay, the defendant was entitled to remand to determine whether he could pay the correct amount.  (See People v. Walz (2008) 160 Cal.App.4th 1364, 1372.)

  18. People v. Castellanos REHEARING GRANTED: FORMERLY AT: (2009) 173 Cal.App.4th 1401, the Second Appellate District, Division 5 held that additional penalty assessments, the state surcharge, court construction penalty, and deoxyribonucleic acid penalties, must be imposed in addition to the fine imposed pursuant to section 1202.5, subdivision (a), for theft-related cases, subject to the defendant’s ability to pay.  All of the additional charges are mandatory.  (See § 1464, subd. (a); Govt. Code § 76000, subd. (a)(1); § 1465.7, subd.(a); Gov’t Code § 70372; and Gov’t §§ 76104.6 and 76104.7.)

  19. People v. Robertson (2009) 174 Cal.App.4th 206, the Third Appellate District held that, the trial court may impose a 10 percent administrative fee to cover the county’s cost of collecting a “restitution fine” ordered pursuant to section 1202.4, subdivision (a)(3)(A).  This court clarified its opinion in People v. Eddards (2008) 162 Cal.App.4th 712, which seemingly held that the court erred in ordering a defendant to pay restitution to the restitution fund plus a 10 percent administrative fee because the administration fee is only statutorily authorized where restitution is made to direct victim. (See § 1203.1)

  20. People v. Brooks (2009) 175 Cal.App.4th 1, the Third Appellate District held that convictions for misdemeanor offenses can be assessed pursuant to Government Code section 70373, subdivision (a)(1), where the act occurred before the assessment was passed since it was nonpunitive and therefore did not violate prohibition against ex post facto laws.  (People v. Alford (2007) 42 Cal.4th 749 [as it applies to § 1465.8, subd. (a)(1).)

  21. People v. Castellanos (2009) 175 Cal.App.4th 1524, the Second Appellate District, Division 5 held that a fine pursuant to section 1202.5, subdivision (a) (a crime prevention program fine), pertaining primarily to theft-related crimes, is subject to additional penalty assessments, surcharges, and further penalties, if the defendant has the ability to pay.

  22. People v. Castillo (2010) 182 Cal.App.4th 1410, the Third Appellate District held that the trial court did not err in ordering defendant to pay a $30 criminal conviction assessment under Government Code section 10373, which was enacted after date of defendant’s offense, but the defendant’s conviction occurred after the statute’s effective date.  The assessment did not violate ex post facto principles because it was not punitive, was not denominated a “fine,” was a small amount, and was not based on the seriousness of a defendant’s crime.  (See People v. Alford (2007) 42 Cal.4th 749, 754 [pertaining to the court security fee].)

  23. People v. Fleury (2010) 182 Cal.App.4th 1486, the Third Appellate District held that the imposition of the $30 court facilities assessment mandated by Government Code section 70373 for crimes committed before the enactment of the statute does not violate state and federal prohibitions against ex post facto laws, as the legislature did not intend for the assessment to constitute punishment, and the assessment is not so punitive as to override the legislature’s intent. (See People v. Alford (2007) 42 Cal.4th 749, 754 [pertaining to the court security fee].)

  24. People v. Davis (2010) 185 Cal.App.4th 998, the Second Appellate District, Division 4 held that the new $30-35 count facility fee pursuant to Government Code section 70353 does not apply  to cases in which the defendant's conviction, was before January 1, 2009, the effective date of the statute.  Where, as here, a civil disability flows as a consequence of the conviction, the majority an better rule is to require the entry of judgment.  (Helena Rubenstein v. Younger (1977) 71 Cal.App.3d 406, 421.)  Since there is no “civil disability” flowing from the small facilities fee assessment, the ordinary rule applies:  the defendant was convicted when he entered the plea.  Since the statute only applies to cases in which the conviction occurs on or after its effective date, it does not apply in this case.

  25. People v. Phillips (2010) 186 Cal.App.4th 475, the Fifth Appellate District held that Government Code section 70373, subdivision (a)(1), mandating a $30 court facilities assessment upon every conviction of a felony or a misdemeanor, applies to every conviction occurring on or after the statute's effective date, regardless of the date of the crime.  (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.)

