Filed 7/8/21 P. v. Snow CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075472
v. (Super.Ct.Nos. RIF1900166 & RIF1501761) OSCAR LEE SNOW, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed and
Gail A. O’Rane, Judges. Affirmed and remanded with directions.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos
and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
1 Oscar Lee Snow pled guilty to theft, embezzlement, forgery or fraud from an
elder, and admitted an enhancement allegation. The court sentenced him to four years in
prison and stayed the sentence for the enhancement. The court did not orally impose
assessments, but the abstract of judgment and sentencing minute order show two
assessments totaling $70.
On appeal, Snow asserts two errors. He argues the enhancement must be stricken
because there is no factual basis for it. He also argues the abstract of judgment must be
corrected to strike the assessments. The People agree the enhancement should be stricken
but argue the case should be remanded to allow the court to orally impose the mandatory
assessments. We modify the judgment and remand for resentencing to allow the court to
determine whether Snow has the ability to pay the assessments, and if so to impose them.
I. FACTS
On February 7, 2020, Snow pled guilty to theft, embezzlement, forgery or fraud
from an elder. (Pen. Code, § 368, subd. (d)(1), unlabeled statutory citations refer to this
code.) He also admitted the enhancement allegation that he committed two or more
related felonies which shared a material element of fraud or embezzlement. (§ 186.11,
subd. (a)(1).) The court sentenced him to four years in state prison for the underlying
offense and stayed the sentence on the enhancement. The court imposed certain fines,
including a restitution fine and direct victim restitution, but didn’t orally impose
assessments under Penal Code section 1465.8 or Government Code section 70373.
2 Nevertheless, these assessments, totaling $70, do appear on the abstract of judgment and
in the sentencing minute order.
Snow timely appealed the judgment.
II. ANALYSIS
Snow argues the enhancement must be stricken because he didn’t actually commit
two felonies, let alone two related felonies. The People agree. He also argues we must
strike the assessments from the abstract of judgment because the court did not orally
pronounce them. The People agree the court didn’t orally impose the assessments but
argue they’re mandatory, and therefore we should remand to allow the court to impose
them.
A. The Enhancement
Section 186.11, subdivision (a)(1), states, “[a]ny person who commits two or more
related felonies, a material element of which is fraud or embezzlement, which involve a
pattern of related felony conduct, and the pattern of related felony conduct involves the
taking of, or results in the loss by another person or entity of, more than one hundred
thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies
in a single criminal proceeding.” The statutory language is clear: for the enhancement to
be authorized, the defendant must have been convicted of more than one felony in a
single proceeding.
Here, Snow was convicted of only one felony. Therefore, there is no factual basis
for his plea admitting he committed more than one felony, and no legal basis to impose
3 the enhancement under section 186.11. In such a situation, the appropriate remedy is to
strike the enhancement. (See, e.g. People v. Nilsson (2015) 242 Cal.App.4th 1, 34
[finding prosecution didn’t plead and prove a necessary element of the 186.11
enhancement, and therefore striking it].)
Striking the invalid enhancement doesn’t alter the aggregate term the parties
agreed to and the court imposed. Therefore, we strike the enhancement.
B. The Assessments
Penal Code section 1465.8, subdivision (a)(1), provides that “an assessment of
forty dollars ($40) shall be imposed on every conviction for a criminal offense.”
Similarly, Government Code section 70373, subdivision (a)(1), provides that “an
assessment shall be imposed on every conviction for a criminal offense. . . . The
assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor
or felony.” These assessments are mandatory, but a trial judge must “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.” (People v. Dueñas (2019) 30 Cal.App.5th 1157,
1164.)
It is undisputed the trial court didn’t orally impose these assessments during
sentencing. It also didn’t hold an ability to pay hearing. Nevertheless, the abstract of
judgment and minute order shows the court did impose these assessments.
4 “In a criminal case, it is the oral pronouncement of sentence that constitutes the
judgment.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) “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.) Accordingly, we agree with the parties that the abstract of
judgment and sentencing minute order are erroneous.
