People v. Moreno CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN398370
- Trial judge
- Carlos O. Armour
- Outcome
- remanded — Remanded with instructions.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Cynthia Aaron, William S. Dato
Analysis
The trial court sentenced Moreno to an upper-term prison term following probation revocation, imposed a criminal justice administrative fee, and issued an abstract of judgment that did not reflect the oral stay of fines and fees. The Court of Appeal remanded for resentencing under Senate Bill 567, ordered the fee vacated, and directed correction of the abstract of judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of upper-term sentence“because there was no middle-term presumptive sentence requirement at the time of sentencing, we cannot know whether the trial court viewed the previous probation performance as an aggravating factor under the current sentencing requirements.” | de novo | error | agree with court The appellate court correctly identified that the trial court's sentencing decision was made under the old discretionary standard of Penal Code section 1170, which did not include the middle-term presumption created by Senate Bill 567. Because the record did not explicitly state that the court relied on specific aggravating factors to justify the upper term under the new statutory framework, the appellate court properly remanded to allow the trial court to exercise its discretion in light of the new law, rather than affirming the sentence based on the Attorney General's post-hoc argument about probation performance. |
Imposition of criminal justice administrative fee“We accept the Attorney General’s concession, and we will order that portion of the judgment vacated.” | de novo | error | agree with court The appellate court correctly applied Assembly Bill 1869, which repealed the authority to impose the criminal justice administrative fee and made unpaid balances unenforceable. By accepting the Attorney General's concession that the statute applies retroactively to this non-final judgment, the court properly ordered the vacatur of the fee, aligning with the legislative intent to eliminate this specific cost. |
Abstract of judgment discrepancy“The abstract of judgment does not match the oral pronouncement, and it must be corrected.” | de novo | error | agree with court The appellate court correctly applied the well-established principle that the oral pronouncement of judgment controls over the written abstract when there is a discrepancy. Since the trial court orally stayed all fines and fees pending an ability-to-pay hearing but the abstract listed them as imposed without that stay, the court properly directed the trial court to correct the abstract to conform to the oral pronouncement. |
Authorities
- relied: People v. Zackery (2007) 147 Cal.App.4th 380 — Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.
- relied: People v. Mitchell (2001) 26 Cal.4th 181 — A court has inherent power to correct an abstract of judgment to accurately reflect the oral pronouncement.
- relied: People v. Culpepper (1994) 24 Cal.App.4th 1134 — Supports the inherent power to correct an abstract of judgment to reflect the oral pronouncement.
- relied: People v. Donan (2004) 117 Cal.App.4th 784 — Supports the inherent power to correct an abstract of judgment to reflect the oral pronouncement.
The appellate opinion: sound — The opinion is sound because it correctly applies the retroactivity of Senate Bill 567 to a non-final judgment and properly identifies the need for resentencing to ensure the trial court exercises its discretion under the new middle-term presumption. It also correctly applies the oral pronouncement rule to correct the abstract of judgment and accepts the concession regarding the vacatur of the administrative fee.
How this analysis was made · dispute it
unusual dispositionAfter Oscar Moreno pled guilty to grand theft and two misdemeanors and repeatedly violated probation, the San Diego Superior Court revoked probation and imposed a three-year upper-term sentence plus fines, fees, and a Government Code section 29550 criminal justice administration fee, with all fines and fees orally stayed pending an ability-to-pay hearing. The Court of Appeal vacated the sentence and remanded for resentencing under Senate Bill 567's new middle-term presumption, directed the trial court to vacate the unpaid portion of the section 29550 fee under Assembly Bill 1869, and ordered the abstract of judgment corrected to reflect the oral stay of fines and fees.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Abstract of judgment listing fines, fees, and assessments without reflecting the trial court's oral pronouncement that all fines, fees, and costs were stayed pending an ability-to-pay hearing“The abstract of judgment does not match the oral pronouncement, and it must be corrected.” | de novo | error (procedure) | agree with court The court did not state a standard, but the question whether the abstract conforms to the oral pronouncement is a legal one. It correctly applied People v. Mitchell and People v. Zackery, which hold the oral pronouncement controls and the abstract may be corrected. The Attorney General conceded the discrepancy. The court also reasonably rejected the AG's section 1202.4 argument by noting the stay merely delayed imposition rather than permanently excusing the $300 minimum fine, though it did not cite People v. Dueñas or address whether an ability-to-pay hearing on a minimum restitution fine is proper at all. |
Imposition of a $154 criminal justice administration fee under Government Code section 29550“Moreno argues, and the Attorney General agrees, that Assembly Bill 1869 applies retroactively. We accept the Attorney General’s concession, and we will order that portion of the judgment vacated.” | de novo | error (statutory interpretation) | agree with court The fee was lawful when imposed, but Assembly Bill 1869 repealed the authority for it and added Government Code section 6111, which makes any unpaid balance uncollectible and requires that portion of the judgment be vacated. The court's disposition vacating only the balance unpaid as of July 1, 2021 tracks the statutory text. The court relied on the Attorney General's concession rather than independent analysis and cited no case law, but the statute's language is explicit and the result is correct. |
Imposition of the three-year upper-term sentence on the grand theft count without any admitted or jury-found aggravating circumstance“we cannot know whether the trial court viewed the previous probation performance as an aggravating factor under the current sentencing requirements.” | de novo | error (other) | agree with court Senate Bill 567 amended section 1170, subdivision (b) to make the middle term presumptive and to require that aggravating facts be stipulated to or found true beyond a reasonable doubt; the Attorney General conceded retroactivity because the judgment was not final. The court's decision to remand rather than deem the error harmless based on Moreno's admitted probation violations is defensible, since the trial court never identified any aggravating factor under the new framework and the unsatisfactory-probation factor (rule 4.421(b)(5)) is not a prior conviction provable by certified record under subdivision (b)(3). However, the court did not cite In re Estrada for the retroactivity principle and did not engage the harmless-error analysis the Attorney General's argument invited, which other published decisions (including this division's own People v. Lopez) had articulated before this opinion issued. |
Authorities
- relied: People v. Mitchell (2001) 26 Cal.4th 181 — The oral pronouncement of judgment controls over the abstract, and a court has inherent power to correct clerical errors in the abstract to conform to the oral pronouncement.
- relied: People v. Zackery (2007) 147 Cal.App.4th 380 — Where the abstract of judgment or minute order conflicts with the oral pronouncement of judgment, the oral pronouncement controls.
- relied: People v. Culpepper (1994) 24 Cal.App.4th 1134 — Appellate court may order correction of an abstract of judgment to reflect the sentence actually pronounced.
- relied: People v. Donan (2004) 117 Cal.App.4th 784 — Courts have authority to correct an abstract of judgment that does not accurately reflect the oral pronouncement of sentence.
- missed: In re Estrada (1965) 63 Cal.2d 740 — Ameliorative changes in criminal law apply retroactively to all judgments not yet final on the statute's effective date absent a contrary legislative indication; this is the foundation for applying Senate Bill 567 and Assembly Bill 1869 retroactively, which the court accepted only by concession.
- missed: People v. Lopez (2022) 78 Cal.App.5th 459 — Sets out the harmless-error framework for upper-term sentences imposed before Senate Bill 567, asking whether a jury would have found the aggravating factors beyond a reasonable doubt and whether the trial court would have imposed the upper term under the new law; the court remanded without addressing this framework despite the Attorney General's harmlessness argument.
The appellate opinion: sound with gaps — The opinion reaches defensible results on all three issues, correctly applying Mitchell and Zackery to the abstract discrepancy and following the plain text of Assembly Bill 1869 and Senate Bill 567, with the Attorney General conceding most points. It skips supporting authority on retroactivity (Estrada) and does not engage the published harmless-error framework for Senate Bill 567 claims that the Attorney General's probation-performance argument squarely raised, instead remanding on the bare observation that it cannot know what the trial court would have done.
Opinion
Filed 8/15/22 P. v. Moreno CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079159
Plaintiff and Respondent, v. (Super. Ct. No. SCN398370)
OSCAR MORENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Remanded with instructions. Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent. Oscar Moreno pled guilty to felony child abuse, grand theft of personal property, and unlawful possession of methamphetamine. The court stayed imposition of sentence and placed him on probation. After Moreno later admitted to four separate probation violations, the court sentenced him to an upper-term prison sentence and imposed several fines, fees, and assessments, which were stayed pending an ability to pay hearing. Moreno contends that the criminal justice administration fee (Gov. Code, § 29950) must be vacated, that the abstract of judgment must be corrected to reflect the oral pronouncement of judgment, and that the matter should be remanded for resentencing in light of Senate Bill No. 567 (Senate Bill 567) (Stats. 2021, ch. 731, § 1.3, amending 1170, subd. (b)), which created a presumptive mandate for a middle-term sentence. We agree with Moreno, and we will remand the matter for resentencing in light of Senate Bill 567. We will also direct the court to vacate the criminal justice administration fee that remains unpaid as of July 1, 2021 and correct the abstract of judgment to conform with the oral pronouncements. I. FACTUAL AND PROCEDURAL BACKGROUND On March 27, 2019, the People charged Moreno with felony child abuse (Pen. Code,1 § 273a, subd. (a); count 1), grand theft of personal property (§ 487, subd. (a); count 2), and possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 3).2 On April 5, 2019, at the People’s request, the trial court amended the complaint to add misdemeanor child endangerment (§ 273a, subd. (b); count 4) and misdemeanor unlawful possession of methamphetamine (Health & Saf. Code, § 11377; count 5).
