P. v. Talavera
Filed 6/24/13
P. v. Talavera CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
VERONICA
ESTELA TALAVERA,
Defendant and Appellant.
B240366
(Los Angeles County
Super. Ct. No. MA053354)
APPEAL from a judgment of the Superior Court of
County. Charles A.
Chung, Judge. Affirmed as modified.
Melanie K. Dorian, 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, Paul M.
Roadarmel, Jr. and Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant and appellant Veronica Estela Talavera
(defendant) appeals from a judgment of conviction of five felony counts. She challenges two counts,
claiming those convictions were not supported by substantial evidence. Defendant also requests a review of the sealed transcripts of
the trial court’s hearing on her Pitchess
motion.
title="">[1] Respondent asks that we correct the judgment
to reflect the true amount of mandatory fees to be paid by defendant. After reviewing the entire record including the
sealed transcripts we conclude that substantial evidence supports the verdicts
and that the trial court properly exercised its discretion in ruling on
defendant’s Pitchess motion. Finding respondent’s contentions regarding
fees to be well taken, we modify the judgment accordingly, and otherwise
affirm.
BACKGROUND
1. Procedural history
Defendant
was charged with five felony counts relating to the beating of Douglas Draper
(Draper) in his home on July 4, 2011. Count 1 charged defendant with the attempted
willful, deliberate, and premeditated murder of Draper in violation of Penal
Code sections 664 and 187, subdivision (a).
of section 206, and count 3 charged her with aggravated mayhem in violation of
section 205. Count 4 charged defendant
with attempted first degree residential robbery in violation of sections 664
and 211, and in count 5 with criminal
threats in violation of section 422.
The information specially alleged as to counts 1, 2, and 3 that in the
commission of those crimes defendant personally used a blunt object and shards,
deadly and dangerous weapons within the meaning of section 12022, subdivision
(b)(1); and that in the commission of counts 1 and 4, defendant personally
inflicted great bodily injury on Draper, within the meaning of section 12022.7,
subdivision (a).
A jury convicted defendant of all counts as charged and
found the special allegations true. On April 5, 2012, the trial court sentenced
defendant to life in prison plus four years comprised of three years for the
great bodily injury and one year for the use of a deadly weapon. The court imposed a concurrent life term with
a one-year enhancement for the use of a deadly weapon, and stayed that term
pursuant to section 654; and another life term for count 3, plus one year for
the deadly weapon, also stayed pursuant to section 654. The court imposed and stayed a 10-year term
for count 4, comprised of the high term of six years for attempted robbery,
plus three years for the great bodily injury and one year for the use of a
deadly weapon. As to count 4, the high
term of three years for criminal threats was also stayed pursuant to section
654. The court ordered defendant to pay
victim restitution and mandatory fines and fees, and to provide impressions and
DNA. Defendant’s presentence custody
credits were 308 days, consisting of 268 actual days and 40 days of conduct
credit.
Defendant
filed a timely notice of appeal from
the judgment.
2. Prosecution evidence
In July
2011 Draper was a retired, 61-year-old widower.
He testified he owned a three-bedroom home where he lived with two
roommates. In June 2011, a neighbor
asked Draper to allow defendant to stay with him for a few days. Draper had not met defendant and knew nothing
about her, but the middle bedroom next to his was not occupied, and he agreed
to allow defendant to stay with him as a favor to his friend. After two weeks defendant was still
there. She did not pay rent, but
occasionally gave Draper small amounts of methamphetamine to smoke.
Defendant
became a problem for Draper: she
repeatedly had late night or overnight guests; she painted a dresser that
belonged to Draper; things went missing, such as knick-knacks, boxes, and hand
tools; a sort of manifesto was written on the mirror; and Draper suspected that
defendant was selling drugs. More than
once during her stay, Draper told defendant that the late night visits needed
to stop, that he did not want the police to come, and that she should see her
friends elsewhere.
