Opinion
H044942
08-14-2019
THE PEOPLE, Plaintiff and Respondent, v. RAMON LARIOS LUCATERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR-15-00172)
Pursuant to the parties' plea agreement, Ramon Larios Lucatero pleaded no contest to a violation of Health and Safety Code section 11378 (possession for sale of methamphetamine) (count 2) committed in 2015 and admitted two prior prison term allegations. (See Pen. Code, § 667.5, subd. (b)) (§ 667.5(b)).) The trial court suspended imposition of sentence and placed defendant on probation. In July of 2017, after he repeatedly violated probation, defendant was sentenced to a three-year term, which consisted of a two-year middle term on count 2 and a one-year prior prison term enhancement. Defendant appeals from the judgment of conviction and from a postjudgment order entitled "Order Admitting to Probation" (postjudgment probation order), which was signed by both the court and defendant and filed on March 29, 2018. The postjudgment probation order purported to admit defendant to three years of formal probation and required defendant to pay various fines, fees, and penalty assessments and a surcharge (together charges) as conditions of probation.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal from the judgment, defendant seeks to challenge the trial court's initial probation order, entitled "Order Admitting to Probation" and filed on May 5, 2016 (hereafter prejudgment probation order). He contends that the trial court improperly ordered him to pay as conditions of probation: (1) a $45.78 "State Automation Fee" under Government Code section 68090.8 ; (2) a $4 "EMS Transport Fee" under Government Code section 76000.10 ; (3) a $400 fine, for which no statutory basis was stated; and (4) total penalty assessments of $1,389, for which no statutory bases were stated. Defendant asserts that as to a $50 criminal laboratory analysis fee (lab fee) and a $150 drug program fee (see Health & Saf. Code, §§ 11372.5, subd. (a), 11372.7, subd. (a)) that were imposed as conditions of probation, they were not subject to any penalty assessments because their primary purpose was not punishment. He asks this court to strike the conditions of probation requiring him to pay the "State Automation Fee," the "EMS Transport Fee," the $400 fine, and the penalty assessments of $1,389. Defendant also maintains that the total penalty assessments must be recalculated in any case because the court's calculations included the $400 fine, for which no statutory basis was stated. Defendant asks this court to remand the case with directions to amend the abstract of judgment.
Government Code section 68090.8, subdivision (b), provides that "[p]rior to making any other required distribution, the county treasurer shall transmit 2 percent of all fines, penalties, and forfeitures collected in criminal cases . . . into the State Trial Court Improvement and Modernization Fund . . . to be used exclusively to pay the costs of automated systems for the trial courts . . . ." (Italics added.)
The penalty described in the Emergency Medical Air Transportation Act (Gov. Code, § 76000.10) applies only to "every conviction for a violation of the Vehicle Code or a local ordinance adopted pursuant to the Vehicle Code, except parking offenses subject to Article 3 (commencing with Section 40200) of Chapter 1 of Division 17 of the Vehicle Code." (Id., subd. (c)(1).) Defendant was convicted of possession for sale of methamphetamine.
In issuing the prejudgment probation order, the trial court did not orally state on the record the statutory authorities for any of the charges that defendant was ordered to pay as conditions of probation. The written prejudgment probation order did not specify the statutory bases for the $400 fine or the multiple penalty assessments totaling $1,389. We do not see in the record any probation report or memorandum specifying the bases for those charges, upon which the trial court implicitly could have relied when it made its prejudgment probation order. (See People v. Hamed (2013) 221 Cal.App.4th 928, 939-940 (Hamed).) In People v. High (2004) 119 Cal.App.4th 1192 (High), an appellate court recognized that although "a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts." (Id. at p. 1200.) In resentencing defendant upon remand, the trial court must specify the statutory bases for all charges, whether carried forward from the prejudgment probation order or imposed at the time of resentencing, and the amount and statutory basis for each charge must be reflected in the amended abstract of judgment. (See Hamed, supra, at p. 940; High, supra, at p. 1200.)
