P. v. Fonseca
Filed 6/24/13 P. v. Fonseca CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
XAVIER
FONSECA,
Defendant and Appellant.
B241882
(Los Angeles County
Super. Ct. No. KA096955)
APPEAL
from a judgment of the Superior Court of
County, Steven D. Blades, Judge. Affirmed as Modified.
Law
Offices of Allen G. Weinberg and Derek K. Kowata, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and
Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.
introduction
Defendant Xavier Fonseca appeals from
the judgment entered following his conviction for lewd acts upon a child (Pen.
Code,
§ 288, subd. (c)(1)), unlawful sexual intercourse (§ 261.5, subds.
(c), (d)), and oral copulation of a person under age 18 (§ 288a, subd.
(b)(1)). He contends that the court
erred in imposing a $40 criminal
assessment for each conviction instead of a $30 fee for each. Further, he contends that the trial court
miscalculated both his presentence custody and conduct credits. Finally, he asserts that the matter should be
remanded to the trial court to prepare an amended abstract of judgment
itemizing the statutory bases for the penalty assessments imposed. The Attorney General concedes each of these
points, and we agree. As modified, the
judgment is affirmed.
procedural background
Fonseca was charged with the above
sexual offenses involving his minor niece, with the first offense occurring
between September and November of 2010 and the last in April or May 2011.
counts, was filed on March 20, 2012.
On May 9, 2012, a jury convicted Fonseca of each of
the six counts with which he was charged.
He was sentenced on June 7, 2012 to a total of six years four months in
prison, consisting of the middle term of three years for count 2 (§ 261.5,
subd. (d)), plus consecutive terms of eight months (one-third the middle term)
each for count 1 (§ 288, subd. (c)(1)), count 3 (§ 261.5, subd. (c)),
count 4 (§ 288a, subd. (b)(1), count 5 (§ 261.5, subd. (c)), and
count 6 (§ 288a, subd. (b)(1)). He
was ordered to pay a $240 restitution fine (§ 1202.4, subd. (b)), a $240
parole revocation fine (§ 1202.45), a $300 sexual assault fine
(§ 290.3, subd. (a)) plus penalty assessments of $840 and a surcharge of 20
percent ($60), a $40 court operation assessment for each conviction
(§ 1465.8, subd. (a)(1)), and a $40 criminal conviction assessment for
each conviction (Gov. Code, § 70373).
He was also ordered to register as a sex offender (§ 290).
The court determined Fonseca’s
presentence credits to be 37 days of actual custody and 5 days of conduct
credit, for a total of 42 days of credit to offset his sentence.
Fonseca timely appealed.
discussion
I.
Fonseca contends, and the Attorney
General concedes, that that trial court erroneously imposed a $40 criminal
conviction assessment for each of the six convictions, when the proper amount
is $30 for each. (Gov. Code,
§ 70373, subd. (a)(1) [“The assessment shall be imposed in the amount of
thirty dollars ($30) for each misdemeanor or felony.â€].) Therefore, we order the sentence corrected to
reflect that the total fine under Government Code section 70373 is $180, rather
than $240. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [an unauthorized
sentence “is subject to judicial correction whenever the error comes to the
attention of the reviewing court.â€].)
II.
At sentencing, the trial court awarded
Fonseca 37 days of actual custody credit plus 5 days of conduct credit,
calculated at 15 percent, for a total of 42 days. Fonseca challenges the calculation of both
credits. The Attorney General concedes
that these credits were miscalculated, and we agree.
Fonseca first contends that he should
have received 39 days of actual custody credit, rather than 37. “A defendant is entitled to actual custody
credit for ‘all days of custody’ in county jail and residential treatment
facilities, including partial days.