The only area of disagreement between the parties is how to correct the error.
Snow requests we strike the imposed assessments using our inherent power to correct
clerical errors and unauthorized sentences. The People request we remand to the trial
court to allow it to impose the assessments after determining whether he has the ability to
pay them.
The Peoples’ approach is correct. The assessments at issue are mandatory; the
only way a court can avoid imposing them is to find the defendant doesn’t have the
ability to pay them. For this reason, we cannot simply strike the assessments as a clerical
error. Absent a finding of inability to pay, the trial court didn’t have the discretion to
avoid imposing these assessments. Thus, correcting the minute order and abstract of
judgment would be affirming an erroneous sentencing decision. Nor can we utilize our
inherent power to correct an unauthorized sentence (see People v. Relkin (2016) 6
Cal.App.5th 1188, 1198) in order to impose the assessments, as that wouldn’t give Snow
an opportunity to dispute whether he is able to pay them.
5 This is also why Snow’s argument that the People waived their right to challenge
this error is unpersuasive. He cites People v. Tillman (2000) 22 Cal.4th 300 (Tillman) to
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Filed 7/8/21 P. v. Snow CA4/2 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075472
v. (Super.Ct.Nos. RIF1900166 & RIF1501761) OSCAR LEE SNOW, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed and
Gail A. O’Rane, Judges. Affirmed and remanded with directions.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos
and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
1 Oscar Lee Snow pled guilty to theft, embezzlement, forgery or fraud from an
elder, and admitted an enhancement allegation. The court sentenced him to four years in
prison and stayed the sentence for the enhancement. The court did not orally impose
assessments, but the abstract of judgment and sentencing minute order show two
assessments totaling $70.
On appeal, Snow asserts two errors. He argues the enhancement must be stricken
because there is no factual basis for it. He also argues the abstract of judgment must be
corrected to strike the assessments. The People agree the enhancement should be stricken
but argue the case should be remanded to allow the court to orally impose the mandatory
assessments. We modify the judgment and remand for resentencing to allow the court to
determine whether Snow has the ability to pay the assessments, and if so to impose them.
I. FACTS
On February 7, 2020, Snow pled guilty to theft, embezzlement, forgery or fraud
from an elder. (Pen. Code, § 368, subd. (d)(1), unlabeled statutory citations refer to this
code.) He also admitted the enhancement allegation that he committed two or more
related felonies which shared a material element of fraud or embezzlement. (§ 186.11,
subd. (a)(1).) The court sentenced him to four years in state prison for the underlying
offense and stayed the sentence on the enhancement. The court imposed certain fines,
including a restitution fine and direct victim restitution, but didn’t orally impose
assessments under Penal Code section 1465.8 or Government Code section 70373.
2 Nevertheless, these assessments, totaling $70, do appear on the abstract of judgment and
in the sentencing minute order.
Snow timely appealed the judgment.
II. ANALYSIS
Snow argues the enhancement must be stricken because he didn’t actually commit
two felonies, let alone two related felonies. The People agree. He also argues we must
strike the assessments from the abstract of judgment because the court did not orally
pronounce them. The People agree the court didn’t orally impose the assessments but
argue they’re mandatory, and therefore we should remand to allow the court to impose
them.
A. The Enhancement
Section 186.11, subdivision (a)(1), states, “[a]ny person who commits two or more
related felonies, a material element of which is fraud or embezzlement, which involve a
pattern of related felony conduct, and the pattern of related felony conduct involves the
taking of, or results in the loss by another person or entity of, more than one hundred
thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies
in a single criminal proceeding.” The statutory language is clear: for the enhancement to
be authorized, the defendant must have been convicted of more than one felony in a
single proceeding.
Here, Snow was convicted of only one felony. Therefore, there is no factual basis
for his plea admitting he committed more than one felony, and no legal basis to impose
3 the enhancement under section 186.11. In such a situation, the appropriate remedy is to
strike the enhancement. (See, e.g. People v. Nilsson (2015) 242 Cal.App.4th 1, 34
[finding prosecution didn’t plead and prove a necessary element of the 186.11
enhancement, and therefore striking it].)