One of
defendant’s friends, whom he knew only as “Roach,†made Draper
uncomfortable. On the night of July 3, 2011, Roach came to visit
defendant sometime after 10:30 p.m.,
which Draper considered late. At 11:30
p.m., Draper had enough; he knocked on defendant’s door, told them to finish
their business and get on their way.
When there was no answer, Draper knocked on the door again and loudly
said, “Hey, you got to get goin’, Roach.â€
When
Roach failed to leave, Draper went to defendant’s door a third time, opened the
door and told defendant that Roach had to go or both of them had to go. Roach remained on the bed and defendant urged
him to stay. Draper then told her he was
going to call the police. Draper turned
to walk away when suddenly “blows started raining down†on his head. He saw a blurry object resembling a hammer
hit him repeatedly on the head and shoulders.
He turned and saw defendant was hitting him with a wooden dowel. Although Draper tried to block her blows with
his arm, she was too quick, and struck him in the head and shoulders about a
dozen times, causing him to bleed. Draper
backed down the hallway intending to escape out the front door but defendant
followed him, placed herself between Draper and the front door, and continued
to hit him with the dowel. When Draper
backed toward the kitchen, defendant followed, continually striking him, and
leaving a trail of blood spatter on the floors and the wall outside the
kitchen.
In the
kitchen, defendant found a fan motor on a work bench there, dropped the dowel,
and threw the motor directly at Draper’s face.
Draper managed to elude the motor enough to avoid it hitting him in the
face, but it still clipped the side of his head and caused him to lose his
balance. He landed on the work bench,
overturned it and fell to the floor. By
the time Draper got up, defendant had picked up a drop light and struck him
with it on his head and shoulders.
Defendant then said, “If you go to your room, I’ll quit hitting
you.†Draper complied, and as he passed
the front door on his to way his room, defendant placed herself between him and
the door.
Draper
reached his room and lay on the bed, feeling too weak to close or lock the door
and fearful that doing so might further aggravate defendant. After a short while, defendant entered and
said that Draper owed her money and demanded his debit card and pin number. When Draper told her he did not know where it
was, defendant became more angry and broke a plate over his head. Using a shard from the broken plate,
defendant stabbed Draper in the left shoulder, asked questions, and stabbed him
again when she did not like the answers.
Draper remembered only the stabs in the shoulder, although he thought
she may have stabbed him in one other place.
After asking for the key to the back door deadbolt defendant said, “I’m
coming back to kill you in 30 minutes,†left the room, closing the door behind
her, which caused it to lock automatically.
Draper was afraid and had no doubt that defendant would carry out her
threat, but was uncertain what action to take so remained there for
awhile. Draper heard defendant say,
“Roach, go outside and check the windows.
Make sure he can’t get out.†Draper
then saw someone was outside running hands up and down through the venetian
blinds. Draper could not see who it was.
Draper
found his cell phone and called 911 at 1:27 a.m. on July 4, nearly two hours
after the beating had begun. A recording
of the 911 call was played for the jury.
Among other things, Draper told the 911 operator: “She’s beating me to death. Her name is Veronicaâ€; “She’s in another
roomâ€; and “She’s just here in the house, she’s beating me to death. I’m bloody from head to foot. She smashed me over the head over a dozen
times. Hurry. I can’t live much longer. Hurry.â€
Draper
heard the sound of several keys being tried in his bedroom door lock from the
outside, and tossed the phone over his shoulder to hide it. When defendant entered she appeared to know
what he had been doing, called him a “snitch†and told him that she was going
to cut both sides of his mouth open and cut out his tongue. Holding a coil of rope, she threatened to tie
him up with it, but she hit him with it instead. Defendant then left the room after saying,
“I’m coming back to finish up what I started.â€
It then
became quiet for a few minutes until Draper heard knocking at the front
door. He was afraid to get up to answer,
but when the knocking turned to pounding, he crawled to the door, opened it,
saw the paramedics and Sheriff’s deputies, and collapsed onto the porch. Draper was taken to the hospital emergency
room, where his cuts were stitched and 30 staples were used to close his scalp
wounds. A week to 10 days after the
beating, Draper lost vision in both eyes for a few seconds, and although the
sight in his right eye soon came back, he never regained vision in his left
eye. At the time of trial he had not
sought medical attention for the blindness because he had no money. Draper was left with scars on his shoulder
and head.