Four cases relied upon by defendant in arguing that a lab fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (Id., § 11372.7, subd. (a)) are not subject to penalty assessments were disapproved in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz) "to the extent they are inconsistent with [the Supreme Court's] analysis and conclusion." (Id. at p. 1122, fn. 8.) Ruiz involved a different issue, namely whether those "fees" were punishment that applied to a conviction of conspiracy to transport a controlled substance in violation of Health and Safety Code section 11379, subdivision (a), pursuant to the statute making a criminal conspiracy subject to the same punishment that applied to the target felony (§ 182). (See Ruiz, supra, at pp. 1103-1104.) In that context, the Supreme Court found it "clear [that] the Legislature intended the fees at issue here [a lab fee and a drug program fee] to be punishment" (id. at p. 1122) despite the "fee" label. In his reply brief, defendant asserts that in Ruiz "the Supreme Court deliberately did not decide the penalty assessments issue" that he now raises. As to the proposed legislation relied upon by defendant in support of his argument, we note that the bill was never passed and is inactive. In any case, we do not resolve defendant's substantive argument because as explained below we conclude that the prejudgment probation order is not within the proper scope of review on appeal from the judgment of conviction, and the postjudgment probation order was in excess of the trial court's authority and jurisdiction.
On appeal from the judgment, defendant is not seeking to challenge the prejudgment probation order insofar as it required him to pay as conditions of probation a $300 restitution fine (§ 1202.4, subd. (b)), a $300 probation revocation restitution fine (§ 1202.44), the $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), the $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), and a $40 state surcharge (§ 1465.7, subd. (a)). At the time of sentencing, the trial court mentioned the first four charges, and three of them are reflected in the abstract of judgment.
Section 1202.4, subdivision (m), provides in part: "In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation."
Section 1202.44 applies "[i]n every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed." The probation revocation restitution fine becomes "effective upon the revocation of probation." (§ 1202.44.)
The abstract of judgment incorrectly omitted the $300 probation revocation restitution fine, which was due and payable, probation having been revoked. (See ante, fn. 7.) The abstract of judgment did not reflect the 20 percent state surcharge.
In this court, the People filed a motion to dismiss the appeal from the judgment on the ground that the prejudgment probation order was superseded by the postjudgment probation order and consequently the appeal is moot. In their appellate brief, however, the People also assert that the prior prison term enhancement was unauthorized and must be struck.
On appeal from the postjudgment probation order, defendant argues that the trial court erred in making that order by (1) twice imposing a $50 lab fee and (2) concluding the lab and drug program fees were subject to penalty assessments and the 20 percent state surcharge. (See Health & Saf. Code, §§ 11372.5, subd. (a), 11372.7, subd. (a); § 1465.7, subd. (a).) He asks this court to strike the allegedly duplicative $50 lab fee, all penalty assessments, and the 20 percent state surcharge of $50 and remand the matter to superior court to correct the abstract of judgment.
We asked the parties for supplemental briefing addressing issues related to the extent of the trial court's authority and jurisdiction to issue the postjudgment probation order. We also separately asked the parties for supplemental briefing on issues related to the parties' plea agreement and the imposition of the prior prison term enhancement.
We conclude that the prejudgment probation order, from which defendant did not appeal and which became final, is not properly before us for review on appeal from the judgment of conviction. However, we reverse the judgment and remand for resentencing, the People having strenuously maintained that (1) the five-year maximum possible sentence for defendant's negotiated plea—which included his admission of two one-year prior prison term enhancement allegations—was not "part and parcel" of, or integral to, the parties' plea agreement; (2) the decision of People v. Buycks (2018) 5 Cal.5th 857 (Buycks) retroactively applied to those prior prison term enhancements; and (3) under Buycks, the one-year prison term enhancement imposed on defendant was unauthorized. We further conclude that the trial court had no authority or jurisdiction to enter the postjudgment probation order after it had terminated probation, pronounced judgment and sentenced defendant, and remanded him to custody to serve his sentence. Accordingly, we reverse the postjudgment probation order.
I
Procedural History
By information filed on March 9, 2016, defendant was charged with four felonies, including a violation of Health and Safety Code section 11378 (count 2), on or about February 5, 2015. The information alleged as to each count two prior prison term enhancements (§ 667.5(b)). One enhancement was based on a 2010 conviction of violating former section 487, subdivision (c) (grand theft) (CR10-01503). The other was based on a 2005 conviction of violating former section 496, subdivision (a) (receiving stolen property) (CR04-0058).
