People v. Hong

• Decision Date: 15 June 1998
• Docket Number: No. B113309,B113309
• Citation: 76 Cal.Rptr.2d 23,64 Cal.App.4th 1071
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 4603, 98 Daily Journal D.A.R. 6525 The PEOPLE, Plaintiff and Respondent, v. James HONG, Defendant and Appellant.

Page 23

76 Cal.Rptr.2d 23

64 Cal.App.4th 1071, 98 Cal. Daily Op. Serv. 4603,

98 Daily Journal D.A.R. 6525

The PEOPLE, Plaintiff and Respondent, v. James HONG, Defendant and Appellant.

No. B113309.

Court of Appeal, Second District, Division 5, California.

June 15, 1998.

Certified for Partial Publication. ^*

Timothy C. Cronin, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Lawrence M. Daniels, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, Presiding Justice.

Defendant, James Hong, appeals after he was convicted of multiple offenses: attempted murder (Pen.Code, §§ 187, 664 )¹; assault with a deadly weapon as a felony (§ 245, subd. (a)); two counts of felony corporal injury to a spouse or cohabitant; (§ 273.5, subd. (a)); making a terrorist threat (§ 422); two counts of misdemeanor assault (§ 240); misdemeanor vandalism (§ 594, subd. (a)); misdemeanor assault by means of force likely to inflict great bodily injury with a deadly weapon (§ 245, subd. (a)(1)); and a single count of misdemeanor corporal injury to a spouse. (§ 273.5, subd. (a).) Additionally, three allegations pursuant section 12022.7, subdivision (d) were found to be true.

In the published portion of the opinion, we address the duty of the superior court clerk to include a restitution fine pursuant to section 1202.4, subdivision (b) and other orders in the abstract of judgment. We further address the requirement that a fine also be imposed pursuant to section 1202.45 when the defendant is fined in compliance with section 1202.4.

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In the published portion of this opinion we address two issues. The first issue involves the abstract of judgment. The second question involves an additional restitution fine pursuant to section 1202.45. To begin with, we address the issue of whether a restitution fine imposed pursuant to section 1202.4, subdivision (b) ² must be reflected on the abstract of judgment along with orders for "deoxyribonucleic acid (DNA) and other genetic typing analysis" pursuant to section 290.2. ³ The easier question with a clearer answer is whether the section 1202.4, subdivision (b) fine must be set forth on the abstract of judgment. This is a matter of some consequence because abstracts of judgment issued by the County Clerk of Los Angeles County routinely omit any reference to fines. The Attorney General is correct that although the reporter's transcript and the minute order of the probation and sentencing hearing reflect the trial judge imposed the section 1202.4, subdivision (b) restitution fine, the abstract of judgment does not. The abstract of judgment is a form promulgated by the Judicial Council under the authority of section 1213.5 which will be discussed in some detail later in this opinion. The abstract of judgment in this case is Judicial Council Form DSL 290 and it is attached as an appendix to this opinion. As can be noted, paragraph 5 is labeled "OTHER ORDERS" and is followed by a three-eighths inch by three-inch space where a fine can be listed. Under the provided space, the following words appear, "Use additional sheets of plain paper if necessary." ⁴

In support of the contention the abstract of judgment must include the section 1202.4, subdivision (b) restitution fine, the Attorney General relies upon the following language in People v. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal.Rptr. 473, 535 P.2d 337: "As the Los Angeles Superior Court Criminal Trial Judge's Bench Book states on page 452: 'Rendition of judgment is an oral pronouncement.' Entering the judgment in the minutes being a clerical function (Pen.Code, § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. 'The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms (see Pen.Code, § 1213.5) it cannot add to or modify the judgment which it purports to digest or summarize.' (People v. Hartsell (1973) 34 Cal.App.3d 8, 14, 109 Cal.Rptr. 627[ ].)" Appellate courts routinely grant requests on appeal of the Attorney General to correct errors in the abstract of judgment. (E.g. People v. Goodwin (1997) 59 Cal.App.4th 1084, 1094, fn. 8, 69 Cal.Rptr.2d 576 [abstract corrected to add restitution fine]; People v. Neufer (1994) 30 Cal.App.4th 244, 254, 35 Cal.Rptr.2d 386 [excessive day of presentence conduct credit]; People v. Ngaue (1992) 8 Cal.App.4th 896, 899, fn. 3, 10 Cal.Rptr.2d 521 [abstract corrected concerning enhancements].)

