Filed 2/28/14 P. v. Brewer CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A138383
v.
KENNETH ROB BREWER, (Napa County
Super. Ct. No. CR163879)
Defendant and Appellant.
Kenneth Rob Brewer appeals from a judgment of conviction and sentence
imposed after he entered a no contest plea to multiple felony counts. His appellate
challenge distills to a meritless dispute about a $35 administrative fee and $13 drug
testing fee mentioned on a form contained in the record. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In January 2013, Brewer entered a plea of no contest to four felony counts:
possession for sale of a controlled substance (Health & Saf. Code, § 11351); possession
of marijuana for sale (Health & Saf. Code, § 11359); cultivation of marijuana (Health
& Saf. Code, § 11358); and possession of ammunition by a felon (Pen. Code, § 30305,
subd. (a)). He also admitted that he had two prior convictions related to controlled
substances (Health & Saf. Code, § 11370.2, subd. (a)) and possessed excess cocaine for
sale (Pen. Code, § 1203.073, subd. (b)).
Brewer was initially released on his own recognizance, on the condition that he
would be sentenced up to the maximum of eight years in custody and three years four
months of mandatory supervision if he perpetrated a new offense. (See Cal. Rules of
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Court, rule 4.412.) He was later returned to custody after he was caught taping a bindle
of cocaine to the underside of a restaurant table.
At the sentencing hearing on March 18, 2013, Brewer was sentenced to five years
in local custody and four years on mandatory supervision. No error is claimed as to this
aspect of his sentence.
The court also orally imposed the following fines and fees: a $160 mandatory
court security fee; a $1,120 restitution fine; a $120 criminal conviction assessment; a
$205 laboratory analysis fee as to each of counts one through three (for a total of $615);
and a $13 drug testing fee, by stating that “Number 31 [of the mandatory supervision
terms and conditions in the probation department’s presentence report] is imposed.” (See
Pen. Code, § 1202.4; Govt. Code, § 70373; Health & Saf. Code, § 11372.5; Pen. Code,
§ 1203.1ab.)1 The court waived other fees based on Brewer’s inability to pay them.
The minute order from the sentencing hearing records all of these fines and fees,
either expressly or by reference to the number of the corresponding mandatory
supervision condition. In addition, the minute order states in bold-face type: “Matter is
referred to Post Court Services.”
Also in the record is a document entitled “Napa County Superior Court
[¶] Promise to Appear/CSB Referral,” dated March 21, 2013, ostensibly initialed by the
court clerk (CSB Form). According to this document, “CSB” refers to the California
Service Bureau, and the purpose is to establish an installment payment plan for the fines
and fees imposed by the court. The CSB Form lists: a court operations assessment of
$160; a “fine” of $1,855 (without explicitly mentioning the $1,120 restitution fine, $120
criminal conviction assessment, or $615 for the three lab analysis fees); and the drug
testing fee of $13. In addition, the CSB Form imposes an administrative fee, not
mentioned orally by the court, in the amount of $35.
1
Condition No. 31 read: “Pay a Drug Testing Fee of $13.00 per test, upon ability
to pay. (Penal Code Section 1203.1ab.)” The $160 court security fee, $1,120 restitution
fine, $120 criminal conviction assessment, and each of the three laboratory analysis fees
were referenced in condition Nos. 21–23 and 25–27.
2
The CSB Form contains the following language: “I, being the defendant in the . . .
matter, hereby promise and agree to the above listed amount . . . .” Although the
document has a line for Brewer’s signature, Brewer did not sign it. Instead, the document
bears the handwritten words, “In Custody.”
This appeal followed.
II. DISCUSSION
Brewer contends he should not be required to pay the “$1800” fine or the
$35 administrative fee included on the CSB Form, because neither was mentioned orally
by the court at sentencing, and he never signed the CSB Form. (Citing People v. Zackery
(2007) 147 Cal.App.4th 380, 385 [oral pronouncement of judgment controls over minute
order or abstract of judgment].) He further urges that the $13 drug testing fee is
mentioned incorrectly in the CSB Form, because that fine may be imposed only if he had
the ability to pay it. We address each argument.
A. The $1,855 In Fines and Fees
The CSB Form actually refers to a fine of $1,855, not $1,800. This $1,855
corresponds to the sum of the fines and fees orally imposed by the court at the sentencing
hearing: $1,120 for the restitution fine, $120 for the criminal conviction assessment, and
$615 for the laboratory analysis fees, totaling $1,855. There is no dispute that these
fines, fees, and amounts were ordered by the court. The CSB Form is therefore correct in
this regard.
B. The $13 Drug Testing Fee
The court orally pronounced the $13 drug testing fee, by stating on the record that
mandatory supervision condition “Number 31 is imposed.” The court’s reference to the
condition number was sufficient to evince the court’s intent to follow the probation
department’s recommendation and impose the fee. (See People v. Arata (2004)
118 Cal.App.4th 195, 202, fn. 7.)
Brewer argues, however, that the $13 drug testing fee mentioned in the probation
report and Penal Code section 1203.1ab may be imposed only to the extent
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commensurate with the defendant’s ability to pay. 2 He notes that the probation report
specifically recommended “$13.00 per test, upon ability to pay.” He further urges that
the trial court could not have implicitly determined his ability to pay, because the
probation report did not specify the number of $13 tests he would have to take.
Brewer therefore does not challenge the judge’s imposition of the $13 drug test
fee—which he waived anyway by failing to object at the sentencing hearing—but
protests the fact that the court clerk later “transformed” the conditional fee into an
absolute one when entering it onto the CSB Form. He asserts that we may modify an
erroneous recording of the trial court’s oral pronouncements to reflect the actual
judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Brewer’s protest is meritless. Although the CSB Form does not expressly state
that the $13 fee was based on Brewer’s ability to pay, neither does it expressly state that
it was not based on Brewer’s ability to pay. Implicitly, the $13 fee in the CSB Form was
necessarily conditioned on his ability to pay, since that is what is specified in the statute
and the probation department’s recommendation that the court adopted; in any event, we
deem the CSB Form to be construed in that manner. As so construed, the CSB Form is
not inconsistent with the court’s imposition of the $13 fee.
Moreover, the record supports the conclusion that the court did decide Brewer had
the ability to pay the fee. By statute, the court must determine the defendant’s ability to
2
Penal Code section 1203.1ab provides: “Upon conviction of any offense
involving the unlawful possession, use, sale, or other furnishing of any controlled
substance, as defined in Chapter 2 (commencing with Section 11053) of Division 10
of the Health and Safety Code, in addition to any or all of the terms of imprisonment,
fine, and other reasonable conditions specified in or permitted by Section 1203.1,
unless it makes a finding that this condition would not serve the interests of justice, the
court, when recommended by the probation officer, shall require as a condition of
probation that the defendant shall not use or be under the influence of any controlled
substance and shall submit to drug and substance abuse testing as directed by the
probation officer. If the defendant is required to submit to testing and has the
financial ability to pay all or part of the costs associated with that testing, the court
shall order the defendant to pay a reasonable fee, which shall not exceed the actual
cost of the testing.” (Italics added.)
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pay before imposing the fee. (Pen. Code, § 1203.1ab.) We presume the court did what it
was supposed to do in the absence of a contrary indication in the record, and there is no
such contrary indication here. The court stated at the hearing: “[Condition Nos.] 28, 29,
and 30 will be waived based on inability to pay. Number 31 is imposed.” From this, it
is reasonable to infer that the court determined that Brewer did not have the ability to pay
the fees or fines referenced in condition Nos. 28, 29, and 30, but he did have the ability to
pay the drug testing fee referenced in condition No. 31. Neither Brewer nor his attorney
objected or sought clarification.
As mentioned, Brewer argues that the court could not have determined his ability
to pay the $13 fee because the probation report did not specify how many drug tests
Brewer would have to take. We disagree: the court still could have made the
determination; whether there was a substantial basis for the court’s determination in light
of this missing information would be a different question, which Brewer has failed to
pursue. At any rate, Brewer’s argument is immaterial to his challenge to the CSB
Form—the sole subject of the appeal—since the CSB Form only mentions “$13” for one
test.
C. The $35 Administrative Fee
Brewer argues that the $35 administrative fee on the CSB Form should be
stricken, because the court did not impose it. Again, his argument is meritless.
Under Penal Code section 1205, subdivisions (d) and (e), a defendant may be
charged a fee for the administrative and clerical costs involved in processing an
installment account used to pay off fines imposed by the court. (See also Napa County
Superior Court, Can I make payments or work off my fine? [as of Feb. 28, 2014; explaining imposition of $35
administrative fee].) Since the record discloses that the purpose of the CSB Form was to
facilitate an installment plan for the payment of the fines and fees imposed by the court,
the record supports the inclusion of the administrative fee on the CSB Form.
Brewer argues that he was never presented with the option to pay the fines and
fees immediately, as opposed to paying them over time and incurring the administrative
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fee, and Penal Code section 1205 does not authorize the clerk or CSB to impose the
administrative fee unilaterally. The record, however, shows that the court imposed the
fines and other fees on March 18, 2013, and the court’s minute order of that March 18
hearing states clearly—and in bold-faced print—that the “[m]atter is referred to Post
Court Services.” The inference is that Brewer opted not to pay the $2,028 immediately,
but to make arrangements to pay it in installments. Indeed, there is no indication that
Brewer ever attempted to pay the fines and fees when they were imposed.3
Brewer further contends Penal Code section 1205, subdivision (e) “provides that
the ‘fee shall equal the administrative and clerical costs, as determined by the board of
supervisors, or by the court, depending on which entity administers the account’ and may
not exceed $30 dollars [sic].” (Italics added.) He mischaracterizes the statute.
Subdivision (e) limits the “fee established for the processing of the accounts receivable
that are not to be paid in installments” to $30. (Italics added.) The subdivision does not
so limit the “fee for the processing of installment accounts.” (Pen. Code, § 1205,
subd. (e).)
Brewer next argues that “[t]he fee does not apply to fines and restitution orders.
(Subd. (f).)” But subdivision (f) of Penal Code section 1205 actually states: “This
section shall not apply to restitution fines and restitution orders.” (Italics added.) The
CSB Form in this matter does not relate solely to a restitution fine or restitution order.
In sum, Brewer fails to establish any impropriety in the CSB Form.
Moreover, any uncertainty about the propriety of the $35 fee could have been
cleared up quickly and easily by simply looking at the court’s website or calling CSB or
Post Court Services; if Brewer found the explanation unsatisfactory, he could have asked
the trial court to address it. The trial court would have also been the place to raise any
claim of inability to pay the drug testing fee. In fact, any concern Brewer had with the
3
And even if the court clerk had referred the matter to CSB for installment
payments without Brewer’s knowledge, there is no showing that Brewer suffered any
prejudice: he does not point to any suggestion in the record, or even argue in his
appellate briefs, that he could have paid the fines and fees without an installment plan.
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CSB Form could have, and should have, been raised in the trial court rather than filing an
appeal that prompted the preparation of the appellate record, drove up litigation costs,
and unnecessarily prolonged the resolution of these $48 issues for months. While
California appellate courts stand ready to review large and small cases of every type to
the full extent of the law, Brewer’s concerns would have been more efficiently and
appropriately addressed elsewhere.
III. DISPOSITION
The judgment is affirmed.
NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.
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