Striking the invalid enhancement doesn’t alter the aggregate term the parties
agreed to and the court imposed. Therefore, we strike the enhancement.
B. The Assessments
Penal Code section 1465.8, subdivision (a)(1), provides that “an assessment of
forty dollars ($40) shall be imposed on every conviction for a criminal offense.”
Similarly, Government Code section 70373, subdivision (a)(1), provides that “an
assessment shall be imposed on every conviction for a criminal offense. . . . The
assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor
or felony.” These assessments are mandatory, but a trial judge must “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.” (People v. Dueñas (2019) 30 Cal.App.5th 1157,
1164.)
It is undisputed the trial court didn’t orally impose these assessments during
sentencing. It also didn’t hold an ability to pay hearing. Nevertheless, the abstract of
judgment and minute order shows the court did impose these assessments.
4 “In a criminal case, it is the oral pronouncement of sentence that constitutes the
judgment.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) “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.) Accordingly, we agree with the parties that the abstract of
judgment and sentencing minute order are erroneous.
The only area of disagreement between the parties is how to correct the error.
Snow requests we strike the imposed assessments using our inherent power to correct
clerical errors and unauthorized sentences. The People request we remand to the trial
court to allow it to impose the assessments after determining whether he has the ability to
pay them.
The Peoples’ approach is correct. The assessments at issue are mandatory; the
only way a court can avoid imposing them is to find the defendant doesn’t have the
ability to pay them. For this reason, we cannot simply strike the assessments as a clerical
error. Absent a finding of inability to pay, the trial court didn’t have the discretion to
avoid imposing these assessments. Thus, correcting the minute order and abstract of
judgment would be affirming an erroneous sentencing decision. Nor can we utilize our
inherent power to correct an unauthorized sentence (see People v. Relkin (2016) 6
Cal.App.5th 1188, 1198) in order to impose the assessments, as that wouldn’t give Snow
an opportunity to dispute whether he is able to pay them.
5 This is also why Snow’s argument that the People waived their right to challenge
this error is unpersuasive. He cites People v. Tillman (2000) 22 Cal.4th 300 (Tillman) to
support this argument. However, Tillman concerned a trial court’s failure to impose
restitution fines, not assessments. Unlike the assessments at issue here, which are
mandatory, a trial court may decline to impose otherwise mandatory restitution fines if “it
finds compelling and extraordinary reasons for not doing so and states those reasons on
the record.” (§ 1202.4, subds. (b) & (c).) Tillman concerned the proper remedy for when
a trial court declines to impose a restitution fine and fails to state its reasons on the
record. The court concluded the prosecutor must object to the court’s failure to state its
reasons or else forfeit the right to challenge the decision because “ ‘[a]lthough the court is
required to impose sentence in a lawful manner, counsel is charged with understanding,
advocating, and clarifying permissible sentencing choices at the hearing. Routine defects
in the court’s statement of reasons are easily prevented and corrected if called to the
court’s attention.” (Tillman, at p. 303, italics omitted.)
Tillman is distinguishable from the facts here because here the court was
statutorily required to impose the assessments. The only way it could decline to impose
the assessments was by finding Snow didn’t have the ability to pay them. This requires a
factual finding and is therefore not a pure exercise of discretion. Absent such an
affirmative finding, the sentence is unauthorized.
6 Accordingly, we conclude the appropriate remedy is to remand to the sentencing
court so that it can determine whether Snow has the ability to pay the $70 in
assessments—and impose them if it finds he can.
III. DISPOSITION
We modify defendant’s sentence to strike the Penal Code section 186.11,
subdivision (a)(1) enhancement. We remand for resentencing for the limited purpose of
determining whether Snow has the ability to pay the mandatory assessments under Penal
Code section 1465.8 and Government Code 70373, and to impose them if the court finds
he does have the ability to pay them. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
RAMIREZ P. J.
MILLER J.