Los Angeles Deputy Sheriffs Carr and Zeko arrived at
Draper’s house at 1:30 a.m., within minutes after the 911 call. Deputy Carr testified that because they had
not been told the emergency was life-threatening, they knocked on the door and
then waited outside for a few minutes after hearing a woman’s voice saying,
“Hold on. I’m in the bathroom.†After they knocked again several times Draper
opened the door and collapsed on the front porch, covered in blood. The deputies found a lawn chair against the
wall outside defendant’s bedroom window, which was open with the screen
removed. No suspect was found after a
search of the neighborhood.
Detective
Randy Megrdle spoke to Draper in the hospital.
He testified that Draper appeared to be tired, dazed, and in extreme
pain. Draper later identified
defendant’s photograph without any doubt or hesitation.
Detective
Megrdle arrested defendant July 14, 2011.
After defendant waived her Miranda
rights,
caretaker, providing cleaning and cooking, but moved out on July 1 because
Draper allowed a drug dealer to live there.
She claimed she then went to stay with her sister Monica Arriaga
(Arriaga), who would confirm this, and had not been back to Draper’s house.
After
interviewing defendant, Detective Megrdle and his partner Detective Ellis
immediately went to the restaurant where Arriaga worked. Arriaga said that defendant did not arrive
July 1, but came to stay with Arriaga on July 4. Detective Megrdle also spoke with Valdez who
told him she was certain that defendant came to her workplace on Monday, the
Fourth of July holiday. Detective
Megrdle testified that neither Arriaga nor Valdez showed any confusion about
when defendant arrived.
Defendant
waived her right to testify and presented no evidence.
DISCUSSION
I. Substantial evidence
Defendant
contends that her conviction of attempted murder and aggravated mayhem, are not
supported by substantial evidence. We
review both contentions under the same standard. When a criminal conviction is challenged as lacking
evidentiary support, “the court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence -- that is, evidence which is reasonable, credible, and of solid value
-- such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.†(
578; see also Jackson v. Virginia
(1979) 443 U.S. 307, 318-319.) We must
presume in support of the judgment the existence of every fact the jury could
reasonably deduce from the evidence. (
1053.) “The same standard applies when
the conviction rests primarily on circumstantial evidence. [Citation.]â€
(Ibid.) We do not reweigh the evidence or resolve
conflicts in the evidence. (
1181.) Reversal on a substantial
evidence ground “is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]†(People
v. Bolin (1998) 18 Cal.4th 297, 331.)
II. Intent to kill
Defendant contends that her murder conviction must be
reversed because no substantial evidence supported a finding that she intended
to kill Draper when she attacked him.
“Attempted
murder requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing. [Citations.]â€
(People v. Lee (2003) 31
Cal.4th 613, 623.) “[I]t is well settled
that intent to kill or express malice, the mental state required to convict a
defendant of attempted murder, may . . . be inferred from the defendant’s acts
and the circumstances of the crime.
[Citation.]†(
741.)
A threat
to kill the victim is one circumstance that may be considered with other
evidence to show that the defendant harbored an intent to kill. (People
v. Rodriguez (1986) 42 Cal.3d 730, 757; People
v. Lee (1987) 43 Cal.3d 666, 679.)
Prior disagreements are also relevant.
(See People v. Cartier (1960)
54 Cal.2d 300, 311.) Multiple blows to
the head and body with a deadly weapon support an inference of an intent to
kill the victim. (People v. Cain (1995) 10 Cal.4th 1, 39.) Such an inference may be further supported by
evidence of trapping the unarmed victim to facilitate the attacks. (See People v. Avila
(2009) 46 Cal.4th 680, 701-702.) Pursuing a victim to attack him with a deadly
weapon while he attempts to flee is also indicative of an intent to kill. (See People v. Richmond
(1991) 2 Cal.App.4th 610, 618 [hatchet].)
