P. v. Nava
Filed 1/27/14 P. v. Nava CA2/4
NOT TO BE PUBLISHED
IN THE 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
ROGELIO NAVA,
Defendant
and Appellant.
B248183
(Los
Angeles County
Super. Ct. No. BA380638)
APPEAL
from an order of the Superior Court of Los Angeles County, Henry J. Hall,
Judge. Vacated and remanded.
James
Koester, 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, and Margaret E. Maxwell, Deputy Attorney General, for
Plaintiff and Respondent.
Defendant Rogelio
Nava appeals from the judgment entered following the trial court’s finding that
he violated the terms and conditions of
probation. He contends the court
erred by ordering him to pay restitution to a victim and failing to either
impose or strike a sentence for an enhancement.
The Attorney General agrees with defendant and also requests that we
order the abstract of judgment amended to reflect the imposition of mandatory
fines. We will vacate the
court to correct the abstract of judgment.
BACKGROUND
By an information filed March 2, 2011, defendant was charged with selling,
transporting, or offering to sell a controlled substance, to wit, cocaine base,
a violation of Health and Safety Code section 11352. He also was alleged to have served a prior
prison term within the meaning of Penal Code section 667.5, subdivision (b).
On May 18, 2011,
defendant entered a no contest plea to the
had served a prior prison term. The
trial court suspended the imposition of sentence and placed defendant on three
years of formal probation and assessed various fines and fees.
On August 11, 2012, defendant was arrested for felony vandalism. (Pen. Code, § 594, subd. (b)(1).) The district attorney’s office filed a new
case based on the vandalism arrest, and defendant’s probation was summarily revoked.
On April 9, 2013,
after a hearing, defendant was found in violation of probation. He was sentenced to five years for the
violation of Health and
Safety Code section 11352. No
sentence was imposed for the prior prison term allegation. The felony vandalism case was dismissed on
the prosecution’s motion. The court signed
an order requiring defendant to pay $1,200 for damage done to the victim of the
vandalism, Pollo Campero restaurant.
appeal followed.
The parties agree that in this posture
of the case defendant cannot be compelled to pay restitution for criminal
conduct for which he was not convicted, and the matter must be remanded for the
trial court to render a sentencing decision on the prior prison term allegation. They are correct on both counts.
Generally, restitution awards
pursuant to section 1202.4 are limited to losses resulting from criminal
conduct for which a defendant is convicted.
(People v. Woods (2008) 161
Cal.App.4th 1045, 1049.) Although there
is authority that allows a trial court discretion to order restitution not
caused by a defendant’s criminal conduct as a condition of probation (
1114, 1121), a court lacks the power to do so when, as here, probation is
revoked and sentence is imposed. (
With respect to the section 667.5,
subdivision (b) prior prison term allegation, the trial court’s failure to
impose or strike the mandatory one-year term resulted in a legally unauthorized
sentence that may be corrected on appeal.
(People v.
1562.) The matter must be remanded for
the trial court to exercise its discretion to either impose the one-year term
or strike it and provide reasons pursuant to section 1385. (See People
v. Bradley (1998) 64 Cal.App.4th 386, 391-392.)
The Attorney General also points out
that when the trial court orally pronounced judgment, it did not impose the
mandatory $30 court construction fee pursuant to Government Code section 70373. We agree.
In addition, the minute order does not reflect that the court imposed
the $50 laboratory analysis fee pursuant to Health and Safety Code section
11372.5. We further observed that the
trial court failed to add the required penalties pursuant to section 1464 and
Government Code section 76000 to the laboratory analysis fine. That oversight resulted in an unauthorized
sentence. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153.) When an assessment and penalties “are
mandatory, their omission may be corrected for the first time on appeal.†(People
v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.)
The restitution order requiring defendant to pay $1,200 to the Pollo
Campero restaurant is vacated. The
matter is remanded for the trial court to make a sentencing decision with respect
to the section 667.5, subdivision (b) prior prison term allegation and to amend
the abstract of judgment to reflect the sentence, if any, imposed with respect
to that allegation, the imposition of a $30 fee pursuant to Government Code
section 70373, the $50 laboratory analysis fee pursuant to Health and Safety
Code section 11372.5, and the penalties pursuant to section 1464 and Government
Code section 76000. The clerk is
directed to forward a copy of the amended abstract to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON,
J.
We concur:
EPSTEIN,
P. J. WILLHITE, J.
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the facts of the underlying cases involved.
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the Penal Code.