At a hearing on April 8, 2016, the trial court considered whether under Proposition 47 certain convictions, including those underlying the prior prison term enhancement allegations, were reduced to misdemeanors. It appears that the court orally granted a request to reduce those prior convictions to misdemeanors. Later, at the same hearing, pursuant to a negotiated disposition, defendant pleaded no contest to violating Health and Safety Code section 11378 as charged in count 2 and admitted the two prior prison term enhancement allegations.
In this case, the parties' counsel stipulated that the preliminary hearing transcript provided a factual basis for defendant's negotiated plea, and defendant agreed with his attorney. Defendant admitted that in violation of section 667.5(b) he had suffered the two alleged prior convictions, served two prior prison commitments, and not remained free of prison custody for more than five years before committing the crime charged in count 2, to which he had just pleaded no contest.
The presentence probation report, which was filed on May 3, 2016, disclosed that defendant claimed to owe $100,000 in past child support. According to the report, defendant had been unemployed since 2015, had no assets, and received food stamps. The report recommended that the trial court find that defendant did not have the present ability to pay four fees or assessments: the presentence investigation and monthly probation supervision fees (§ 1203.1b), the court operations assessment (§ 1465.8 [$40 per conviction]), and the "Criminal Conviction Assessment," also known as the court facilities assessment (Gov. Code, § 70373 [$30 per felony conviction]) (hereafter court facilities assessment).
On May 5, 2016, the trial court suspended imposition of sentence, placed defendant on three years of formal probation, and issued the written prejudgment probation order, which was signed by the judge and defendant. Defendant was ordered to pay various charges as conditions of probation. However, based on the probation report, the court determined that defendant lacked the ability to pay the presentence investigation fee, the court operations assessment (§ 1465.8), and the court facilities assessment (Gov. Code, § 70373). The written prejudgment probation order did not order defendant to pay the presentence investigation fee or the monthly probation supervision fee (§ 1203.1b), the court operations assessment (§ 1465.8), or the court facilities assessment (Gov. Code, § 70373).
Mandatory language in section 1465.8 ("an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense") and in Government Code section 70373 ("an assessment shall be imposed on every conviction for a criminal offense") does not allow for judicial consideration of a defendant's ability to pay. However, in People v. Duenas (2019) 30 Cal.App.5th 1157, an appellate court held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The People did not challenge the trial court's decision not to order defendant to pay those amounts in connection with its grant of probation, and this issue is not before us.
Subsequently, defendant twice admitted alleged violations of probation. On July 21, 2017, the trial court impliedly revoked probation. The court sentenced defendant to a three-year term of imprisonment, consisting of a two-year term imposed on count 2 and a one-year prior prison term enhancement. (See Health & Saf. Code, § 11378; §§ 667.5(b), 1170, subd. (h)). The court did not suspend execution of any portion of the three-year term and order it to be served as a period of mandatory supervision.
In pronouncing judgment, the court indicated that defendant was subject to the $300 restitution fine (§ 1202.4, subd. (b)), the $300 probation revocation restitution fine (§ 1202.44) (which is not reflected in the abstract of judgment), a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), and a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)).
The abstract of judgment indicated that defendant was subject to certain "FINANCIAL OBLIGATIONS (plus any applicable penalty assessments)" but did not specify any penalty assessments. As we have indicated, the abstract reflected only three financial obligations—namely, the $300 restitution fine, the $50 lab fee, and the $150 drug program fees (See § 1202.4, subd. (b); Health & Saf. Code, §§ 11372.5, subd. (a), 11372.7, subd. (a)). (See ante, fn. 8; see post, fn. 11.)
