P. v. Romano
Filed 4/22/13 P. v. Romano 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NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
TELESFORO
ROMANO,
Defendant and Appellant.
B242232
(Los Angeles County
Super. Ct. No. BA364494)
APPEAL
from a judgment of the Superior Court of
County, Monica Bachner, Judge.
Affirmed as modified.
Richard Lennon, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant
Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and
Respondent.
______________________________
Telesforo
Romano appeals from the judgment entered after he pled no contest to charges of
kidnapping and rape and admitted
personally using a gun in committing both offenses. His appointed counsel filed a
v. Wende (1979) 25 Cal.3d 436.) On November 1, 2012, we
directed appointed counsel to send the record and a copy of counsel’s brief to
Romano and notified Romano of his right to respond within 30 days. We received no response.
The
notice of appeal states that the appeal is based upon the sentence or other
matters occurring after entry of the plea that do not affect the validity of
the plea. (Cal. Rules of Court, rule
8.304(b)(4).) We have reviewed the whole
record under People v. Kelly (2006)
40 Cal.4th 106, focusing upon matters that arose after entry of the plea. Our review revealed that the minute order and
abstract of judgment do not reflect the amount of the sexual offender fine
under Penal Code section 290.3,
amount and statutory bases of penalty assessments on the fine. We invited the parties to brief the issue of
penalty assessments. After considering
their briefs, we modify the judgment to reflect penalty assessments on the sex
offender fine in the amount of $780. As
modified, the judgment is affirmed.
Romano
was charged with kidnapping (§ 207, subd. (a)), rape (§261, subd. (a)(2)),
criminal threats (§ 422), and assault with a firearm (§ 245, subd.
(a)(1)). The charges included personal
gun use allegations. (§§ 12022.5,
12022.53.) He also was charged with two
counts of illegal gun possession. (§§ 12021, subd. (a)(1), 12025, subd.
(a)(2).) The offenses were allegedly
committed in October 2009. Two prior
convictions were alleged as prior prison-term enhancements. (§ 667, subd. (b).)
At the
start of his jury trial, Romano pled no contest to the kidnapping and rape
charges and admitted the gun use allegations as to both. He was sentenced pursuant to a plea bargain
to 37 years in prison, consisting of an 8-year upper term for the kidnapping,
with a 20-year gun enhancement, and a six-year, middle-term for the rape with a
3-year gun enhancement. The court
imposed fees and fines and awarded presentence credit. It also ordered
restitution to the Victim Compensation and Government Claims Board.
This
timely appeal followed.
On the
record, the court imposed a $300 sex offender fine under section 290.3, plus
unspecified penalty assessments. The
minute order and abstract of judgment do not reflect the amount of the sex
offender fine the court imposed or the amount of penalty assessments on the
fine and their statutory bases.
The
court’s oral pronouncement of a sentence, rather than its entry in the minute
order and abstract of judgment, constitutes the judgment. (People
v. Mesa (1975) 14 Cal.3d 466, 471.)
A short-hand reference to “penalty assessments†on the record, followed
by the clerk’s inclusion of the penalty assessment amounts in the minute order
and abstract of judgment, is a common and acceptable practice. (See People
v. Voit (2011) 200 Cal.App.4th 1353, 1373; People v. Sharret (2011) 191
Cal.App.4th 859, 864; but see People v.
High (2004) 119 Cal.App.4th 1192, 1200 [error not to recite all fines,
fees, penalties and surcharges into record at sentencing].) All fines, fees, and penalties imposed must
be separately listed in the abstract of judgment. (People
v. High, at p. 1200.)
Both
sides represent that the penalty assessments applicable to the fine in this
case total $840, consisting of a 100 percent state penalty (§ 1464, subd.
(a)(1)); a 70 percent county penalty (Gov. Code, § 76000, subd. (a)(1)); a 20
percent state surcharge (§ 1465.7, subd. (a)); a 30 percent state court
construction penalty (Gov. Code, § 70372, subd. (a)(1)); a 20 percent
emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)); a
10 percent penalty for implementing the DNA Fingerprint, Unsolved Crime and
Innocence Protection Act (Gov. Code, § 76104.6, subd. (a)(1)); and a 30 percent
state-only penalty to finance Department of Justice forensic laboratories (Gov. Code, § 76104.7, subd. (a)). The parties rely on the penalty assessments
listed in People v. Voit,
and People v. Castellanos (2009)
175 Cal.App.4th 1524, 1528–1530. We
note that both cases list a 10 percent penalty assessment under Government Code
section 76104.7. The rate was increased
to 30 percent, effective in 2010, after Romano’s offenses took place. (See Stats. 2009-2010, ch. 3, § 1, eff.
June 10, 2010.) The increased penalty
does not apply to Romano. (See
fund-raising measures cannot be applied retroactively].) The penalty assessments should be $780,
rather than $840.
Because
the penalty assessments are mandatory, their omission may be corrected for the
first time on appeal. (
specify penalty assessments in the amount of $780. Additionally, under our authority to correct
clerical errors (People v. Mitchell
(2001) 26 Cal.4th 181, 185), we order the abstract of judgment amended to
reflect the court’s imposition of a $300 fine under section 290.3 and the
penalty assessments we already mentioned.
Romano’s
appointed counsel urges us to remand the case so that the trial court could
determine whether Romano has the ability to pay the sex offender fine in light
of the penalty assessments. We find a
remand unnecessary under the circumstances.
While the court did not specify the exact amount of penalty assessments
on the record, it indicated its intent to impose additional penalties, and
stated that all fines and fees may be deducted from Romano’s prison
earnings. Romano did not object. Any argument based on his inability to pay is
forfeited. (See People v. McMahan (1992) 3 Cal.App.4th 740, 749–750.)
The judgment is affirmed
as modified. The abstract of judgment
must be amended to reflect the $300 sex offender fine under section 290.3 and
$780 in penalty assessments on the fine.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN,
P. J.
We
concur:
WILLHITE, J.
MANELLA, J.
