People v. Gilliam CA4/1

Filed 5/5/23 P. v. Gilliam CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080511

Plaintiff and Respondent,

v. (Super. Ct. No. SCD292354)

MARVIN DELANO GILLIAM,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Reversed and remanded with directions. Raquel Cohen, under appointment by the Court of Appeals, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

Marvin D. Gilliam challenges a judgment revoking his probation and the court’s sentence imposing fines and fees. First, he contends the court erred in finding he violated probation. He asserts the finding was based on

inadmissible hearsay statements and, without which, there was no substantial evidence to support the finding. Second, he argues the imposition of fines and fees were not authorized by law and should be stricken. The Attorney General concedes both points. We agree and reverse. FACTUAL AND PROCEDURAL BACKGROUND A Charges, Guilty Plea, and Sentence Gilliam exposed his genitals, masturbated, and made lewd sexual noises to two female employees of a fast-food restaurant who were walking to their morning shift. He pleaded guilty to felony indecent exposure and admitted having a prior conviction for indecent exposure and a strike prior. At the sentencing hearing in early March 2022, the trial court struck Gilliam’s strike prior, imposed but suspended the execution of a two-year prison sentence, and granted two years of formal probation. Among Gilliam’s probation conditions, the court ordered Gilliam to participate in treatment, therapy, and counseling, including sex offender treatment. The court stated Gilliam was releasable to an assertive community treatment (ACT) program and, once placed, the court ordered him “to remain and participate in their program” as a condition of probation. The court found Gilliam did not have the ability to pay fines and fees “due to his mental health and transient status.” It therefore concluded they were “excessive under the Eighth Amendment” and would be “deleted.” B Probation Report According to a probation report prepared by Probation Officer Brian Adkison, Gilliam was released on March 10, 2022, to an independent living facility sponsored by the ACT program. Less than a week later, Deputy