P. v. Gonsalvez
Filed 5/10/13 P. v. Gonsalvez CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. JOHNNY MANUEL GONSALVEZ, Defendant and Appellant. | C072242 (Super. Ct. No. 11F06357) |
This appeal
comes to us pursuant to
436. We shall remand the matter for
correction of the abstract of judgment and otherwise affirm.
On January 17, 2012, a complaint deemed
an information was filed in case No. 11F06357 accusing defendant Johnny Manuel
Gonsalvez of assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)).
name="_ftnref1" title="">[1]
On June 5, 2012, defendant pleaded no
contest to the assault charge. The
stipulated factual basis for the plea was as follows: On or about September 13, 2011, defendant had a verbal argument with
the victim, Tamara S. After she slapped
him, he struck her with a box cutter, causing a laceration approximately three
inches long on her back.
The trial
court also found that defendant had violated the terms and conditions of
probation in two trailing cases, case Nos. 09F02295 and 10F07079, in that he
failed to obey all laws.
The trial
court referred the matter to the Department
of Corrections and Rehabilitation for a diagnostic study and evaluation (§
1203.03).
On August
31, 2012, having reviewed the diagnostic evaluation, the trial court denied
probation and sentenced defendant to a three-year term in
probation in case Nos. 09F02295 and 10F07079.
As to case No. 10F07079, in which defendant was charged with possession
of narcotics and specified non-narcotics (Health & Saf. Code, § 11377,
subd. (a)), the court deleted defendant from the Proposition 36 program and
sentenced him to 16 months in state prison; because he received credit for time
served, this sentence did not add to his actual term.
The trial
court awarded defendant 530 days of presentence custody credit in case No. 11F06357
(354 days of actual credit and 176 days of conduct credit) and 716 days of
presentence custody credit in case No. 10F07079 (358 days of actual credit and
358 days of conduct credit). As to case
No. 11F06357, the court imposed a $240 restitution fine (§ 1202.4, subd. (b))
and a $240 suspended parole revocation restitution fine (§ 1202.45), a $40
court operations assessment fee (§ 1465.8, subd. (a)(1)(A)), a $340.01 main
jail booking fee and a $62.09 mail jail classification fee (Gov. Code, § 29550.2),
and a $30 court facility fee (Gov. Code, § 70373). The court reserved jurisdiction for an award
of restitution to the victim in an amount to be determined.
The
abstract of judgment also indicates a $200 restitution fine (§ 1202.4, subd.
(b)) and a $200 suspended parole revocation restitution fine (§ 1202.45) as to
case No. 10F07079, which the trial court did not orally impose.
We
appointed counsel to represent
defendant on appeal. Counsel filed an
opening brief that sets forth the facts of the case and requests this court to
review the record and determine whether there are any arguable issues on
appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right
to file a supplemental brief within 30 days of the date of filing of the
opening brief. More than 30 days
elapsed, and we received no communication from defendant. Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition
more favorable to defendant.
We
conclude, however, that the matter must be remanded for correction of the
abstract of judgment, because one of the two fines reflected thereon as to case
No. 10F07079 is improper.
The
restitution fine under section 1202.4, subdivision (b), is mandatory in every
case where a person is convicted of a crime, unless the trial court finds
compelling and extraordinary reasons for not imposing the fine and states them
on the record. The statute does not
contain any exception for cases where the defendant’s sentence will not result
in additional time in custody, as here.
The trial court did not state reasons on the record for not imposing the
fine. And when a defendant has committed
multiple crimes which are resolved in a single plea bargain, the defendant is
properly subject to a fine for each crime.
(People v. Soria (2010) 48
Cal.4th 58, 66.) Therefore, the fine
pursuant to section 1202.4, subdivision (b), is mandatory as to case No.
10F07079. But the result is different as
to the suspended parole revocation fine under section 1202.45, as we explain.
The
suspended parole revocation restitution fine is mandatory in every case where a
person is convicted of a crime and whose sentence “includes a period of parole.†(§ 1202.45.)
A person released from state prison on or after October 1, 2011, after
serving a prison term for an offense or “whose sentence has been deemed served
pursuant to Section 2900.5†is subject to parole only if his or her offense
constitutes a serious or violent felony, a strike, a crime which classifies him
or her as a “High Risk Sex Offender,†or one which requires him or her to
undergo treatment by the State Department of State Hospitals on release; all
other offenders are subject to postrelease supervision. (§ 3000.08, subds. (a), (b).) Because defendant’s presentence custody
credits as to case No. 10F07079 (716 days) exceed the sentence imposed (one
year four months), his sentence in that case has been deemed served. (§§ 1170, subd. (a)(3), 2900.5.) The offense for which he was sentenced in
that case (possession of narcotics under Health & Saf. Code, § 11377, subd.
(a)) does not fall into any of the categories of offenses that are subject to
parole under section 3000.08, subdivision (a).
Thus, defendant’s sentence in case No. 10F07079 does not include a
period of parole, and a suspended parole revocation restitution fine under
section 1202.45 may not be imposed in that case. We must therefore remand the matter with
directions to prepare a corrected abstract of judgment that deletes the fine
under section 1202.45 as to case No. 10F07079.
DISPOSITION
The matter is remanded to the
trial court with directions to order the preparation of a corrected abstract of
judgment that deletes the fine under section 1202.45 in case No. 10F07079. In all other respects, the judgment is
affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
MURRAY , J.
name="_ftn1" title="">[1] Undesignated section references are to
the Penal Code.