Substantial
evidence of all such circumstances was presented here, despite defendant’s
claim that “at no time, did she take any step toward killing Draper, even
though she had ample opportunity.†Such
steps began with a sudden attack from behind with multiple blows to the head by
means of a deadly weapon; defendant then pursued Draper as he attempted to flee
and blocked his escape through the front door as she repeatedly struck him with
the dowel; she picked up the fan motor when she dropped the dowel, threw it
directly at Draper’s face, grazed his head with it, and caused him to fall; as
soon as he stood, she struck him with a third weapon, the drop light; and then,
when Draper was too weak and frightened even to close the door, she hit him on
the head with a ceramic plate, stabbed him repeatedly with a shard, and struck
him with a coil of rope as he lay on the bed.
The crux
of defendant’s argument appears in her conclusion that her “acts and statements
were consistent with an intent to inflict pain and injury, rather than an
intent to take a person’s life.†In
support of her conclusion, defendant points to evidence suggesting that the
attack was a mere lashing out in anger without a motive to kill Draper; and she
argues that the fact that she did not kill him although she had the time and
opportunity to do so demonstrated a lack of intent to kill. Defendant argues that “if [she] had intended
to kill Draper, she would have chosen a method that would have accomplished
this objective†or she would have targeted a vital organ.
We
reject defendant’s implication that the facts were inconsistent with a finding
of intent to kill. The fact that the
defendant was unsuccessful in killing Draper and fled before she could “finish
the job†does not necessarily mean that she lacked the intent to kill him. (See People
v. Lashley (1991) 1 Cal.App.4th 938, 945 [neither abandonment after one
shot nor poor marksmanship necessarily establishes a less culpable state of
mind].) Further, when defendant was
unsuccessful with one weapon, she tried choosing another. Searching for a more effective weapon is
indicative of a an intent to kill. (See
1129 [search for second knife after first knife broke].) Moreover, defendant stabbed Draper more than
once in his left shoulder, suggesting that she may have been aiming for his
heart and tried again when she missed.
(Cf. People v. Gonzalez (2005) 126 Cal.App.4th
1539, 1552 [multiple stabbing on left side].)
Moreover,
the existence of conflicting inferences would not compel reversal. “‘Although it is the duty of the jury to acquit a defendant if
it finds that circumstantial evidence is susceptible of two interpretations,
one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court which must be convinced of the defendant’s guilt
beyond a reasonable doubt. If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.
[Citations.]’ [Citation.]†(People v. Thomas (1992) 2 Cal.4th 489, 514.)
We
conclude that ample substantial evidence supported the jury’s finding that
defendant harbored an intent to kill when she attacked Draper or that she
formed the intent sometime before the attack ended.
Specific intent
Defendant contends that her conviction of aggravated
mayhem must be reversed due to a lack of substantial evidence to support a
finding that she intended to maim or disfigure Draper.
“A
person is guilty of aggravated mayhem when he or she unlawfully, under
circumstances manifesting extreme indifference to the physical or psychological
well-being of another person, intentionally causes permanent disability or
disfigurement of another human being or deprives a human being of a limb,
organ, or member of his or her body.†(§
205.)
which requires proof the defendant specifically intended to cause the maiming
injury, i.e., the permanent disability or disfigurement. [Citation.]â€
(People v. Quintero (2006) 135
Cal.App.4th 1152, 1162 (Quintero).) “Evidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct evidence
to support a conviction.
[Citations.]†(
1208.)
Evidence
of specific intent may be sufficient where the “circumstances show defendant’s
attack was the product of deliberation and planning.†(People
v. Park (2003) 112 Cal.App.4th 61, 70 .)
“However, where the evidence shows no more than an ‘indiscriminate’ or
‘random’ attack, or an ‘explosion of violence’ upon the victim, it is
insufficient to prove a specific intent to maim. [Citation.]â€
(Quintero,
quoting People v. Lee (1990) 220
Cal.App.3d 320, 326 (Lee).)
