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Filed 3/23/22 P. v. Garner CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. CEAN ALLEN GARNER, Defendant and Appellant. A161204

(Mendocino County Super. Ct. No. SCUK

- CRCR

- 18

- 94108)

In December 2019, defendant and appellant Cean Allen Garner pleaded
no contest to three counts of possession of a controlled substance while armed
with a loaded firearm (Health & Saf. Code , § 11370.1, subd. (a)). In August
2020, the trial court suspended imposition of sentence and placed Garner on
formal probation for three years, subject to various terms and conditions. On
appeal, Garner challenges the validity of the court’s imposition of certain

fine s and fees in light of subsequently enacted legislation. He further
contends the order of probation must be modified to correct clerical errors.
We agree.

BACKGROUND
Because the issues on appeal solely relate to sentencing, we omit the
facts of the underlying offenses.2

At the August 28, 2020 sentencing hearing, the trial court ordered
Garner to pay the following fines and fees pursuant to Penal Code 1

section 1203.1b , subdivision (a): ( 1) a $400 presentence investigation report

fee ; ( 2) a $92 per month probation supervision fee; ( 3) a $33 per month drug
testing fee ; and ( 4) a $237 fee for preparation of the supplemental probation

report . The court further imposed a $5 0 installment payment fee (§ 1205) and
a $75 probation collection fee (§ 1203.1b, subd. (h ).) Additionally, t he court imposed but suspended a $300 restitution fine (§ 1204.4; Gov. Code, § 13967)

and a $300 probation r evocation restitution fine (§ 1202.44). 2
With the exception of the restitution fine further discussed below, these

orders are reflected in the probation order filed on October 16, 2020.

DISCUSSION
Garner argues and the Attorney General agrees that the passage of
Assembly Bill No. 1869 eliminated Garner’s responsib ility for any unpaid
balance of the fees imposed pursuant to section 1203.1b. Garner also argues
that the passa ge of Assembly Bill No. 177 similarly eliminates the $50
installment payment fee (§ 1205) and the $75 collection fee (§ 1203.1b,

subd. (h).) Finally, Garner contends the probation order should be modified to
reflect the restitution fines were suspended rather th an imposed.

1 All further undesignated statutory references are to the Penal Code.

2 T he parties refer to the imposition of a $50 registration fee imposed under former section 987.5, which was repealed effective July 1, 2021 ( repealed by Stats. 2020, ch. 92, § 36 )

. How ever, t his fee was not imposed in the October 2020 probation order that is the subject of the instant appeal

. Rather, this fee was imposed o n September 5, 2018
, after Garner advised the court that he could not afford retained counsel. As t he September 5, 2 018 order after hearing is not challenged in this appeal, we express no opinion regarding the imposition of the $50 registration fee imposed under former section 987.5.3 I. Assembly Bill No. 1869
Effective July 1, 2021, Assembly Bill No. 1869 “ ‘ eliminate[d] the range
of administrative fees that agencies and courts are authorized to impose to
fund elements of the criminal legal system and . . . eliminate[d] al l
outstanding debt incurred as a result of the imposition of [identified]

administrative fees.’ ” ( People v. Greeley (2021) 70 Cal.App.5th 609, 625
( Greeley ).) Assembly Bill No. 1869 repealed and amended statutes that apply
to certain fines and fees impose d in cases that were pending on appeal when
the legislation became effective. ( People v. Clark (2021) 67 Cal.App. 5th 248,

252 ( Clark ) .)
As applicabl e here , Assembly Bill No. 1869 amended the Penal Code by
adding section 1465.9, which states in relevant pa rt: “On and after July 1,
2021, the balance of any court

- imposed costs pursuant to Section .