  26. People v. Knightbent (2010) 186  Cal.App.4th 1105, the Third Appellate District held that under section 1202.5, subdivision (a), the defendant shall pay a fine of $10 in addition to any other penalty or fine imposed, which is used to implement crime prevention programs, and shall be in addition to other fees.  (See § 1202.5, subd. (b).)  The fine assessed under section 1202.5 is not comparable with a restitution fine under section 1202.4 which do not have other assessment attached.  (See People v. Sorenson (2005) 125 Cal.App.4th 612, 617.)  Additionally, the Court of Appeal followed People v. Alford (2007) 42 Cal.4th 749, 755-759, and People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4, finding that the assessments to the fines do not violate of ex post facto considerations.  Here, appellant's crime was committed before the passage of the legislation that implemented the fees imposed.

  27. People v. Pacheco (2010) 187 Cal.App.4th 1392, the Sixth Appellate District held that the trial court erred in ordering the defendant to pay certain fines and fees without a hearing on his ability to pay.  The defendant did not forfeit objections to imposition of fines and fees in the absence of an ability-to-pay determination because such claims were based on insufficiency of the evidence and did not have to be asserted in trial court.  (People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [challenge to order for attorney fees based on insufficiency may be challenged for the first time on appeal]; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1537 [same].)  An order to pay fees of court-appointed counsel is discretionary and requires proof of ability to pay.  Finding of such ability may be express or implied but must be supported by substantial evidence (People v. Nilsen (1988) 199 Cal.App.3d 344, 437; People v. Kozeen (1974) 36 Cal.App.3d 918, 920), and referral to the county revenue department for a determination of ability to pay does not meet this standard.  The imposition of a booking fee within the meaning of Government Code section 29550, subdivision (c), or Government Code sections 29550.1 or 29550.2, was error absent a determination of ability to pay and a finding that the amount imposed was not greater than the actual cost of booking.  Imposition of the probation supervision fee was error where there was no evidence that the probation officer or the court made a determination of defendant's ability to pay or that defendant was advised of his right to have the court make this determination or that he waived this right, and where payment was made a condition of probation in violation of statute providing that it be collectible as a civil judgment.  Cost which are collectable as civil judgments, cannot be made a condition of probation.  (People v. Washington (2002) 100 Cal.App.4th 590, 592.)  Payment of court security fee under section 1465.8 cannot be made a condition of probation.  (People v. Alford (2007) 42 Cal.4th 749, 756, 758.)

  28. People v. Lopez (2010) 188 Cal.App.4th 474, the Fourth Appellate District, Division 2 held that the requirement that the court impose a facilities assessment under Government Code section 70373 on defendants convicted of felonies and misdemeanors applies to all convictions incurred after that section's effective date regardless of the commission date of the crime.  (People v. Phillips (2010) 186 Cal.App.4th 475; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414; People v. Knightbent (2010) 186 Cal.App.4th 1105.)

  29. People v. Cortez (2010) 189 Cal.App.4th 1436, the Fourth Appellate District, Division 3 held that court impose a facilities assessment under Government Code section 70373, applies to all “convictions” for criminal and vehicle code violations.  The Court of Appeal also rejected appellant's contention that there is an ex post facto violation since the statute was enacted after appellant's crimes were committed, but before he was convicted.  The fee authorized is triggered by the conviction not the underlying criminal act.  (People v. Davis (2010) 185 Cal.App.4th 998.  Secondly, the fee does not act as a penalty (see People v. Fleury (2010) 182 Cal.App.4th 1486, 1492), and thus ex post facto principles do not apply.  (See People v. Alford  (2007) 42 Cal.4th 749, 756.)

  30. People v. Woods (2010) 191 Cal.App.4th 269, the Second Appellate District, Division 5 held that the trial court erred in staying the mandatory Government Code section 70373 court facility assessment (see People v. Hanson (2000) 23 Cal.4th 355, 362 [re: mandatory assessments]), when it placed appellant on probation pursuant to section 1210.1, subdivision (a).  (Proposition 36.)  There is no authority that permits the assessment be stayed.  (People v. Catteneo (1990) 217 Cal.App.4th 1577, 1589 [cannot stay a § 11372.4, subd. (a) enhancement].)  While court may decline to impose a section 1202.4, subdivision (b)(1) restitution fine in exceptional circumstances, it was error to stay the fine in absence of such findings.

