Opinion
A164881
09-15-2022
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR JONES, Defendant and Appellant.
NOT TO BE PUBLISHED
(City &County of San Francisco Super. Ct. No. 224164)
GOLDMAN, J.
Defendant Arthur Jones appeals from his conviction after pleading guilty to one count of attempted murder and one count of assault. Appointed counsel has filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 in which no issues were raised. After reviewing the record, we have discovered a discrepancy between the trial court's oral pronouncement of judgment waiving all fines and fees and the sentencing minute order and abstract of judgment with regard to such fines and fees. We shall order the clerk of the superior court to correct the sentencing minute order and the abstract of judgment to conform with the court's oral pronouncement of judgment. In all other respects, the judgment is affirmed.
BACKGROUND
Jones was charged by information with premeditated and deliberate attempted murder (Pen. Code, §§ 187, subd. (a), 664); battery causing serious bodily injury (§ 243, subd. (d)); and assault with a deadly weapon (§ 245, subd. (a)(1)). As to the attempted murder and battery counts, the information alleged under section 12022, subdivision (b)(1) that defendant personally used a deadly weapon. As to the attempted murder and assault counts, the information alleged under section 12022.7, subdivision (a) that defendant personally inflicted great bodily injury upon the victim. Finally, the information alleged that defendant had seven prior convictions for serious felonies under sections 667, 667.5, and 1170.12.
All further undesignated statutory references are to the Penal Code.
During the pendency of the case, Jones made three motions to have different counsel appointed. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden). All three were denied.
However, the court granted a motion to relieve counsel pursuant to People v. McKenzie (1983) 34 Cal.3d 616, 630, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.
Jones ultimately pleaded guilty to attempted murder, and admitted the deadly weapon enhancement and one prior strike in exchange for the dismissal of all other counts and allegations. Jones also pleaded guilty to an assault with force likely to cause great bodily injury, which was charged in a different case. The negotiated sentence was 15 years in state prison.
Case number 18004734.
At the sentencing hearing, trial counsel advised the court that Jones was indigent. And on that basis, counsel requested that Jones's fines and fees be waived. The court responded, "They will be waived." Pursuant to the negotiated sentence, the trial court imposed the middle term of seven years on the attempted murder conviction, which was doubled to 14 years as a result of the prior strike, and a consecutive one-year sentence for the deadly weapon enhancement. In addition, the court imposed a concurrent two-year sentence for the assault conviction in case No. 18004734, which was deemed served. The court awarded 3,008 days of presentence custody credits. Jones's aggregate sentence was 15 years in state prison.
Jones timely appealed, purporting to challenge both the validity of his plea and sentencing. Although he requested a certificate of probable cause from the trial court, the record reflects that he did not obtain one.
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Jones was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from Jones.
In his request for certificate of probable cause, Jones asserted that he was challenging the validity of his guilty pleas based on ineffective assistance of counsel. Having failed to obtain a certificate of probable cause, Jones cannot raise grounds challenging the validity of the plea. (§ 1237.5, Cal. Rules of Court, rule 8.304(b).) Accordingly, our review is limited to issues arising after entry of his guilty pleas.
During our independent review of the record, we discovered the trial court's oral pronouncement at sentencing is not accurately reflected in the sentencing minute order and abstract of judgment. The reporter's transcript of the sentencing hearing shows the court "waived" all fines and fees based on defendant's indigency. The sentencing minute order, however, reflects that the following fines and fees were imposed and "stayed": (1) a $300 restitution fine (§ 1202.4) and a corresponding parole revocation restitution fine (§ 1202.45); (2) a $40 court operations assessment (§ 1465.8, subd. (a)(1)) per count; (3) a $30 immediate critical needs (criminal conviction) assessment per felony or misdemeanor count (Gov. Code, § 70373); and (4) a $35 immediate critical needs (criminal conviction) assessment per infraction count (Gov. Code, § 70373). The abstract of judgment reflects that these fines and fees were imposed and not otherwise stayed.
The abstract of judgment does not include the $35 immediate critical needs (criminal conviction) assessment per infraction.
Ordinarily, where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Here, however, the discrepancy involves mandatory restitution and parole revocation restitution fines. (§§ 1202.4, subd. (b), 1202.45.) A restitution fine under section 1202.4 is mandatory unless the court "finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).) Here, the trial court did not impose the restitution fines in its oral pronouncement but also did not state on the record its reasons for not imposing them. The prosecution did not object; thus, any objection to their omission is waived. (People v. Tillman (2000) 22 Cal.4th 300, 302-303.)
As to the court operations (§ 1465.8) and criminal conviction (Gov. Code, § 70373) assessments, the applicable statutes are silent as to whether a defendant's ability to pay may or may not be considered. While at least one court has held the fees to be mandatory (see People v. Woods (2010) 191 Cal.App.4th 269, 272), other courts, including this Division, have held that constitutional protections make their imposition subject to a determination of the defendant's ability to pay. (See, e.g., People v. Cowan (2020) 47 Cal.App.5th 32, 46, review granted June 17, 2020, S261952 [Eighth Amendment's protection against excessive fines prohibits the imposition of these assessments when the trial court determines that the defendant lacks the ability to pay]; People v. Duenas (2019) 30 Cal.App.5th 1157, 1168-1169 [reaching same conclusion based on due process].) Here, defense counsel asked the court to waive the assessments based on Jones's indigency, and in response the court stated, without objection by the People, "They will be waived." We conclude that the court at least impliedly found that Jones lacked the ability to pay the assessments, and based on our review of the information provided in the probation report, this finding is supported by substantial evidence. We therefore see no error in the court's oral pronouncement, and it must control over the minute order and the abstract of judgment.
Accordingly, we will order the trial court to correct the minutes and abstract of judgment to strike: (1) the $300 restitution fine (§ 1202.4) and the corresponding parole revocation restitution fine (§ 1202.45); (2) the $40 court operations assessment (§ 1465.8, subd. (a)(1)) per count; (3) the $30 immediate critical needs (criminal conviction) assessment per felony or misdemeanor count (Gov. Code, § 70373); and (4) the $35 immediate critical needs (criminal conviction) assessment per infraction count (Gov. Code, § 70373).
Having undertaken an examination of the entire record, including the sealed transcripts from defendant's Marsden motions, we find no arguable error that would result in a disposition more favorable to Jones.
DISPOSITION
The sentencing minute order and abstract shall reflect that the sentencing court waived all fines and fees in this matter. The superior court is directed to issue an amended sentencing minute order and amended abstract of judgment consistent with this order, and to then forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: STREETER, Acting P.J. BROWN, J.