1 Statutory references are to the Penal Code unless otherwise specified.
2 The details of the underlying crimes are not relevant to this appeal. 2 Moreno pled guilty to grand theft (count 2), misdemeanor child endangerment (count 4), and misdemeanor unlawful possession of methamphetamine (count 5). The court dismissed the remaining charges pursuant to the plea agreement. On May 2, 2019, the court stayed imposition of sentence and granted four years of probation. It imposed a restitution fine (§ 1202.4, subd. (b)), a court operations assessment (§ 1465.8); a conviction assessment (Govt. Code, § 70373); and a criminal justice administrative fee (Id. at § 29550). It ordered those fines and fees stayed pending an ability to pay hearing. Moreno subsequently admitted he violated the terms of his probation. The court reinstated Moreno’s probation and suspended execution of a three- year upper-term sentence. Moreno violated probation again. The court revoked probation and imposed the three-year upper term sentence for count 2, along with two concurrent 180-day terms on counts 4 and 5. The abstract of judgment includes a restitution fine of $300 (§ 1202.4, subd. (b)), court operations assessment of $120 (§ 1465.8), a conviction assessment of $90 (Gov. Code, § 70373), and a criminal justice administrative fee of $154 (Gov Code., § 29550). Moreno timely appealed. II. DISCUSSION A. Abstract of Judgment “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. Zackery (2007) 147 Cal.App.4th 380, 385, citing People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) A court has inherent power to correct an abstract of judgment to accurately reflect the 3 oral pronouncement. (See Mitchell, at pp. 187-188; see also People v. Culpepper (1994) 24 Cal.App.4th 1134, 1138-1139; People v. Donan (2004) 117 Cal.App.4th 784, 786.) Moreno contends the abstract of judgment does not conform to the court’s oral pronouncement that all fines and fees are stayed pending an ability to pay hearing. The Attorney General agrees that there is a discrepancy that must be corrected. The Attorney General separately argues Moreno is not entitled to an ability to pay hearing as to the section 1202.4 restitution fine because the court was required to impose the fine in an amount not less than $300 unless it found compelling and extraordinary reasons for not doing so, and none of those were stated on the record. At sentencing, the court stated that “all fines, fees and costs are stayed pending an ability to pay hearing.” The minutes likewise reflect the court’s statement that the fines, fees, and costs were stayed. The court never revoked the stay, even when it revoked Moreno’s probation. It did not permanently stay the $300 restitution fine; it merely delayed its imposition to the time when it holds an ability to pay hearing. The abstract of judgment does not match the oral pronouncement, and it must be corrected. B. Criminal Justice Administration Fee Assembly Bill 1869 (Stats. 2020, ch. 92, § 11) (Assembly Bill 1869) repealed the authority of the court to impose a criminal justice administrative fee, effective July 1, 2021. It also added Government Code section 6111, subdivision (a), which makes any unpaid balance of a court- imposed cost under Government Code section 29550 unenforceable and 4 uncollectible and requires any portion of a judgment imposing that cost to be vacated. Moreno argues, and the Attorney General agrees, that Assembly Bill 1869 applies retroactively. We accept the Attorney General’s concession, and we will order that portion of the judgment vacated. C. Resentencing At the time the court placed Moreno on a term of probation with execution of sentence suspended for an upper-term sentence of three years, the court had broad discretion to “select the term which, in the court’s discretion, best serves the interest of justice.” (§ 1170, former subd. (b), operative until Jan. 1, 2022.) However, during pendency of this appeal, Senate Bill No. 567 (Senate Bill 567) amended Penal Code section 1170 to create a presumptive mandate for a middle term that could only be overcome by certain aggravating factors. (Stats. 2021, ch. 731, § 1.3, amending § 1170, subd. (b).) In supplemental briefing, Moreno argues he must be resentenced because he did not admit the aggravating factors and, thus, the trial court lacked the discretion to impose the upper term. The Attorney General agrees that Senate Bill 567 applies retroactively here because Moreno’s judgment is not final. However, the Attorney General contends that Moreno’s prior unsatisfactory performance on probation supplies the aggravating factor that permits the court to impose an upper term. (See Cal. Rules of Court, rule 4.421(b)(5).) The Attorney General maintains that because Moreno admitted his probation and waived his right to an evidentiary hearing, the upper term sentence is valid. It may be that the trial court would, as the Attorney General urges, find Moreno’s previous probation performance provides an aggravating factor 5 that permits imposition of an upper-term sentence. However, because there was no middle-term presumptive sentence requirement at the time of sentencing, we cannot know whether the trial court viewed the previous probation performance as an aggravating factor under the current sentencing requirements. Accordingly, we will remand the matter for resentencing so that the court can consider its discretionary authority in light of Senate Bill 567.
6 DISPOSITION The sentence is vacated, and the matter is remanded for resentencing so that the court can consider its discretionary authority in light of Senate Bill 567. We express no opinion on how the court should exercise its discretion. The trial court is directed to (1) vacate the portion of the judgment imposing a criminal justice administrative fee imposed under Government Code section 29550 that remains unpaid as of July 1, 2021; and (2) revise the abstract of judgment to reflect its oral pronouncement that the fines, fees, and costs are stayed pending an ability to pay hearing. The court is also directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.
Cites, in this corpus
- People v. Zackery C051431 · 2007-02-01
- People v. DONAN B163471 · 2004-04-08
- People v. Mitchell S090791 · 2001-07-19
- People v. Culpepper E013077 · 1994-05-03