  31. People v. Sharret (2011) 191 Cal.App.4th 859, the Second Appellate District, Division 5 held that where the defendant was convicted of two counts, possession of heroin for sale, count 1, and sale of heroin, count 2, which arose out of a single incident wherein the defendant gave heroin to another person, and ultimately it was given to an undercover officer.  The defendant was then arrested and found in possession of more heroin, along with cash.  The defendant was subject to a separate criminal laboratory analysis fee under Health and Safety Code section 11372.5, plus penalties and surcharges as to each of the two counts. Imposition of the drug program fee pursuant to Health and Safety Code section 11372.7 as to only one of two counts was not error where record was silent as to the defendant's ability to pay.  (Health & Saf. Code § 11372.7, subd. (b).)  Since such ability is a prerequisite to imposition of the fee, finding that defendant lacked such ability is implied where fee is not imposed (People v. Turner (2002) 96 Cal.App.4th 1409, 1413, fn. 2), and the prosecution's failure to object when the court has the discretion to not impose the fee, forfeits the issue on appeal.  (People v. Tillman (2000) 22 Cal.4th 300, 303.)  The criminal laboratory analysis fee is punitive (see People v. Alford (2007) 42 Cal.4th 749, 755; People v. Castellanos (1999) 21 Cal.4th 785, 795 [if a fee or fine is punitive in nature it must be stayed if the substantive count is stayed]), and must therefore be stayed whenever imposition of sentence on the count to which it applies is stayed under section 654, and here count 1 was stayed.  However, it was proper to impose the court security fee of section 1465.8, subdivision (a)(1), even though count 1 was stayed (see People v. Crittle (2007) 154 Cal.App.4th 368, 370), since that fee is not punitive.  (People v. Alford, supra, 42 Cal.4th at 755-757.)

  32. People v. Kim (2011) 193  Cal.App.4th 836, the Sixth Appellate District additionally held that the court held that Penal Code section 1465.8, subdivision (a), the court security fee, and the assessment on every felony conviction pursuant to Government Code section 70373, subdivision (a)(1) are not subject to an automatic penalty assessment.  Neither statute provides for considering a defendant's ability to pay, not do they provide for imposing the fee or assessment as a condition of probation.  Such fees are collateral to a defendant's crime or punishment, are not oriented toward a defendant's rehabilitation, but toward revenue for the court, and therefore should not be a condition of probation.  (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1403.)

  33. People v. Orozco (2011) 199 Cal.App.4th 189, the Fifth Appellate District held that the trial court did not err when it imposed an order for the defendant to pay the cost of a probation report pursuant to section 1203.1b, even though he was sentenced to prison rather than being granted probation.

  34. People v. Hoover (2011) 199 Cal.App.4th 1470, the Second Appellate District, Division 6 held that the trial court did not err in finding that the defendant was able to pay probation supervision and investigation fees at the rate of $30 per month, as it was supported by evidence that the defendant possessed a cell phone and a car and lived in an expensive area.  Requiring the defendant to pay fees at a rate of $30 per month, while they accrued at the rate of $205 per month, was not unreasonable where the total fees would only reach $4,615.  Section 1203.1b, subdivision (e)(2) precludes the court from basing a finding of ability to pay on a projection of the defendant's financial condition more than one year into the future, but it does not preclude the court from requiring that he pay the costs over a period of more than one year where his current financial situation suggests an ability to do so.

  35. People v. Voit (2011) 200 Cal.App.4th 1253, the Sixth Appellate District held that the court's oral pronouncement of the assessments takes precedent over the written minute order.  (People v. Sharret (2011) 191 Cal.App.4th 859, 863-864.)