“[S]pecific intent to maim may not be inferred solely from evidence that the
injury inflicted actually constitutes mayhem; instead, there must be other
facts and circumstances which support an inference of intent to maim rather
than to attack indiscriminately.
[Citation.]†(
828, 835 (Ferrell).) Such circumstances may be those “attending
the act, the manner in which it is done, and the means used, among other
factors. [Citation.]†(Id.
at p. 834.) “Thus evidence of a
‘controlled and directed’ attack or an attack of ‘focused or limited scope’ may
provide substantial evidence of such specific intent. [Citation.]â€
(Quintero, supra, at p. 1162,
quoting Lee, supra, at pp.
325-326.)
Defendant
contends that the circumstances of this case are analogous to cases in which
the evidence showed no more than a sudden indiscriminate, random, or unfocused
attack, such as People v. Sears
(1965) 62 Cal.2d 737, 740-741 (Sears),
where the victim got in the way while the defendant was attacking her mother
with a pipe; and People v. Anderson
(1965) 63 Cal.2d 351, 356 (Anderson),
where the defendant became enraged and stabbed the victim over 60 times over her
entire body; and Lee,
the defendant suddenly punched his neighbor three times without any conceivable
reason, leaving him partially paralyzed.
The cited cases are not analogous.
In contrast to Sears, Draper
was not the unintended victim of blows aimed at another; and in contrast to
on Draper’s head and face, and later his head and shoulder. Finally, although defendant apparently
exploded in violence like the defendant in Lee,
her attack was not random or without any apparent reason.
Pointing
out various cuts and marks on other areas of Draper’s body, defendant contends
that there was no evidence that the attack was focused on Draper’s eyes or
facial area. We disagree. Scratches on Draper’s feet appear to be minor
and the cuts on his hands were most likely caused when he attempted to block
the blows to his head; however, photographs taken after the attack show three
wounds requiring staples over Draper’s right eyebrow and one wound requiring
staples just above Draper’s left temple.
Further, defendant threw the fan motor directly at Draper’s face and she
broke a ceramic plate over Draper’s head.
The blows with the dowel were focused almost entirely on his head and
were close enough to his face to indicate an attempt to disfigure or
permanently disable him. Stabbing
Draper’s left shoulder with a shard from the plate may have been a
transform the earlier blows from the dowel and plate into a random,
generalized, or unfocused assault.
Defendant
next contends that the evidence does not support a finding that she intended to
cause Draper’s blindness because she did not make a statement to that effect
and there was no medical expert testimony to prove which blow caused the
blindness. The contention lacks
merit. Although a statement of intent
would have provided direct evidence of defendant’s state of mind (
636, fn. 17), such direct evidence is rare and intent must usually be shown by
the circumstances surrounding the crime.
(People v. Lindberg (2008) 45
Cal.4th 1, 27; People v. Bloom, supra,
48 Cal.3d at p. 1208 [“Evidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as sufficient as
direct evidence to support a convictionâ€].)
In addition, Draper testified that he lost his vision a week to ten days
after the attack and that the vision loss was caused by the beating. Seven months after the attack, he still had
no sight in his left eye. In the absence
of evidence to the contrary, such testimony by the victim is sufficient proof
without medical testimony that permanent blindness resulted from an injury
inflicted by the defendant. (
Cal.App.2d 550, 551-552.)
We
conclude from such evidence that the jury could reasonably infer that defendant
intended to disable Draper’s vision by focusing the dowel strikes on his head,
aiming a fan motor directly at his face, and causing severe cuts close to both
eyes.
“To
prove mayhem based on a disfiguring injury, the injury must be permanent.
[Citations.]†(People v. Hill (1994) 23 Cal.App.4th 1566, 1571.) While not every visible scar is disfiguring,
a jury could reasonably find that a permanent scar on the face, head, or other
part of the body constitutes a disfigurement even if it is only a few inches
long. (People v. Newble (1981) 120 Cal.App.3d 444, 447, 452-453
[three-inch facial laceration extending from the bottom of ear to just below
chin].) Whether a scar is a permanent
disfigurement is a question for the trier of fact. (People
v. Park , supra, 112 Cal.App.4th
at p. 72.)