After defendant appealed from the judgment and while this appeal was pending, counsel appointed to represent defendant on appeal in this court sent a letter to the trial court challenging the prejudgment probation order insofar as it imposed a $45.78 "State Automation Fee" pursuant to Government Code section 68090.8, a $4 "EMS Transport Fee" pursuant to Government Code section 76000.10, the $400 fine, and total penalty assessments of $1389. In her letter, appellate counsel maintained that (1) Government Code section 68090.8 did not authorize the imposition of a fee and (2) Government Code section 76000.10 did not apply to the crime of which defendant was convicted. Appellate counsel claimed that the penalty assessments were unauthorized because no statutory bases were stated and because the lab and drug program fees were not subject to penalty assessments. She also asserted that the $400 fine was unauthorized because it had no statutory basis and because it could not be justified under section 672's catchall fine provision since there was a separate catchall fine provision specifically applicable to defendant's crime contained in Health and Safety Code section 11372.5, subdivision (a), and it authorized "a fine in an amount not to exceed fifty dollars ($50)."
In response to the letter, a hearing was held on March 29, 2018, at which defendant and his trial counsel, John Klopfenstein, were present. Trial counsel asked the court whether defendant's county jail time could be applied to any fines. The trial court made the postjudgment probation order, which the court and defendant signed. The order required defendant to pay, as conditions of probation, a $300 restitution fine and a $300 probation revocation restitution fine (§§ 1202.4, subd. (b), 1202.44), a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), and a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)). The order also required defendant to pay, as conditions of probation, an entirely new $50 fine, implicitly under the catchall fine provision set forth in the second paragraph of subdivision (a) of Health and Safety section 11372.5, total penalty assessments of $678.75, and a 20 percent surcharge of $50. Unlike the prejudgment probation order, the postjudgment probation did not require defendant to pay a "State Automation Fee," an "EMS Air Transport Fee," or a $400 fine.
At the March 29, 2018 hearing, the trial court stated that it was basing the total penalty assessments and the 20 percent surcharge on a total base fine of $250—the sum of the $50 fine (Health & Saf. Code, § 11372.5, subd. (a), 2d ¶), the $50 lab fee (id., 1st ¶), and the $150 drug program fee. The court calculated the total penalty assessments using a multiplier without explaining the statutory bases for that multiplier. Typically, there are at least six separate penalty assessments and a state criminal surcharge levied upon the fines and penalties imposed for a criminal conviction: a state penalty assessment (§ 1464); a county penalty assessment (Gov. Code, § 76000, subds. (a), (e)); a state court construction penalty (id., § 70372); an emergency medical services [EMS] fund penalty (id., § 76000.5); a DNA fund penalty (id., § 76104.6); an additional DNA fund penalty (id., § 76104.7); and the 20 percent state criminal surcharge (§ 1465.7). (See Hamed, supra, 221 Cal.App.4th at p. 935.)
Defendant's trial counsel asked the court whether defendant's county jail time that he had already served could be applied so that defendant would not have to pay any fines. The matter was continued to April 6, 2018.
At the hearing on April 6, 2018, defendant, his appellate counsel, and his trial counsel were present. Trial counsel told the court that defendant was no longer in custody. Trial counsel asked the trial court to waive some of the imposed fines and fees "in lieu of [defendant's] time in county jail" but made clear that defendant did not wish to serve any additional jail time. Trial counsel reminded the court that defendant was not on probation and that the court had sent him to jail. The court did not credit any of defendant's custody time against the fines imposed.
Defendant filed a notice of appeal from the postjudgment probation order.
II
Discussion
A. Appeal from Judgment of Conviction
1. People's Motion to Dismiss
In a motion filed on April 2, 2018, the People asked this court to dismiss the appeal from the judgment as moot because the prejudgment probation order was superseded by the postjudgment probation order and therefore this court can provide no effectual or practical relief with respect to defendant's challenges to the earlier order. In their brief, the People reiterate that the appeal should be dismissed as moot.
As we explain below, the trial court had no authority or jurisdiction to issue the postjudgment probation order, and accordingly, it must be reversed. We will not dismiss the appeal on the ground that the prejudgment probation order was superseded. Further, the People have now raised the claim that the judgment is unauthorized in part and that the prior prison term enhancement must be struck.
Consequently, the appeal from judgment will not be dismissed as moot.
Moreover, this court in effect consolidated the appeals by filing them in the same appellate case number and ordering them considered together for the purposes of oral argument and decision.
