P. v. Guarino
Filed 6/17/13 P. v. Guarino CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JUSTIN ANTHONY JOSEPH GUARINO,
Defendant and
Appellant.
G047035
(Super. Ct.
No. 10HF0523)
O P I N I O
N
Appeal from a judgment
of the Superior Court of
County, David A. Hoffer, Judge.
Affirmed as modified.
Gregory Marshall, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton
and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Justin
Anthony Joseph Guarino appeals from a judgment after a jury convicted him of
inflicted great bodily injury on Jessica Gledhill. Guarino argues three fees he was ordered to
pay are erroneous. We agree with one of
his claims, but the other two claims have no merit. We affirm the judgment as modified.
FACTS
Gledhill and three male
companions left a doughnut shop on Balboa Peninsula after celebrating St.
Patrick’s Day. As they walked by a group
of men, including a man later identified as Guarino, the two groups first exchanged
insults and then shoves. Gledhill kept
walking. When she heard a scream, she
turned around and was hit in the face by a pool ball thrown by Guarino. Gledhill suffered severe injuries requiring
surgeries. She could not see for a long
time, experienced dizziness, and suffered from pain long after the incident.
An information charged
Guarino with aggravated assault (Pen. Code, § 245, subd. (a)(1)), and
alleged he inflicted great bodily injury (Pen. Code, § 12022.7, subd.
(a)). The jury convicted him of the offense
and found true the enhancement. The
trial court suspended the sentence, placed him on five years of formal
probation, and ordered he serve 350 days in jail. The court “order[ed] the $70 conviction fee .
. . .â€
DISCUSSION
First, Guarino argues
Penal Code section 1465.8’s $70 “conviction fee†should be reduced to $40. The Attorney General correctly responds the
criminal conviction assessment is governed not by Penal Code section 1465.8,
which is the court operations/security fee, but instead by Government Code
section 70373 and that assessment should be reduced not to $40 but instead to
$30.
Government Code section
70373, subdivision (a)(1), requires a criminal conviction assessment of $30 for
each felony conviction. Guarino was
convicted of one felony offense, and thus the trial court should have imposed a
Government Code
section
70373 criminal conviction assessment of $30.
We modify the judgment to reflect a Government Code section 70373
criminal conviction assessment of $30.
Second, Guarino argues
the clerk’s minute order reflects two fees the trial court did not impose at
the sentencing hearing: (1) a $40 court
operations/security fee pursuant to Penal Code section 1465.8;
and (2) a $235 booking fee pursuant to Government Code section 29550.1. It is true the reporter’s transcript does not
reflect the court imposed a court operations/security fee (Pen. Code,
§ 1465.8), or a booking fee (Gov. Code, § 29550.1). Guarino is also correct that where there is a
discrepancy between the oral pronouncement of judgment and the clerk’s minute
order, the oral pronouncement of judgment controls. (People
v. Mesa (1975) 14 Cal.3d 466, 471.)
However, the Penal Code
section 1465.8, subdivision (a)(1), court operations/security fee [$40
assessment “shall be imposed†on every criminal conviction], and Government
Code section 29550.1 booking fee [“judgment of conviction shall contain an
order for payment of the amount of the criminal justice administration feeâ€],
are both mandatory fees the trial court must impose at the time of
sentencing. (People v. Robinson (2012) 209 Cal.App.4th 401, 405.) Additionally, when a fee is required as part
of a defendant’s sentence, we may correct any errors on appeal. (Ibid.)
Penal Code section
1465.8, subdivision (a), requires a $40 court operations/security fee on every
conviction for a criminal offense.
Guarino was convicted of one felony offense, and therefore, the trial
court should have imposed a Penal Code section 1465.8 court operations/security
fee of $40. We modify the judgment to
reflect a Penal Code section 1465.8 court operations/security fee of $40.
Government Code section
29550.1 requires a person convicted of an offense to reimburse a city whose
officers arrested the person for the criminal justice administration fee (a
booking fee). Newport Beach Police
Department officer arrested Guarino, and he was convicted of aggravated assault
related to that arrest. Thus, the trial
court should have imposed a Government Code section 29550.1 booking fee in the amount
of $235. We modify the judgment to
reflect a Government Code section 29550.1 booking fee in the amount of $235.
DISPOSITION
We modify the judgment
to reflect the following assessment and fees:
(1) a Government Code section 70373 criminal conviction assessment of
$30; (2) a Penal Code section 1465.8 court operations/security fee of $40; and
(3) a Government Code
section
29550.1 booking fee in the amount of $235.
The judgment is affirmed as modified.
O’LEARY,
P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
name="_ftn1" title="">[1] Guarino complains the
trial court did not orally pronounce two fees reflected in the court’s minute
order but he mistakenly identifies one as the Government Code section 70373
assessment when it is actually the Penal Code section 1465.8 fee.