The abstract of judgment in a criminal case is a document described in Penal Code section 1213 which states: "When a probationary order or a judgment, other than of death, has been pronounced, a copy of the entry of that portion of the probationary order ordering the defendant confined in a city or county jail as a condition of probation, or a copy of the entry of the judgment, or, if the judgment is for imprisonment in the state prison, either a copy of the minute order or an abstract of the judgment as provided in Section 1213.5, certified by the clerk of the court, or by the judge, if there is no clerk, and a Criminal Investigation and Identification (CII) number shall be forthwith furnished to the officer whose duty it is to execute the probationary order or judgment, and no other warrant or authority is necessary to justify or require its execution. [p] If a copy of the minute order is used as the commitment document, the first page or pages shall be identical in form and content to that prescribed by the Judicial Council for an abstract of judgment, and such other matters as appropriate may be added thereafter." As noted previously, the actual form used as the abstract of judgment in this case was prepared by the Judicial Council as required by Penal Code section 1213.5 which states, "The abstract of judgment provided for in Section 1213 shall be prescribed by the Judicial Council." The delivery of the abstract of judgment or a certified copy of the minute order to the sheriff commences the execution of judgment. (People v. Howard (1997) 16 Cal.4th 1081, 1089, 68 Cal.Rptr.2d 870, 946 P.2d 828; People v. Karaman (1992) 4 Cal.4th 335, 344-345, 14 Cal.Rptr.2d 801, 842 P.2d 100.) Abstracts of judgment in matters imposing imprisonment in state prison are orders sending the defendant to prison and imposing the duty upon the warden to carry out the judgment. (In re Black (1967) 66 Cal.2d 881, 889-890, 59 Cal.Rptr. 429, 428 P.2d 293; People v. Crockett (1990) 222 Cal.App.3d 258, 266, 271 Cal.Rptr. 500.)

The question presented by the Attorney General's argument requires a determination as to whether a fine is part of a judgment. Beginning in 1851, fines have been recognized by the Legislature as an element of the judgment. The first comprehensive statutory framework adopted by the Legislature in terms of criminal procedure was enacted in 1851 with the adoption of "AN ACT to regulate Proceedings in Criminal Cases." (See Kleps, The Revision and Codification of California Statutes 1849-1953 (1954) 42 Cal. Law Rev. 766, 767 & fn. 6; e.g. People v. Chadd (1981) 28 Cal.3d 739, 749, 170 Cal.Rptr. 798, 621 P.2d 837.) The 1851 statutory provisions indicated that a judgment included a fine. Section 464 of the 1851 act referred to a judgment "for a fine alone." (Stats. 1851, ch. 464, § 464, p. 263.) Section 465 of the 1851 act stated: "If the judgment be imprisonment or a fine and imprisonment until it be satisfied, ..." (Stats. 1851, ch. 464, § 465, p. 263.) Sections 1215 and 1216 of the Penal Code, as initially adopted in 1872, likewise used the term "fine" in the context of being part of a judgment. (1 Pen.Code, §§ 1215-1216 (1st ed. 1872, Haymond, Burch & McKune, commrs.) p. 425.) The present version of the Penal and other codes utilize the term "fine" in the context of a judgment in a criminal case. (E.g. Code Civ. Proc, § 704.090, subd. (b) ["if the judgment is for a restitution fine or order imposed pursuant to subdivision (a) of Section 13967 of the Government Code, as operative on or before September 28, 1994, or Section 1203.04 of the Penal Code, as operative on or before August 2, 1995, or Section 1202.4 of the Penal Code...."]; § 1165 ["[i]f such judgment is given, or a judgment imposing a fine only, without imprisonment for nonpayment is given, and the defendant is not detained for any other legal cause, he must be discharged, if in custody, as soon as the judgment is given"]; § 1205 ["judgment that the defendant pay a fine, with or without other punishment, may also direct that he or she be imprisoned until the fine is satisfied"]; § 1214, subd. (a) ["If the judgment is for a fine, including a restitution fine ordered pursuant to Section 1202.4 or Section 1203.04, as operative on or before August 2, 1995, or Section 13967 of the Government Code, as operative on or before September 28, 1994, with or without imprisonment, the judgment may be enforced in the manner provided for the enforcement of money judgments generally."]; § 1215 ["If the judgment is for imprisonment, or a fine and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer and by him or her detained until the judgment is complied with."]; § 1272, subd. 1 ["when the appeal is from a judgment imposing a fine only"]; § 1273 ["the appeal is from a judgment imposing a fine only"]; § 1445 ["the court shall render judgment thereon of fine or imprisonment, or both, as the case may be"]; § 4017.5 ["under a judgment of imprisonment, or a fine and imprisonment until the fine is paid"]; § 4019 ["under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal...