Filed 4/2/21 P. v. Huggins CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306062
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA089399)
v.
DARRELL HUGGINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Terrell, Judge. Affirmed as modified.
Lenore De Vita, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Darrell Tyrone Huggins appeals
from the judgment entered after he was resentenced following
our prior decision on appeal vacating his original sentence.1
Defendant contends that the trial court erred in imposing a sex
offender fine after finding that defendant did not have the ability
to pay fines and fees, and that he is entitled to three additional
days of presentence custody credit. Defendant also seeks
correction of the court’s minutes and abstract of judgment to
accurately reflect the trial court’s oral pronouncements. We
agree that the trial court erred in imposing the sex offender fine
and that defendant is entitled to additional custody credit. As
respondent forfeited below any objection to defendant’s remaining
contentions as well as on appeal, we order the correction of the
court’s minutes and abstract of judgment as requested by both
defendant and respondent.
BACKGROUND
In 2018, defendant was convicted of assault to commit rape
in violation of Penal Code section 220, subdivision (a)(1)2 (count
1), and dissuading a witness by force or threat in violation of
section 136.1, subdivision (c)(1) (count 2). Defendant admitted
two prior robbery convictions as serious felonies, but did not
admit that they qualified as strikes. The trial court found that
the convictions qualified as strikes, and sentenced defendant as a
third strike offender to a total prison term of 30 years to life as to
__________________________________________________________
1 See People v. Huggins (July 31, 2019, B289362) [nonpub
opn.] (Huggins I).
2 All further statutory references are to the Penal Code,
unless otherwise indicated.
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count 1, with the same sentence as to count 2, to run concurrently
with count 1. In addition, the court imposed mandatory fines and
fees.
Defendant appealed from the judgment, claiming that the
two prior convictions, one from Florida and the other in Georgia,
did not qualify as strikes. (See Huggins I, supra, B289362.) We
agreed and vacated the sentence, including any fines, fees, and
assessments imposed, and remanded the matter for resentencing,
while otherwise affirming the judgment of conviction. (Huggins I,
supra, B289362.)
On April 14, 2020, the trial court resentenced defendant,
but then recalled the sentence due to a failure to advise
defendant of his right to appeal. On April 20, 2020, defendant
was resentenced on count 1 to the middle term of four years, and
on count 2, to a consecutive middle term of three years pursuant
to section 1170.15. The court found that defendant did not have
the ability to pay the $30 criminal conviction assessment
pursuant to Government Code section 70373 or the $40 court
operations assessment as to each count pursuant to
section 1465.8, subdivision (a)(1), and waived the assessments.
The court imposed a $300 parole revocation fine which it stayed,
as well as a $300 restitution fine, which it also stayed. The court
imposed a $300 sex offender fine based upon the mistaken belief
that the fine was mandatory under section 290.3. The trial court
calculated custody credit as 1,122 days, consisting of 976 actual
days and 146 days of conduct credit.
Defendant again appealed from the judgment.
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DISCUSSION
I. Sex offender fine
Defendant contends that the trial court erred in its
understanding that the $300 sex offender fine could not be
waived, and that the imposition of the fine was unauthorized as
the court had found defendant did not have the ability to pay
fines and fees. Respondent agrees.
Those “convicted of any offense specified in subdivision (c)
of Section 290 [which includes section 220, subdivision (a)(1)]
shall, in addition to any imprisonment or fine, or both, imposed
for commission of the underlying offense, be punished by a fine of
three hundred dollars ($300) . . . , unless the court determines
that the defendant does not have the ability to pay the fine.”
(§ 290.3, subd. (a), italics added.) Here, the trial court found that
defendant did not have the ability to pay a $300 restitution fine,
a $60 court facilities assessment, or a $80 court operations
assessment, and mistakenly imposed the sex offender fine. As
respondent notes, if defendant did not have the ability to pay
those amounts, it follows that he did not have the ability to pay a
$300 sex offender fine.
“[S]ection 290.3, subdivision (a) requires the trial court to
impose a fine of the prescribed amount, or to impose no fine at all
if it determines that the defendant does not have the ability to
pay the fine.” (People v. Walz (2008) 160 Cal.App.4th 1364,
1370.) As the trial court determined that defendant did not have
the ability to pay any other fines and assessments, we agree that
the trial court erred in imposing the sex offender fine. Thus, both
the fine and the penalty assessments surcharge attached to the
fine are stricken as requested by both defendant and respondent.
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(See People v. Hamed (2013) 221 Cal.App.4th 928, 940-941;
People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
II. Custody credit
Defendant contends that the custody credit was
inaccurately calculated. He was credited with 1122 days,
comprised of 976 actual days and 146 days of conduct credit.
Defendant was arrested August 16, 2017 and sentenced April 20,
2020. The number of days between those dates is 979, not 976.
Defendant does not dispute the calculation of his conduct credits
at 146 days. Respondent agrees that defendant is entitled to
three additional days of custody credit, and that the abstract of
judgment should be amended to so reflect.
III. Correction of the minutes and abstract of judgment
Defendant asks that the abstract of judgment be amended
to accurately reflect the imposition of fines and fees by omitting
the sex offender fine, as well as the $870 in penalty assessments
and the $60 surcharge attached to the fine. As we have agreed
that the sex offender fine was unauthorized, we will strike it and
order the abstract amended accordingly.
The abstract also indicates that the restitution fine is
payable forthwith, although the trial court stayed the fine. A
restitution fine need not be imposed if the trial court finds a
compelling and extraordinary reason not to do so, but a
defendant’s inability to pay does not qualify as a compelling and
extraordinary reason. (§ 1202.4, subd. (c).) However, the
prosecution did not object below or claim that there was no
compelling or extraordinary reason for the court’s order, and
respondent does not challenge the order here. We thus order the
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abstract amended, as we have no occasion to overrule the trial
court under such circumstances. (See People v. Tillman (2000) 22
Cal.4th 300, 301-302.)
In addition, the abstract erroneously stated that the $30
criminal conviction assessment pursuant to Government Code
section 70373 and the $40 court operations assessment pursuant
to section 1465.8, subdivision (a)(1), were imposed as to each
count. The trial court waived the assessments. The two statutes
are silent as to whether a defendant’s ability to pay may or may
not be considered, although at least one court has held the fees to
be mandatory. (See People v. Woods (2010) 191 Cal.App.4th 269,
272.) Here, however, the prosecution did not object below, does
not claim that the fees must be imposed, and joins defendant in
seeking modification of the abstract of judgment to reflect the
waiver of the fees. Under such circumstances, we will not disturb
the trial court’s order, and order the abstract corrected.
(Cf. People v. Tillman, supra, 22 Cal.4th 301-302 [prosecutor’s
failure to object waives trial court’s error in failing to state
reasons not to impose a restitution fine].)
DISPOSITION
The judgment is modified as follows: the $300 sex offender
fine is stricken, along with any penalty assessments or
surcharge; and defendant is awarded three additional actual days
of custody credit for a total of 979 actual days, plus 146 days of
conduct credit. In addition, the minutes and amended abstract
shall reflect that the sentencing court stayed the $300 restitution
fine and waived the criminal conviction assessment pursuant to
Government Code section 70373 as well as the court operations
assessment pursuant to section 1465.8, subdivision (a)(1). The
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superior court is directed to issue an amended abstract of
judgment consistent with this order, and to then forward a
certified copy of the amended abstract to the Department of
Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
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People v. Huggins CA2/2
Combined Opinion