California Court of Appeal Jul 1, 2013 No. D062371Unpublished
Filed 7/1/13 P. v. Holloway CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D062371
Plaintiff and Respondent,
v. (Super. Ct. No. SCD240302)
DWAYNE HOLLOWAY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A.
Eyherabide, Judge. Affirmed with directions.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kimberley
A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
Dwayne Holloway pled guilty to a violation of Health and Safety Code section
11350, subdivision (a) for possession of cocaine base, a controlled substance. Pursuant to
the plea, the court sentenced Holloway to 365 days in local custody, followed by one year
in a residential drug treatment facility and three years of formal probation, and imposed
various fines, fees and assessments (collectively, fines) that it stayed pending successful
(restitution fine); and $240 (probation revocation restitution fine). These sums totaled
$9,730.
However, as noted ante, the trial court at sentencing exercised its discretion and
orally imposed a main fine of $800. The order granting formal probation itself shows this
change but, as both parties note, section 2 of the order granting formal probation was not
1 In light of our decision, we conclude it is unnecessary to determine whether Holloway in this proceeding forfeited his objection to the imposition of the AIDS education fine and the drug program fee. We note, however, our high court recently held in People v. McCullough (2013) 56 Cal.4th 589 that a defendant who failed to object to a $270.17 booking fee when imposed forfeited that issue on review. 7
modified accordingly to reflect this reduction of the main fine. We therefore correct
section 2 of the order granting formal probation to show $2,530 as the total amount of
fines imposed at Holloway's sentencing, which sum we note, also equals the fines, fees
and assessments set forth in the minutes.2
DISPOSITION
The trial court is directed to modify section 2 of the order granting formal
probation to show $2,530 as the "total due" for the fines it orally imposed at Holloway's
sentencing. The judgment of conviction is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
2 The $2,530 figure is the difference between $9,730, on the one hand, and $7,200 ($8,000, the proposed main fine, less $800, the fine actually imposed), on the other hand. 8
AI Brief
AI-generated · verify before citing
Holding. The court held that a trial court need not orally itemize every fine and fee at sentencing when it relies on a probation report, and that a finding of ability to pay may be implied. The court ordered a clerical modification to the probation order to reflect the correct total of fines imposed.
Issues
Whether the trial court erred by failing to orally itemize all fines and fees at sentencing.
Whether the trial court erred by failing to make an express finding of the defendant's ability to pay the AIDS education fine and drug program fee.
Whether the order granting formal probation contained a clerical error regarding the total amount of fines.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“A trial court need not specifically itemize fines and fees when orally pronouncing judgment”
“We conclude on this record it was an "acceptable practice" for the trial court to rely on the itemized list of proposed fines in the probation report”
“A trial court's determination of a defendant's ability to pay fines, fees and/or assessments need not be express but may be implied”