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P. v. Luu
Filed 1/22/13 P. v. Luu CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
XUONG LUU,
Defendant and Appellant.
H038063
(Santa Clara County
Super. Ct. No. CC897137)
pleaded guilty to one count of failing to update his sex offender registration
within five working days of his birthday (Pen. Code, § 290.012, subd.
(a)).
On February 3, 2012, the court
sentenced defendant to a two-year
concurrently with a prison sentence that he was serving in a case in Sacramento
County. The People stipulated that
defendant would receive presentence custody credits at
"half-time." Accordingly, the
court awarded defendant 100 actual days of custody credits and 100 days of
conduct credits. Defendant filed a
timely notice of appeal and sought and was granted a certificate of probable
cause.
Defendant's appointed counsel has
filed an opening brief in which no issues are raised and asks this court for an
Counsel has declared that defendant was notified that no issues were
being raised by counsel on appeal and that an independent review under
being requested.
On
September 28, 2012, we notified defendant of his
own behalf within 30 days. That time has
passed and we have not received a response from defendant.
Pursuant
to Wende, supra,
25 Cal.3d 436, we have reviewed the entire record and have concluded there is
no arguable issue on appeal. However, we do find that the court erred in
considering defendant's ability to pay a court operations assessment (Pen.
Code, § 1465.8) and a criminal conviction assessment (Gov. Code, § 70373).
Pursuant
to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief
description of the . . . procedural history of the case, the crimes of which
the defendant was convicted, and the punishment imposed." (Id.
at p. 110.)
Since
appellant waived referral to the probation department, the record does not
contain a statement of the underlying facts.
Proceedings Below
On
February 28, 2008, defendant was charged by felony complaint with one count of
failing to update his sex offender registration within five working days of his
birthday (Pen. Code, § 290.012, subd. (a), count one) and one count of failing
to inform a law enforcement agency of his new address (Pen. Code, § 290, subd.
(f)(1)(A), count two).
On
January 4, 2012, defendant initialed and signed an "ADVISEMENT OF RIGHTS,
WAIVER, AND PLEA FORM."
name="_ftnref1" title="">[1] At the January 4, 2012 hearing on defendant's change
of plea, the court confirmed with defendant that he had gone over the form with
his attorney and that the initials and signature on the form were his. Thereafter, defendant entered his guilty plea.
As
noted on February 3, 2012, pursuant to the negotiated disposition, the court
sentenced defendant to a two year concurrent prison term; the court dismissed
count two in accordance with the negotiated disposition. However, the court found that defendant did
not have the ability to pay a court operations assessment (Pen. Code, §
1465.8),
name="_ftnref2" title="">[2] a criminal conviction assessment (Gov. Code, § 70373) or a criminal
justice administration fee (Gov. Code, § 29550 et seq.)
We
find that the court erred in finding that defendant did not have the ability to
pay a court operations assessment and a criminal conviction assessment that the
probation officer recommended defendant pay.
Penal Code section 1465.8, subdivision (a), requires the court to impose
an assessment on every conviction "[t]o assist in funding court
operations." Similarly, Government
Code section 70373, subdivision (a)(1) requires the court to impose an
assessment on every felony conviction "[t]o ensure and maintain adequate funding
for court facilities."
a defendant's ability to pay . . . ." (People v. Shiseop Kim (2011) 193 Cal.App.4th 836, 842.)
As
these are mandatory provisions that must be imposed and, as noted, there is no
ability to pay requirement, we may correct the order on appeal in the first
instance (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v.
Rodriguez (2000) 80 Cal.App.4th 372, 374); we do not see any purpose in
soliciting supplementary briefing regarding this disposition. Should defendant claim to be aggrieved as a
result, he may petition for rehearing.
(Gov. Code, § 68081.)
The
judgment is modified to include a court operations assessment pursuant to Penal
Code section 1465.8 and criminal conviction assessment pursuant to Government
Code section 70373 as recommended in the probation officer's report in this
case. As so modified the judgment is
affirmed. The clerk of the court is
directed to amend the abstract of judgment to reflect imposition of these
assessments and forward a copy to the Department of Corrections and
Rehabilitation.
_________________________________
ELIA,
Acting P. J.
WE CONCUR:
___________________________________
BAMATTRE-MANOUKIAN, J.
___________________________________
MÃRQUEZ, J.
name="_ftn1" title="">[1] In the form,
defendant was advised of his constitutional rights, the consequences of his
pleas, including immigration consequences and the maximum term of imprisonment
for the offenses to which he would be entering his pleas. Defendant waived his constitutional rights.
name="_ftn2" title="">[2] The assessment in
Penal Code section 1465.8 was formerly known as a court security fee. However, as part of the 2011 Realignment
legislation, the Legislature revised Penal Code section 1465.8 to provide that
an "assessment" be imposed to "assist in funding court
operations."
