Wednesday, March 03, 2021

People v. Cummings (Cal. Ct. App. - March 3, 2021)

When one looks at published opinions from afar -- i.e., without access to the whole record -- sometimes you're at a disadvantage.  A perfect example is from this opinion today.

One of the questions (at the end) is whether the defendant was properly ordered to pay the costs of her appointed counsel.  The Court of Appeal holds that the issue was forfeited because counsel made a tactical decision not to object to these costs.  But the panel also reads the record to only impose $1525 of such costs, even though the written judgment was for over $15,000 -- which, it says, was probably why defense counsel decided not to object.  So it corrects the judgment.

But I can't help but wonder if that's actually what went down below.

There's no probation report, but the minute order clearly says that the defendant has to pay costs of $15,025.  Moreover, as the Court of Appeal notes, "at the end of the specific conditions of probation, the following handwritten notation appears: “attys fees $15,025.00 thru DRR.”  The Court of Appeal says (correctly) that "[t]he record does not indicate where the sum of $15,025 came from," but presumably it came from the clerk or the judge, right?

So it seems like the lower court wanted to impose $15,000+.

But here's the part of the transcript that the Court of Appeal holds requires correction of the cost award to around $1500:

"As part of the conditions of probation the court stated: 'I will order you to pay the cost of your attorney services which is pretrial disposition it says limited investigation motions let’s make this $1525.'"

Okay.  That might be right.  The Court of Appeal says:  "It may very well be that defendant did not object because the trial court ordered payment of $1525 instead of $15,025, an apparent discount. Indeed, we read the record, such as it is, and the court’s comment – “let’s make this $1525” -- as indicating the court intended to reduce the costs to 10 percent of the stated amount."

Put to one side that it's not actually ten percent:  that'd be $1502.50, not $1525.  (A court that wanted to make an award of ten percent would probably just round the $15,025 principal it to an even $1500.)

But let's assume that (1) the trial court made something like a math error, and (2) the Court of Appeal was just speaking loosely when it said "ten percent."  There's tons even just in the Court of Appeal's own opinion to suspect that the fault here is the court reporter's -- that s/he left off a "0" when s/he transcribed the oral pronouncement (of $15,025) as "$1525".

Let's just take, for example, the two sentences that the court reporter transcribed occurring immediately after the $1525/$15,025 number.  Those get transcribed (in the Court of Appeal's opinion) as:  "You can . . . talk to the Department of Revenue Recovery about a payment schedule for that. If it turns out that you are satisfied [sic] with that schedule, you have the right to return here.”  The Court of Appeal adds that "[sic]" -- again, correctly -- because I'm confident the trial judge actually said "unsatisfied."  Add to that to an earlier transcription that read (as described in today's opinion):  "The People also look to Mitchell v[.] California Department of Corrections and Rehabilitation at 2011, US District Lexus 112916."  That's a minor error, to be sure, but, yeah, I bet the trial judge didn't actually say "Lexus."  (Let's hope, anyway.)

The point is simply that it's quite conceivable that the oral pronouncement was actually $15,025 but that the court reporter wrote it down wrong -- but that this number was written down correctly both in the handwritten notes as well as in the judgment.  As opposed to the (admittedly possible) "ten percent discount" hypothesized by the Court of Appeal.

So maybe Justice Murray gets this right, but maybe he gets it wrong.  Depends on how you read the record -- and how much you trust the stenographer/record.