[Citations.] Calculation of
custody credit begins on the day of arrest and continues through the day of
sentencing.†(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 (
custody on May 9, 2012, and was sentenced on June 7, for a
total span of 30 days in custody. The
trial court correctly calculated 30 days in custody for that time span. However, the court miscalculated the days
Fonseca had spent in custody between his arrest on February 21,
2012 and his
release on bail on February 29, 2012, calculating only 7 days. Apparently the trial court did not include
the date of his arrest or the day he was bailed out. Because we must include those partial days
spent in custody, we calculate the time spent custody between his arrest on February
21, 2012 and
his release on bail on February 29, 2012
as totaling 9 days, not 7 days.
Therefore, we adjust the custody credits to 39 days, instead of 37 days.
The trial court also erred in
calculating Fonseca’s presentence custody credit under section 4019, which
provides that a criminal defendant may earn additional presentence credit
against his or her sentence for performing assigned labor (§ 4019, subd.
(b)), and for complying with applicable rules and regulations (§ 4019,
subd. (c)). Section 4019 been amended
numerous times in recent years to alter the formula for earning credits.
Before January 25,
2010,
defendants were entitled to “one-for-two†conduct credits, or two days for
every four days of actual time served in presentence custody. (Former § 4019, subd. (f), as amended by
Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.) Effective January 25, 2010, the Legislature
amended section 4019 to accelerate the accrual of presentence conduct credit
such that certain defendants earned two days of conduct credit for every two
days in custody, known as “one-for-one†conduct credits. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28,
§ 50; see Rajanayagam, supra,
211 Cal.App.4th at p. 48.) Exempted from
this amendment were registered sex offenders and defendants committed for a
serious felony or who had prior serious or violent felony convictions. These defendants were subject to the
pre-January 25, 2010 formula for calculating presentence credits. (Former § 4019, subds. (b)(2) &
(c)(2); People v. Kennedy (2012) 209
Cal.App.4th 385, 395.)
Effective September 28, 2010, the
Legislature again amended section 4019 for crimes committed after that
date. (Stats. 2010, ch. 426, §§ 1,
2, 5.) Subdivisions (b) and (g)
reinstated the less generous pre-January 25, 2010 one-for-two formula whereby
all local prisoners could earn two days of conduct credit for every four days
in jail. (Rajanayagam, supra, 211 Cal.App.4th at pp. 48-49, 51.) As to most prisoners, however, that formula
was superseded by a more liberal formula provided by 2010 amendments to section
2933, subdivision (e)(1), that allowed one-for-one credits. (Stats. 2010, ch. 426, § 1.) However, the enacting statute declared that,
as to certain classes of prisoners including defendants required to register as
sex offenders, this formula was inapplicable, and the one-for-two formula set
forth in section 4019 would continue to govern.
(Former § 2933, subd. (e)(3); Stats. 2010, ch. 426, § 1.)
The statute was amended again in 2011
to provide that “a term of four days will be deemed to have been served for
every two days spent in actual custody.â€
(§ 4019, subd. (f).) The
amendment was expressly made operative only as to “prisoners who are confined .
. . for a crime committed on or after October 1, 2011,†and thus this amendment
is not applicable to Fonseca.
(§ 4019, subd. (h), as amended by Stats. 2011, ch. 39, § 53;
see People v. Verba (2012) 210
Cal.App.4th 991, 993-994.)
Fonseca’s first offense occurred
between September and November of 2010, and thus the calculation of conduct
credit applicable to his sentence for this offense could be subject to the
version of the statute that was effective up until September 28, 2010. The other offenses took place between January
and May of 2011, and thus the version that was effective from September 28,
2010 until September 30, 2011, governs as to these offenses. However, under both versions, as discussed
above, Fonseca was entitled to one-for-two credits because he was required to
register as a sex offender. (Former
§ 4019, subds. (b)(2) & (c)(2), Stats. 2009, 3d Ex. Sess. 2009–2010,
ch. 28, § 50; former § 2933, subd. (e), Stats. 2010, ch. 426,
§ 1.) The Attorney General
correctly concedes that the one-for-two formula should have been applied.
Rather than applying the one-for-two
formula, however, the trial court concluded that Fonseca was entitled to only
15 percent of conduct credit under section 2933.1, which provides for a 15
percent formula for any person who is convicted of a felony offense listed in subdivision
(c) of section 667.5. (§ 2933.1,
subds. (a)-(c).) The prosecutor and the
defense advised the court that some of the offenses for which Fonseca was
convicted constituted violent felonies pursuant to section 667.5. As both parties acknowledge on appeal, they
were incorrect. Fonseca was not
convicted of a crime that constitutes a “violent felony†under section
667.5. Therefore, the court should not
have applied the 15 percent formula in determining his conduct credit. (See People
v. Brewer (2011) 192 Cal.App.4th 457, 460.)
Under the one-for-two formula that should have been applied, Fonseca was
eligible for 18 days of conduct custody.
Accordingly, the judgment is modified
to reflect that Fonseca has earned 39 days of custody credit and 18 days of
conduct credit.
III.
Assessments
Fonseca contends and the Attorney
General concedes that this case must be remanded to the trial court so that it
may specify in the abstract of judgment the statutory bases for the imposition
of all fines and fees. We agree.
The trial court orally pronounced that
it was imposing a $300 sex offender fine under section 290.3, subdivision (a),
plus unspecified penalty assessments.
The minute order and abstract of judgment reflect that penalty assessments
in the amount of $840, plus a 20 percent surcharge in the amount of $60, were
imposed. Neither the minute order nor
the abstract of judgment describes the statutory basis for imposing the $840
penalty assessments plus $60 surcharge.
“In Los Angeles County, trial courts
frequently orally impose the penalties and surcharge . . . by a shorthand
reference to ‘penalty assessments.’ The
responsibility then falls to the trial court clerk to specify the penalties and
surcharge in appropriate amounts in the minutes and, more importantly, the
abstract of judgment. This is an
acceptable practice.†(
859, 864.) Ultimately, however, the
abstract of judgment must “separately list, with the statutory basis, all
fines, fees and penalties imposed on each count.†(People
v. High (2004) 119 Cal.App.4th 1192, 1201 (High).) The
recitation of all the fees, fines and penalties on the record may be tedious,
shortcuts. All fines and fees must be
set forth in the abstract of judgment.
[Citations.] . . . If the abstract does not specify the amount
of each fine, the Department of Corrections cannot fulfill its statutory duty
to collect and forward deductions from prisoner wages to the appropriate
agency. [Citation.] At a minimum, the inclusion of all fines and
fees in the abstract may assist state and local agencies in their collection
efforts. [Citation.] Thus, even where the Department of
Corrections has no statutory obligation to collect a particular fee
. . . , the fee must be included in the abstract of
judgment.†(High, supra, 119 Cal.App.4th at p. 1200; see People v. Eddards (2008) 162 Cal.App.4th 712, 718.) The High
court remanded the case with directions to amend the abstract of judgment to
“separately list, with the statutory basis, all fines, fees and penalties
imposed on each count.†(
1201.)
Remand is similarly necessary
here. Neither the oral pronouncement of
judgment, the sentencing minute order, nor the abstract of judgment specifies
the statutory basis for the penalty assessments and surcharge. Although the amount of the penalty assessment
appears to have been correctly calculated by reference to the formula applied
in People v. Voit (2011) 200
Cal.App.4th 1353, 1373-1374, the trial court must correct the abstract of
judgment to separately list, with the statutory basis, all fines, fees and
penalties, as well as the amount of each.
disposition
The
judgment is modified to reflect that Fonseca is subject to a $180 court
facilities assessment fee under Government Code section 70373, rather than a
$240 fee, and that he has earned 57 days of presentence custody credit,
consisting of 39 days in actual custody and 18 days of conduct credit. The trial court is directed to prepare an
amended abstract to include the above modifications and corrections, as well as
to specify the statutory basis and amount of each fine, penalty and fee, and to
forward a certified copy of the amended abstract to the
WILLHITE,
Acting P. J.
We
concur:
MANELLA,
J.
SUZUKAWA,
J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] Because the only issue on appeal
relates to the calculation of fines and presentence custody credits, we do not
summarize the facts of the offense.