2. Imposition of a Prior Prison Term Enhancement
The People assert that the one-year prior prison term enhancement must be struck because under Proposition 47 the trial court reduced to misdemeanors the convictions underlying both prior prison term enhancement allegations, which were admitted by defendant. In response to this court's request for supplemental briefing, the People have retracted their assertion that defendant could not challenge the trial court's acceptance of defendant's admissions of those allegations. They maintain that this case should be remanded for resentencing.
One of the two prior prison term enhancements was based on a grand theft conviction (§ 487, subd. (c)), and the other prior prison term enhancement was based on a conviction for receiving stolen property (§ 496, subd. (a)). Section 490.2 was added by Proposition 47, and section 496 was amended by Proposition 47. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 8 & 9, p. 72 <https://vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigrl.pdf> [as of August 8, 2019].) "[S]ection 490.2, subdivision (a), mandates misdemeanor punishment for a defendant who 'obtain[ed] any property by theft' where the property is worth no more than $950." (People v. Page (2017) 3 Cal.5th 1175, 1183.) As amended, section 496, subdivision (a), provides that "if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year" unless the defendant has one of the specified disqualifying prior convictions.
Defendant agrees with the People that the one-year prior prison term enhancement must be struck. Defendant indicates that he has already served his entire three-year sentence. Citing section 2900.5, defendant asks this court to direct the trial court on remand to apply any excess custody credit against his financial obligations.
"In November 2014, the voters passed Proposition 47, The Safe Neighborhoods and Schools Act, which reduced certain drug- and theft-related offenses from felonies or 'wobblers' to misdemeanors. Proposition 47 reclassified some offenses by amending the statutes that defined those crimes." (People v. Martinez (2018) 4 Cal.5th 647, 651.) "In other instances, Proposition 47 added new provisions to the Penal Code carving out a lesser crime from a preexisting felony [citation] or redefining how a term is understood throughout the California Codes [citation]." (Ibid.)
"Proposition 47 also created a mechanism for extending its benefits to criminal defendants who . . . had been sentenced before the initiative's passage. . . . [S]ection 1170.18, subdivision (f) provides: 'A person who has completed his or her sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.' If the offender meets the statutory criteria, 'the court shall designate the felony offense or offenses as a misdemeanor.' (Id., § 1170.18, subd. (g).)" (People v. Colbert (2019) 6 Cal.5th 596, 599-600, fn. omitted.) Section 1170.18, subdivision (k), states that " '[a] felony conviction that is recalled and resentenced . . . or designated as a misdemeanor . . . shall be considered a misdemeanor for all purposes, except that resentencing shall not permit that person to own, possess, or have in his or her custody or control a firearm or prevent his or her conviction under [various statutes prohibiting possession of a firearm under certain circumstances].' [Citation.]" (People v. Valenzuela (2019) 7 Cal.5th 415, 423 (Valenzuela).)
In this case, after the convictions underlying the two prior prison term enhancement allegations were reduced to misdemeanors under Proposition 47 but before defendant admitted those allegations, the trial court advised defendant as follows: "Now, [each of] those [underlying convictions has] already been reduced to a misdemeanor, but at the time you served a prison commitment, they were considered felonies and as such remain viable for the allegation of a prior prison commitment in violation of [section] 667.5(b), and . . . for each prison commitment that's found to be true under [section] 667.5(b) . . . you have an additional one-year exposure." More than two years later, the Supreme Court decided Buycks.
In Buycks, supra, 5 Cal.5th 857, which was filed on July 30, 2018, the California Supreme Court "considered the validity of three sentence enhancements or criminal convictions after the [three] defendants to whom they pertained had secured the reduction of related felony convictions to misdemeanors through the Proposition 47 petition process." (Valenzuela, supra, 7 Cal.5th at p. 423.) As to one of those defendants, the Supreme Court addressed "whether Proposition 47 requires the dismissal of a one-year sentencing enhancement for having served a prior prison term (§ 667.5, subd. (b)) when the felony underlying that prior prison term has been reduced to a misdemeanor under section 1170.18." (Buycks, supra, at p. 871.) The court determined that "section 1170.18, subdivision (k), may affect the validity of enhancements when the underlying felony has been reduced under Proposition 47" (id. at p. 896) and that because this particular defendant's judgment was "not final when Proposition 47 took effect, the Estrada [retroactivity] rule applies to strike her section 667.5, subdivision (b) prior felony prison term enhancement." (Ibid.)
