Filed 11/18/14 P. v. Donahoe CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065063

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN295799)

KEVIN DONAHOE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Aaron H.

Katz, Judge. Affirmed.

         Stephen M. Hinkle, under appointment by the Court of Appeal for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General,

for Plaintiff and Respondent.
       In 2012, Kevin Donahoe entered a negotiated guilty plea to stalking in violation of

a restraining order (Pen. Code,1 § 646.9, subd. (b)). The plea bargain contained the

statement "All fines satisfied by custody." The court suspended imposition of sentence

and placed Donahoe on three years' probation. The probation order required Donahoe to

pay a total of $1,264: $800 as a base fine, including surcharge and penalty assessment

(§ 1465.7, subd. (a)); a $40 court operations assessment (§ 1465.8); a $30 criminal

conviction assessment (Gov. Code, § 70373); a $154 criminal justice administration fee

(Gov. Code, § 29550.1); and a $240 restitution fine (§ 1202.4, subd. (b)). The court

suspended $240 probation revocation fine (§ 1202.44). The court orally stated that the

$800 fine was "concurrent with custody." The written probation order stated "All

fines . . . are to be paid . . . at the combined rate of $50.00 per month."

       In 2013, the court revoked probation. On October 11, the court sentenced

Donahoe to the three-year middle prison term and ordered "[a]ll previous imposed fines

will be reimposed." The abstract of judgment and sentencing minutes list Donahoe's

financial obligations as a $40 court operations assessment, a $30 criminal conviction

assessment, a $154 criminal justice administration fee, a $240 restitution fine (to be paid

"forthwith" from Donahoe's prison wages; § 2085.5, subd. (a)) and a suspended $240

parole revocation fine (§ 1202.45). The reporter's transcript, abstract of judgment and the

sentencing minutes do not refer to the probation revocation fine, the suspension of which




1      Further statutory references are to the Penal Code unless otherwise specified.
                                               2
should have been lifted. (§ 1202.44; People v. Guiffre (2008) 167 Cal.App.4th 430, 434-

435.)

        Donahoe appeals. He contends "[t]o the extent the court's [2012] oral

pronouncement of sentence referred only to the $800 fine to be satisfied by custody,

instead of 'all fines,' the court imposed an unauthorized sentence." He argues that

because his plea agreement contemplated that the $1,264 in fines would be satisfied by

custody, at the rate of $30 per day, and because his presentence custody and his custody

since October 11, 2013, "greatly exceed the 43 days required to satisfy the $1,264 fines

imposed[,] [t]his court [should] therefore issue an opinion stating that all fines have been

satisfied." We affirm.

                                       DISCUSSION

        By its terms, the plea bargain provided for the satisfaction of "fines" by custody,

not for the satisfaction of "assessments" or "fees" by custody. Thus, the plea bargain

provided for the satisfaction by custody of, at most, the $800 base fine and the restitution

fine. The restitution fine was excluded from such satisfaction by Donahoe's

acknowledgment on the change of plea form that he was required to pay a restitution fine

of between $200 and $10,000.2 At the 2012 sentencing hearing, the court carried out the

terms of the plea bargain by making the $800 base fine "concurrent with custody" and

requiring the remaining "fines" be paid at the "rate of $50.00 per month." At the 2013



2      Additionally, at the 2012 change of plea hearing, Donahoe testified that he
understood that if he violated the conditions of probation, he could be sent to prison and
be required to pay a $10,000 fine.
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sentencing hearing, the court did not mention the base fine, an implied statement that

Donahoe's time in custody had satisfied that fine, and ordered the restitution fine be paid.

       The above conclusion is borne out by section 2900.5, subdivision (a). When

Donahoe was sentenced in 2013, that subdivision allowed "days of custody" to be applied

toward the satisfaction of "any fine, on a proportional basis, including, but not limited to,

base fines and restitution fines, which may be imposed, at the rate of not less than thirty

dollars ($30) per day, or more, in the discretion of the court imposing the sentence. . . .

In any case where the court has imposed both a . . . term of imprisonment and a fine, any

days to be credited to the defendant shall first be applied to the term of imprisonment

imposed, and thereafter the remaining days, if any, shall be applied to the fine on a

proportional basis, including, but not limited to, base fines and restitution fines."3 This

section does not apply to assessments which are not considered punitive, such as the $40

court operations assessment (§ 1465.8) and the $30 criminal conviction assessment,

sometimes called a court facilities assessment (Gov. Code, § 70373). (People v.

Robinson (2012) 209 Cal.App.4th 401, 403-404, 407.) The $154 criminal justice

administration fee (Gov. Code, § 29550.1) is also not considered punitive. (See People v.

Rivera (1998) 65 Cal.App.4th 705 [Gov. Code, § 29550.2].) Donahoe concedes in his

reply brief that these two assessments and this fee "cannot be satisfied by application

of . . . section 2900.5."




3       In 2013, section 2900.5, subdivision (a), was amended to delete the references to
restitution fines. (Stats. 2013, ch. 59, § 07.)
                                              4
       Donahoe contends for the first time in his reply brief that the probation revocation

fine is also governed by the "all fines satisfied by custody" term of the plea agreement.

"It is axiomatic that arguments made for the first time in a reply brief will not be

entertained because of the unfairness to the other party." (People v. Tully (2012) 54

Cal.4th 952, 1075.)

                                      DISPOSITION

       The judgment is modified to reflect that the $240 probation revocation fine

(§ 1202.44) is now due. The trial court is directed to prepare an amended abstract of

judgment and forward it to the Department of Corrections and Rehabilitation.



                                                                                  NARES, J.

WE CONCUR:



             BENKE, Acting P. J.



                    O'ROURKE, J.




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