  36. People v. Mason REVIEW GRANTED: FORMERLY AT: (2012) 206 Cal.App.4th 1026, the Sixth Appellate District held that where the trial court imposed a "criminal justice fee" also known as a "booking fee", pursuant to Government Code section 29550.1, and not Government Code section 29550, subdivision (c), or 29550.2, then there is no violation of equal protection or the need to show the actual cost of booking for various reasons.  There is a distinction between defendants arrested by city police, who may be ordered to pay booking fee without a finding of ability to pay, and those arrested by certain other agencies, who may only be ordered to pay the fee if ability to pay is found, does not violate the equal protection clause because such persons are not similarly situated, as booking fees for city arrestees are smaller. There is no statutory requirement that the amount assessed against defendant as a booking fee be the actual or approximate cost of booking.  The defendant’s claim that trial court erred in requiring him to pay booking fee to arresting agency without a finding of ability to pay constituted a substantial-evidence challenge and was cognizable for first time on appeal.  The court distinguishes  certain aspects, People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399, which held, do to the language of  Government Code section 29550, subdivision (c), or 29550.2, that there was a requirement that the court find an ability to pay.

  37. People v. Almanza REVIEW GRANTED; FORMERLY AT: (2012) 207 Cal.App.4th 269, the Fourth Appellate District, Division 2 held that Government Code section 29550.1 does not require a finding of ability to pay the criminal justice administration fee required of a convicted defendant arrested by city police. There is no requirement that the court hold an evidentiary hearing on the actual administrative costs of booking to impose a statutory booking fee.  The Court of Appeal recognizes that People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399 came to the opposite conclusion as it pertains to determining the actual administrative costs of booking the defendant.

  38. People v. Robinson (2012) 209 Cal.App.4th 401, the Second Appellate District, Division 5 held that the trial court erred in failing to impose a court operations assessment required by section 1465.8, subdivision (a)(1) (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328), and a court facilities assessment required by Government Code section 70373, subdivision (a)(1), (People v. Woods (2010) 191 Cal.App.4th 269, 274), was an "unauthorized" sentence and subject to correction by the court on the defendant’s appeal.  Additionally, the Court of Appeal held that custody and conduct credits that exceed defendant’s sentence may not be used to "write off" assessments mandated by either statute.

  39. People v. Sencion (2012) 211 Cal.App.4th 480, the Second Appellate District, Division 5 held that the trial court erred when it imposed both a restitution fine and a parole revocation restitution fine as to each count of a conviction, (see People v. Soria (2010) 48 Cal.4th 58, 62-66; People v. Schoeb (2005) 132 Cal.App.4th 861, 865), nor may it base a restitution fine on any count that has been stayed. (People v. Carlson (2011) 200 Cal.App.4th 695, 710.) The trial court also erred when it failed to orally assess a $40 court security fee (§ 1465.8, subdivision (a)(1)), or a $30 court facilities fee. (Gov't Code § 70373), as they apply to each count of which the defendant is convicted. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3.)  A court security fee, however, is not punitive for purposes of sentencing for a stayed conviction (People v. Sharret (2011) 191 Cal.App.4th 859, 865 [the security fee is not punishment]), nor is the court facilities fee (People v. Cortez (2010) 189 Cal.App.4th 1436, 1443-1444) and both may be imposed even though the count to which it attaches has been stayed.

  40. People v. Hunt (2013) 213 Cal.App.4th 13, the Second Appellate District, Division 5 held that when the trial court imposes and then suspends a felony sentence, a section 1202.4, subdivision (b)(1) restitution fine should be imposed, and a section 1202.44 probation revocation restitution fine should be imposed and then stayed.  The court should not  Impose and stay a parole revocation fine under section 1202.45 for parole restitution is improper in this type of probation grant.

  41. People v. Corrales (2013) 213 Cal.App.4th 696, the Second Appellate District, Division 5 held that the trial court erred in failing to impose the drug program fee (§ 11372.7, subd. (a), nor did it use the short hand approved in People v. Sharret (2011) 191 Cal.App.4th 859, 864, "plus penalty assessments." (See also People v. Voit (2011) 200 Cal.App.4th 1353, 1373.)  However, the matter was remanded for the court to make a determination, within the meaning of section 11372.7, subdivision (b), whether the defendant had the ability to pay.

  42. People v. McCullough (2013) 56 Cal.4th 589, the California Supreme Court  held that a $27017 jail booking fee, (Gov. Code §29550.2, subd. (a)) which the defendant contended that he had an inability to pay, is not reviewable on appeal absent a timely objection by the defendant during the sentencing hearing. 