In Buycks, the California Supreme Court concluded that where a nonfinal judgment contains a one-year prior prison term enhancement (§ 667.5(b)), "Proposition 47 and the Estrada rule authorize striking that enhancement if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure." (Buycks, supra, 5 Cal.5th at p. 888.) The court approved decisions interpreting the phrase "misdemeanor for all purposes" in section 1170.18, subdivision (k), to mean that "those who successfully obtain resentencing of their felony convictions to misdemeanors under Proposition 47 may not be subsequently subject to a felony-based enhancement for that reduced conviction. [Citations.]" (Buycks, supra, at p. 879, fn. 7.) The court disapproved a case holding that section 1170.18, subdivision (k), "alter[ed] only the status of felony convictions, not the fact that the defendant has served a qualifying prior felony prison term for purposes of a section 667.5, subdivision (b) enhancement." (Buycks, supra, at p. 889, fn. 13.)
The Supreme Court held in Buycks: "[I]f the 'felony conviction that is recalled and resentenced . . . or designated as a misdemeanor' conviction becomes 'a misdemeanor for all purposes,' then it can no longer be said that the defendant 'was previously convicted of a felony' [citations], which is a necessary element for imposing the section 667.5, subdivision (b) enhancement. Instead, 'for all purposes,' it can only be said that the defendant was previously convicted of a misdemeanor." (Buycks, supra, 5 Cal.5th at p. 889.) "Proposition 47's directive that a resentenced or redesignated offense 'shall be considered a misdemeanor for all purposes' (§ 1170.18, subd. (k)) applie[s] both prospectively and in cases in which the judgment was not yet final at the time the initiative was approved by the electorate." (Valenzuela, supra, 7 Cal.5th at p. 424.)
In response to our request for supplemental briefing, the People adamantly assert that the five-year maximum possible sentence, which included two one-year prior prison term enhancements, was not "part and parcel" of, or integral to, the parties' plea agreement. Defendant states that "the parties' agreement reserved any challenge to the sentence ultimately imposed, which was not part and parcel [of] the plea agreement." The People contend that the parties' plea agreement was "not insulated from future changes in the law," citing Harris v. Superior Court (2016) 1 Cal.5th 984, 991 (Harris), and that Buycks applies under the general rule that judicial decisions apply retroactively.
In Harris, supra, 1 Cal.5th at page 990, the California Supreme Court reiterated California's general rule, stated in Doe v. Harris (2013) 57 Cal.4th 64, 66: "[A] plea agreement will be ' "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . ." ' [Citation.]" In Harris, the Supreme Court stated that "[a]s [it had] explained in Doe v. Harris, supra, 57 Cal.4th at page 66, entering into a plea agreement does not insulate the parties 'from changes in the law that the Legislature [or the electorate] has intended to apply to them.' (Italics added.)" (Harris, supra, at p. 991.) Of course, Proposition 47 was approved by the voters before the parties entered their plea agreement and defendant admitted the prior prison term enhancement allegations.
But " '[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.' [Citations.] This is why a judicial decision generally applies retroactively. [Citations.]" (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 474.) A judicial decision that does not establish a new rule "simply becomes part of the body of case law of this state, and under ordinary principles of stare decisis applies in all cases not yet final." (People v. Guerra (1984) 37 Cal.3d 385, 399 (in bank).) It is well settled that " '[a]s a matter of normal judicial operation, even a non-retroactive decision [i.e., one that cannot serve as a basis for collateral attack on a final judgment] ordinarily governs all cases still pending on direct review when the decision is rendered.' (People v. Rollins (1967) 65 Cal.2d 681, 685, fn. 3.)" (Id. at p. 400.)
