People v. Heisler

California Court of Appeal Jun 5, 1987 No. B023395Published

Before: Hastings

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Holding. The trial court lacks the authority to waive the mandatory penalty assessment required by Penal Code section 1464, except in the specific circumstances where the defendant is imprisoned until the fine is satisfied.

Issues

Whether the penalty assessment required by Penal Code section 1464 is mandatory or discretionary.
Whether the trial court has jurisdiction to waive the penalty assessment on a fine imposed as a condition of probation.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“the words of the statute, “there shall be levied an assessment” (Pen. Code, § 1464) are reasonably clear.”

“Since the mandatory nature of the word “shall” precluded the superior court from waiving the penalty assessment on the fine imposed, the order of July 16, 1986, deleting the assessment must be reversed.”

Opinion

HASTINGS, J.

This is an appeal by the People (Pen. Code, § 1238, subds. (a)(5), (a)(6)) from an order waiving the penalty assessment on a $10,000 fine which was levied against defendant.

Defendant pleaded guilty to possessing cocaine for sale (count I—Health & Saf. Code, § 11351); to possessing methamphetamine for sale (count II—Health & Saf. Code, § 11378); and to possessing a pen gun in violation of Penal Code section 12020, subdivision (a) (count III). As to count I he was sentenced to state prison for the upper base term of four years; however, the sentence was suspended. As to counts II and III, the proceedings were suspended without imposition of sentence and probation was granted upon certain terms and conditions including that he pay a “fine of $ 10,000.00 plus assessment____”

Later, defendant admitted violating probation. The court revoked probation and reinstated it with the following modifications: “The defendant is ordered to serve nine months in county jail instead of the original six months that he was ordered to serve. [H] In addition thereto, the court will waive the penalty assessment on the $10,000 fine____”

During the hearing the following colloquy occurred:

“Mr. Hofman [deputy district attorney]: Your Honor, I would like to make one comment. [11] It is my belief the court does not have the power to excuse

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the payment of the penalty assessment because that is automatically imposed.

“Mr. De Sales [defense counsel]: Well, if that is the case, then I would make a motion to modify the terms of probation by reducing the substantive fine so that the penalty assessment would be included. [1Í] Then, if the court were to impose a fine of $3000 or $4000,1 think it would bring it up to about ten grand, but I think that is what the court had contemplated in the first place. [U] If that’s the People’s position, and the court is inclined to agree, that would be my request.

“The Court: I don’t agree with that.

“Mr. De Sales: In terms of —

People v. Heisler

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HASTINGS, J.

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