. . 1203.1b,

. . . as [that section] read on June 30, 2021, shall be unenforceable and
uncollectible and any portion of a judgment imposing th[at] cost[ ] shall be
vacated.” (§ 1465.9, subd. (a); Clark, supra , 67 Cal.App.5th at p. 259; Greeley,

supra , 70 Cal.App.5th at p. 625.)
The parties agree , and we concur, that the statutes enacted by
Assembly Bill No. 1869 apply to the four fees imposed pursuant to former
section 1203.1b and are unenforceable and uncollectable, and the portion of
the judgment imposing those costs must be vacated.
Accordingly, we vacate the portion of the judgment imposing the
probation investigation fee ($400), monthly probation su pervision fee ($92),
monthly drug testing fee ($ 33 ), and supplemental probation report fee ($237)

under former section 1203.1b. (§§ 1260 [appellate court may modify a
judgment “as may be just under the circumstances”]; 1465.9, subd. (a)
[“portion of a judg ment imposing those costs shall b e vacated”]; Clark, supra ,4

67 Cal.App.5th at p. 259 [appellate court “must” grant a defendant ’ s request

to vacate “the ‘portion’ of a judgment imposing an outstanding, uncollectible
‘balance’ of indebtedness”].)

II. Assembl y Bill No. 177

I n September 2021, while this appeal was pending, the Legislature
enacted Assembly Bill No, 177, which amended section 1465.9 by adding
section 1202.4 to the provisions to which the debt cancellation applies.
(§ 1465.9, subd. (b), as amended by Stat s . 2021, ch. 257, § 35.) However,
Assembly Bill No. 177 both repeals and reenacts section 1202.4, effective
January 1, 2022, with only a single change

— the elimination of former
subdivision ( l ), which authorized an administrative fee to cover the costs of
collecting a restitution fine.
While the Attorney General does not address Assembly Bill No. 177, it
appears the installment fee ($50) imposed under section 1205 and the
collection fee ($75) imposed under section 1203.1b, subdivision (h) are similarly unenforceable an d uncollectible as of January 1, 2022. Accordingly,

we vacate the portion of the judgment imposing the $50 installment fee
(§ 1205) and the $75 collection fee (§ 1203.1b, subd. (h)).

III. Restitution Fines
Finally, we turn to Garner’s argument that the probation order
requires modification because it fails to reflect that the trial court imposed
but suspended the restitution fines. Garner asks that we “strike” or modify
the restitution fund fines as listed in the probation orde r. “C ourts may correct clerical errors at any time, and appellate courts .

. . that have properly
assumed jurisdiction

. . . [can order] correction of abstracts of judgment that
[do] not accurately reflect the oral j udgments of sentencing courts.” ( People v.5

Mitchell (2001) 26 Cal.4th 181, 185.) We agree the probation order requires

modification.

At the August 28, 2020 sentencing hearing, the trial court stated : “I am
going to suspend term 30 [of the proposed probation order], the $300

restitution fine . Term 31 will be suspended unless there’s a violation of this
probation.” (Italics added.) The October 2020 probation order, however,

checks box 30 without further indication that the $300 restitution fine
(§ 1204.4; Gov. Code, § 139 67) was suspended

. 3 “ ‘ Where there is a
discrepancy between the oral pronouncement of judgment and the minute
order or the abstract of judgment, the oral pronouncement controls. ’ ” ( Clark,

supra, 67 Cal.App.5th at pp. 260

– 261.) Accordingly, we order the m odification
of the probation order at paragraph 30 to reflect that the $300 restitution fine
(§ 1204.4; Gov. Code, § 13967) is suspended.

DISPOS I TION

We strike any unpaid balance of the fees imposed under former section

1203.1b

, former section 1202.4 , and section 1205; we vacate that portion of
the judgment. We direct the trial court to modify the October 2020 probation

order to reflect that the $300 restitution fine imposed under section 1202.44

and Government Code s e ction 13967 is suspended. In all other respects the
judgment is affirmed. The matter is remanded to the trial court for

correction. The trial court shall notify the appropriate authorities regarding
the modifications to Garner’s probation.

3 Although not a model of clarity, the probation order reflects the probation revocatio n restitution fine imposed under section 1202.44 was suspended. Paragraph 31 of the probation order provides: “You shall pay a Restitution Fine in the amount of $300, and that $300 of said fine be stayed {12022.44 PC}, with the stay to become permanent upo n your successful completion of probation.” (Original boldface and underlining omitted.)6 ________________ _________ Desautels, J. *

WE CONCUR:

_________________________ Streeter, Acting P.J.

_________________________ Brown, J.

A161204 People v. Garner

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.