Accordingly, in light of the parties' mutual understanding of their plea agreement and Buycks, we will remand for resentencing. In resentencing, the trial court shall consider whether defendant has excess custody time and whether and to what extent defendant is entitled to credit against his outstanding fines and financial obligations under applicable law.
3. Defendant's Challenges to the Prejudgment Probation Order
On appeal, defendant raises no challenges to the judgment. We asked the parties to discuss in supplemental briefing any authority that permitted defendant to attack the prejudgment probation order on appeal from the judgment. We conclude that defendant's claims concerning the prejudgment probation order are not cognizable.
First, in general, the forfeiture rule applies to challenges to the fees imposed when the court grants probation or imposes sentence. (See People v. Aguilar (2015) 60 Cal.4th 862, 864 [defendant forfeited challenges to probation-related fees/costs and appointed counsel fees]; see also People v. Avila (2009) 46 Cal.4th 680, 729 [defendant forfeited argument that $10,000 restitution fine imposed under former section 1202.4 without considering his ability to pay was an unauthorized sentence]; People v. Welch (1993) 5 Cal.4th 228, 236 ["Traditional objection and [forfeiture] principles encourage development of the record and a proper exercise of discretion in the trial court"].)
Second, the prejudgment probation order was appealable but defendant did not appeal from that order. An order granting probation is "deemed to be a final judgment" within the meaning of section 1237 for the purpose of taking an appeal. (§ 1237, subd. (a); see People v. Howard (1997) 16 Cal.4th 1081, 1087 (Howard).) A defendant ordinarily must file a notice of appeal from an order granting probation within 60 days after it is made. (See Cal. Rules of Court, rule 8.308(a).) Further, defendant did not before judgment seek modification of any of the conditions of probation requiring his payment of various charges and then appeal from any adverse ruling.
"In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citations.] Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation. [Citations.]" (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
It is our conclusion that the prejudgment probation order is not properly before us for review on appeal from the judgment of conviction. However, nothing precludes the trial court from striking any charge that was unauthorized as a matter of law. (See People v. Scott (1994) 9 Cal.4th 331, 354 ["a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case"].) B. Appeal from the Postjudgment Probation Order
Defendant asserts that this case must be remanded with directions for the trial court to identify in the abstract of judgment each fine and fee imposed and the underlying statutory authority. We leave it to the trial court to address at resentencing whether any mandatory charges must be imposed on defendant. (See ante, fns. 4 & 11; see also Couzens et al., Sentencing California Crimes (The Rutter Group 2018) Appendix 17A, pp. 17-27 to 17-81.) As the People suggest, upon remand the trial court should confirm whether San Benito County Board of Supervisors had elected to levy an EMS fund penalty applicable to defendant's conviction. (See Gov. Code, § 76000.5, subd. (a)(1).)
Defendant appeals from the postjudgment probation order, which was filed while defendant's appeal from the judgment was pending in this court and long after the trial court had revoked his probation, pronounced judgment, and remanded him to custody to serve his sentence. We asked the parties to address in supplemental briefing whether the trial court had authority or jurisdiction to issue the postjudgment probation order. Among other questions, we asked whether the trial court had jurisdiction under section 1237.2 to correct alleged errors that were not in the judgment from which defendant was appealing. We conclude it did not.
As a general rule, "an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court [citations]." (Anderson v. Superior Court (1967) 66 Cal.2d 863, 865.) But "where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal" (§ 1237.2), "the trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for correction." (Ibid., italics added.) Defendant's appeal from the judgment of conviction was his only appeal pending when the trial court issued its postjudgment probation order.
Section 1237.2 provides in full: "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. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for correction. This section only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal."
Defendant's appeal from the judgment presented no issues concerning "the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs" (§ 1237.2) in the judgment. As indicated, defendant's claims of error concerning the prejudgment probation order were not cognizable on appeal from the judgment. Section 1237.2 did not provide continuing plenary jurisdiction to issue a new, superseding order to ostensibly correct errors in the prejudgment probation order that was final.
We also asked the parties whether the postjudgment probation order should be reversed because the trial court lacked authority or jurisdiction to make such order. We now conclude that the order must be reversed.