  43. People v. Coleman (2013) 218 Cal.App.4th 353, the First Appellate District, Division 5 held that the trial erred when it improperly delegated to the probation department the determination whether the defendant had the ability to pay the  drug program fee within the meaning of section 11372.7, subdivision (a). (See People v. Corrales (2013) 213 Cal.App.4th 696.)  Reversal was required where a judicial finding of ability to pay could not be implied from the record, (Id., at p. 702), as the probation report did not recommend the defendant pay the fee, did not analyze his ability to pay, and stated defendant had no assets, was unemployed, and suffered from numerous health problems, including schizophrenia.

XIX. New Sentencing Hearing

A. Appellant May Get a Completely New Sentencing Hearing on Remand When the Previous Court Retires

  1. United States v. Sanders (9th Cir. 2005) 421 F.3d 1044, the Ninth Circuit Court of Appeal held that where the defendant was sentenced prior to Booker, and sentencing judge is not available to conduct a limited remand under United States v. Ameline (2005) 409 F.3d 1073, for the purpose of determining whether the sentence might have been different had guidelines been treated as advisory rather than mandatory, original sentence must be vacated and case remanded for a full resentencing hearing.

B. The Matter Must Be Remanded for a New Sentencing Hearing for the Trial Court to Change the Result

  1. People v. Lincoln REVIEW DISMISSED; formerly at: (2006) 144 Cal.App.4th 1016, the Second Appellate District, Division 7 held that the trial court exceeded its jurisdiction to change the sentence after the matter was remanded for the limited purpose of lifting the stay on assault convictions after the manslaughter convictions had been reversed.  Even though People v. Burbine (2003) 106 Cal.App.4th 1250 holds that a trial court has the right to consider the entire sentence and is not limited to striking illegal portions of it when it is remanded for resentencing, the Court of Appeal did not remand for that purpose.  The Court of Appeal remanded for a retrial on the manslaughter counts, and if the prosecution chose not to retry those counts, then the stays would be lifted on the assault counts; the Court of Appeal tied the hands so to speak of the trial court, and was not giving it discretion to resentence; therefore the trial court’s imposition of consecutive sentences for the assault counts, must be reversed.

  2. Greenlaw v. United States (2008) 554 U.S. 237, [171 L.Ed.2d 399, 128 S.Ct. 2559], the United States Supreme Court held that where district court erroneously sentenced the defendant to a term below the statutory minimum sentence and the defendant appealed, but the government neither appealed nor cross-appealed, the appellate court could not order an increase in defendant’s sentence.  Without exception, an appellee must file a cross-appeal to justify a remedy in favor of appellee.  In a “sentencing package case” involving multi-count indictments and a successful attack on some, but not all of the counts of conviction, an appellate court may vacate the entire sentence on all counts so that the trial court can reconfigure the sentencing plan.

C. Unauthorized Sentence

  1. People v. Ayers (2004) 119 Cal.App.4th 1007, the Second Appellate District, Division 7, held that the trial court’s erroneous failure to either double a subordinate prison term for second-striker or strike the prior-conviction finding with respect to that count (see People v. Nguyen (1999) 21 Cal.4th 197, 207), resulted in an “unauthorized sentence,” requiring reversal on appeal despite lack of objection in trial court.

  2. People v. Dial (2005) 130 Cal.App.4th 657, the First Appellate District, Division 2 held that  appellant cannot attack, on appeal from an underlying conviction, the taking and retention of samples under mandatory requirements of section 296, the DNA Act.  Further, under the Three Strikes Law, section 667, subd. (c), indicates, unless the court strike a prior, essentially pursuant to Romero, then the strike sentence must be imposed.  The Court of Appeal  failed to rule on the issue of whether the court could have “stayed” rather than strike the prior, pursuant to People v. Aubrey (1998) 65 Cal.App.4th 279, 283-285), since the issue was first raised at the time of the oral argument, and the parties had not had a chance to brief the issue. (See Kinney v. Vaccari (1980) 27 Cal.3d 348, 356-357, fn. 6.)  Additionally, it is clear that the defendant cannot be placed on probation, and be sentenced to state prison at the same time.  (See People v. Marks (1927) 83 Cal.App. 370, 376-377.)

