Opinion
B293967
06-09-2020
THE PEOPLE, Plaintiff and Respondent, v. DENNIS WAYNE HOHNSTEIN, Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
Order Denying Petition for Rehearing and Modifying Opinion
[No change in judgment] BY THE COURT:*
It is ordered that the petition for rehearing filed June 11, 2020, is denied and the opinion filed June 9, 2020 is modified as set forth below. There is no change in the judgment.
1. On page 3, delete the following sentence: "Likewise, this court's files do not contain a service copy of any such motion."
2. On page 3, replace the deleted sentence with the following text: "Counsel has provided this court
with neither a file-stamped copy of the letter nor a proof of service establishing that the letter was mailed to the superior court."/s/_________
*LAVIN, Acting P. J. /s/_________
EGERTON, J. /s/_________
EPSTEIN, J.
Retired Presiding Justice of the California Court of Appeal, Second District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. SA087935 APPEAL from a postjudgment order of the Superior Court of Los Angeles County, H. Jay Ford III, Judge. Dismissed and remanded with directions. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2014, defendant Dennis Wayne Hohnstein pled no contest to one count of felon in possession of tear gas—a canister of pepper spray—and was granted three years' probation. He did not appeal. Several years later, in 2018, defendant admitted violating probation. The court terminated probation and executed the previously-imposed sentence. On appeal from that order, defendant argues the court erred by failing to consider his ability to pay required fines and court fees. Because the issue is not properly before us, we dismiss the appeal and remand with directions to correct the abstract of judgment.
DISCUSSION
1. There is no evidence that defense counsel complied with Penal Code section 1237.2.
At defendant's July 30, 2014 sentencing hearing, the court imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $40 operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373), and imposed and stayed a $300 probation revocation restitution fine (§ 1202.44). Defendant asks us to strike these fines and fees under People v. Dueñas (2019) 30 Cal.App.5th 1157. Because counsel has not complied with section 1237.2, that claim is not cognizable in this appeal.
All undesignated statutory references are to the Penal Code.
In the opening brief, defense counsel refers to the amount of this fine, variously, as $300, $400, $600, and $1,500. Counsel is mistaken.
Section 1237.2 provides: "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 discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing." (See also People v. Alexander (2016) 6 Cal.App.5th 798.)
To be sure, that prerequisite does not apply when the appeal also presents other issues. (§ 1237.2; People v. Mendez (1999) 19 Cal.4th 1084, 1101.) But this is not such a case.
In her opening brief, counsel represented to this court: "On March 9, 2019, trial counsel wrote to the superior court pursuant to section 1237.2 regarding the fines and fees issue raised in this appeal." But the superior court's case file does not contain a motion to correct fines and fees. Likewise, this court's files do not contain a service copy of any such motion. Because appellate counsel does not appear to have complied with section 1237.2, defendant's challenge to the court's imposition of fines and fees must be dismissed without prejudice to any right he has to seek relief in the trial court.
On February 11, 2020, we notified the parties by letter that we intended to take judicial notice of the superior and appellate court case files in this matter. (Evid. Code, §§ 452, subd. (d), 459, subds. (a), (c).) We now take judicial notice of those records.
2. The court is directed to correct the abstract of judgment on remand.
We also note that although defendant contends he lacks the ability to pay the fines and fees imposed below, his briefs incorrectly identify the fines and fees the court actually imposed. It seems that rather than relying on the reporter's transcript or even the sentencing minute order, defense counsel relied on the abstract of judgment—and the abstract of judgment was wrong.
In a criminal case, the oral pronouncement of a sentence constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185; Mesa, at p. 471 [to the extent a minute order diverges from the sentencing proceedings it purports to memorialize, it is presumed to be the product of clerical error].) Accordingly, courts may correct clerical errors at any time, and appellate courts may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of sentence. (Mitchell, at pp. 185-188.)
In this case, the reporter's transcript and minute order of the July 30, 2014 sentencing hearing both indicate that the court imposed a $30 conviction assessment (Gov. Code, § 70373), a $40 operations assessment (§ 1465.8), and a $300 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a $300 probation revocation restitution fine (§ 1202.44).
Then, the court struck the fees. The court explained: "Defendant is a homeless transient, unfortunately, and that probably contributes to some of the issues that we have here, regrettably. He doesn't have the present ability to pay any of the fees. The fees are, therefore, deleted on the court's own motion." Thus, at the end of the sentencing hearing, defendant had been ordered to pay a total of $300—the restitution fine. The minute order accurately reflects that judgment.
On September 7, 2018, defendant admitted violating probation, and the court lifted the stay on execution of the suspended sentence. It also lifted the stay on the $300 probation revocation restitution fine. It did not impose any new fines or fees, however. The minute order accurately reflects the court's postjudgment order.
This was proper. Although the sentence was stayed, the restitution fine was not. (People v. Guillen (2013) 218 Cal.App.4th 975, 985-988.)
Nevertheless, the abstract of judgment states that at the September 7, 2018 hearing, defendant was ordered to pay a $30 conviction assessment, a $40 operations assessment, and a $300 restitution fine. This is inaccurate.
Because the abstract of judgment lists fees the court did not impose, it must be corrected to remove them. (See People v. Mitchell, supra, 26 Cal.4th at pp. 185-188 [discussing the importance of correcting inaccurate abstracts of judgment on appeal].) We order the court to do so upon remand.
DISPOSITION
The appeal is dismissed and the matter is remanded with directions to correct the errors in the abstract of judgment identified in section 2 of the opinion and to send a certified copy of the corrected abstract of judgment to the entity currently responsible for collecting defendant's court-ordered debt.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J. WE CONCUR:
EGERTON, J.
Retired Presiding Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.