"During the probationary period, the court retains jurisdiction over the defendant [citations], and at any time during that period the court may, subject to statutory restrictions, modify the order suspending imposition or execution of sentence (§ 1203.3)." (Howard, supra, 16 Cal.4th at p. 1092.) The trial court's statutory authority to modify probation applies only during the term of probation. (See § 1203.3, subd. (a); see also In re Daoud (1976) 16 Cal.3d 879, 882.) "During the probation period, the court retains the power to revoke probation and sentence the defendant to imprisonment." (People v. Chavez (2018) 4 Cal.5th 771, 782.) Once the period of probation expires, however, the trial court "may no longer revoke or modify its order granting probation. [Citations.]" (Id. at pp. 782-783, id. at p. 784 [holding that "the court acts in excess of the jurisdiction permitted by the statute when it purports to effectuate a dismissal [pursuant to section 1385] after the probation period has passed"].) In this case, once the trial court revoked probation and sentenced defendant to a three-year term of imprisonment, the court no longer had authority or jurisdiction to make an entirely new order of probation.
"Upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. . . . [T]he person shall be delivered over to the proper officer to serve his or her sentence, less any credits herein provided for." (§ 1203.2, subd. (c).)
Further, "[u]nder the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. [Citations.] Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant. [Citation.]" (People v. Karaman (1992) 4 Cal.4th 335, 344 (Karaman).) However, " '[a] judge imposing a prison sentence upon revocation of probation will have the power granted by section 1170[, subdivision] (d) to recall the commitment on his or her own motion within 120 days after the date of commitment . . . .' [Citation.]" (Howard, supra, 16 Cal.4th at p. 1093.) Section 1170, subdivision (d), "allows a recall of sentence at the postcommitment stage and constitutes 'an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun. [Citations.]' [Citations.]" (Howard, supra, at p. 1093; see Karaman, supra, at p. 344 ["In a criminal case, the execution of a judgment of conviction is the process of carrying the judgment into effect. [Citation.]"].) The trial court had already lost its jurisdiction to resentence defendant when it issued the postjudgment probation order.
The Supreme Court held in Karaman, a case not involving probation revocation, that "where the sentence is to a term of imprisonment, the trial court retains jurisdiction, during the period a stay is in effect and at any time prior to execution of the sentence, to reconsider the sentence and vacate it or impose any new sentence which is not greater than the initial sentence, just as it may do so on its own motion pursuant to section 1170, subdivision (d), within 120 days after the court has committed the defendant to the prison authorities." (Karaman, supra, 4 Cal.4th at p. 352.) In Howard, the Supreme Court limited Karaman's holding to nonprobation situations comparable to the situation in Karaman and indicated that a trial court may "reconsider and reduce a previously imposed but briefly stayed sentence not imposed as part of a grant of probation." (Howard, supra, 16 Cal.4th at p. 1095.)
In addition, the postjudgment probation order did not merely correct or strike an unauthorized charge or clerical error in the prejudgment probation order. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044 ["it is settled that an unauthorized sentence is subject to correction despite the circumstance that an appeal is pending"]; Karaman, supra, 4 Cal.4th at pp. 345-346, fn. 11 ["Judicial error . . . in rendering judgment cannot be corrected by the trial court once jurisdiction has expired, unless the judgment is void on the face of the record"]; 349, fn. 15 [an unauthorized sentence "may be increased [to the mandatory term] even after execution of the sentence has begun"]; In re Candelario (1970) 3 Cal.3d 702, 705 ["a court has the inherent power to correct clerical errors in its records"]; cf. People v. Mendez (2019) 7 Cal.5th 680, 716.) In the postjudgment order, the court imposed an entirely new fine and exercised its discretion as to its amount under the second paragraph of subdivision (a) of Health and Safety Code section 11372.5 ("a fine in an amount not to exceed fifty dollars ($50)") and then calculated the total penalty assessments and the state surcharge based in part on this new fine.
The trial court acted in excess of its authority and jurisdiction when it issued the postjudgment probation order. Accordingly, the order must be reversed.
DISPOSITION
The judgment is reversed for resentencing consistent with this opinion.
The postjudgment "Order Admitting to Probation," filed March 29, 2018, is reversed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.