  3. People v. Hiscox (2006) 136 Cal.App.4th 253, the First Appellate District, Division 3 held that where the defendant was charged with committing certain sexual offenses during a designated time period, which began prior to effective date of “One Strike” law (§ 667.61) November 30, 1994, and ended after that date, and where the prosecution did not prove that the offenses occurred after that date, sentencing under section 667.61 violated ex post facto clauses.  An ex post facto violation resulting in an unauthorized sentence may be raised on appeal even if the defendant failed to object.  (People v. Zito (1992) 8 Cal.App.4th 736, 741-742.)

  4. People v. Jordan (2006) 141 Cal.App.4th 309, the Sixth Appellate District held that the court erred in staying the second of two five-year serious felony enhancements within the meaning of section 667, subd. (a)(1).  Even though the defendant failed to object to the “sentence structure” when it was announced, the court, on remand, must restructure the sentence where the defendant did not agree in a plea bargain to condition his waiver of jury trial on court staying sentence enhancement.  (See People v. Buttram (2003) 30 Cal.4th 773, 789 [defendant had the right to argue for an appropriate individualized sentence within the constraints of the bargain, and as a result, he maintained his right to challenge the court’s exercise or lack thereof, of that discretion.])

  5. People v. Garcia (2007) 147 Cal.App.4th 913, the Sixth Appellate District held that, pursuant to People v. Howard (1997) 16 Cal.4th 1081, it was error for the court, who revoked probation and sentenced defendant to prison, to set aside a previous execution of sentence suspended sentence, wherein the prior court had ordered sex offender registration.  To do otherwise would promote forum shopping.  (See People v. Superior Court (Scofield) (1967) 249 Cal.App.2d 727, 734.)

  6. In re Renfrow (2008) 164 Cal.App.4th 1251, the Third Appellate District held that when a defendant receives a suspended prison term and probation, but then he violates probation, and the trial court revokes probation and determines the suspended prison term, it erred and imposed an “unauthorized” sentence when it omitted an applicable enhancement.  (See People v. Howard (1997) 16 Cal.4th 1081, 1088 [the court must order the exact sentence into effect].)  Therefore, it subsequently did not err by imposing an authorized prison term that exceeded the unauthorized and previously suspended term when it imposed the section 12022.7, subdivision (a) enhancement in addition to the previously imposed ADW.  The failure to impose or strike an enhancement is a legally unauthorized sentence, and is subject to correction.  (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)

D. Re-Sentencing Under Section 1170, Subdivision (D)

  1. People v. Torres (2008) 163 Cal.App.4th 1420, the Fifth Appellate District held that section 1170, subdivision (d), which provides that when a sentence is recalled, a trial court may resentence defendant as if defendant had not previously been sentenced, provided that the new sentence does not exceed the original sentence that is not unauthorized.  Here, since the defendant’s original sentence was illegal and required correction, but could be restructured to bring it within the limits of the original sentence, the restriction of section 1170, subdivision (d) still applied as it was not an unauthorized sentence that could not be corrected without exceeding the original 0sentence.  In other words, this was not a sentence that established unauthorized leniency.  (See People v. Mustaffa (1994) 22 Cal.App.4th 1305, 1311-1312.)

  2. People v. Blount (2009) 175 Cal.App.4th 992, the Fourth Appellate District, Division 1 held that the court did not err in failing to alter the length of sentence from that agreed upon as part of a negotiated disposition under section 1170, subdivision (d).  Section 1170, subdivision (d) does not provide the trial court with any broader discretion to impose sentence than that court possessed at initial sentencing and thus does not provide trial court with authority to override terms of a negotiated plea bargain and impose a different sentence than that agreed to by the parties. (See People v. Segura (2008) 44 Cal.4th 921, 930 [acceptance of the agreement binds the court to the agreement]; People v. Shelton (2006) 37 Cal.4th 759, 767 [a plea agreement is like a contract].)  The court may reject the agreement, but cannot alter it.

XX. Discretion to Set Custody Time in Department of Juvenile Justice (Formerly CYA)

  1. In re Sean W. (2005) 127 Cal.App.4th 1177, the First Appellate District, Division 2 held that the trial court erred in failing to take into account, in setting appellant’s maximum confinement time in the California Youth Authority, the 2003 amendment to Welfare and Institutions Code section 731, subd. (b), which granted to the juvenile court the discretion to set the maximum term of a California Youth Authority commitment at less than maximum term of confinement for adult convicted of same offense.  As a result of its failure to consider such a disposition, the court committed reversible error.