Arguing
that the scars might fade over time, defendant contends that the evidence was insufficient
to demonstrate that Draper’s scars amounted to a “permanent disfiguring injuryâ€
as defined in section 205 and People v. Newby (2008) 167
Cal.App.4th 1341, 1347 (Newby). The phrase “permanent disfiguring injury†is
not defined in the statute as defendant claims.
In Newby, the appellate court
construed “permanent†as used in section 205, concluding that it did “not
necessarily mean irreparable†and that a “‘disfiguring injury may be permanent
even if it can be repaired by medical procedures.’ . . .
[Citation.]†(Newby, supra, at pp.
1347-1348.) Newby does not address the adequacy of the record or the
possibility that a scar might fade over time.
Defendant contends that the “lack of information as to
the size and nature of these scars makes it doubtful that they were
permanent.†She suggests that we must
infer from this “lack of information†that all Draper’s scars were minor or
barely visible and thus conclude that there was insufficient proof of an intent
to cause permanent injury. To support
her contention, defendant points to the prosecutor’s comments that the scars on
Draper’s head were barely visible and to the absence in the record of
descriptions of the other scars.
Contrary to defendant’s suggestion, a reviewing court does not presume error from a silent
record: “‘A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a
general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’
[Citations.]†(
557, 564.)
Here the jury was given the opportunity to view the scars
on Draper’s head and arm when he approached the jury box and walked alongside
it for that purpose. The trial court
instructed the jurors to raise their hands if unable to see the scars, and as
there is no indication in the record that any of them raised a hand, we presume
that each juror was able to view the scars sufficiently to make a finding. Indeed, defense counsel did not object, add
any description of his own, or ask that the record reflect an absence of
visible scars; and he made no mention of scars or the absence of scars in
closing argument, even after the prosecutor had already argued: “[Defendant] disfigures him by putting all
those scars on him. He will live with
those scars forever. The few on his head
are a little hard to see but you can see -- clearly see the ones on his arm
that he will have for the rest of his life.â€
As the
jurors, the prosecutor, and even defense counsel were satisfied with their
observation of the scars, we reject defendant’s claim that there was a “lack of
informationâ€; and we decline to reject the inferences drawn by the jurors from
their own observations.
IV. Pitchess motion
The trial court granted
defendant’s Pitchess motion for
discovery of relevant evidence contained in the personnel files and other
confidential records pertaining to Detective Megrdle. (Pen. Code, §§ 832.7, 832.8; Evid. Code,
§§ 1043-1045; see Pitchess, supra,
11 Cal.3d 531.) In granting the motion,
the trial court limited its review to records relevant to any alleged
dishonesty. After an in camera review,
the trial court ordered the discovery of two documents and issued a protective
order to maintain the confidentiality of the records. The trial court subsequently granted a
supplemental Pitchess motion, and
after an in camera hearing, ordered the discovery of a handwritten witness
statement.
Defendant requests a review
of the trial court’s determination that there were no additional discoverable
items in the records produced.
We review the trial court’s
determination for an abuse of discretion.
(People v. Jackson (1996) 13
Cal.4th 1164, 1220-1221.) The records
produced in the trial court were not retained, but the sealed transcripts of
the in camera hearings demonstrate that either the custodian of the records or
the trial court described them and the court examined each one. We thus find the transcript sufficiently
detailed to review the trial court’s discretion. (See
People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) Upon review of the sealed record of the in
camera proceedings we conclude the trial court properly exercised its
discretion in determining that the documents produced complied with the scope
of the Pitchess motion, and that no
additional documents or information should be disclosed to the defense.
V. Correction of assessments and fees
Respondent
asks that we correct the judgment to reflect the appropriate imposition of a
$30 court facilities assessment as to each count (Gov. Code, § 70373, subd.
(a)(1)) and a $40 court security fee as to each count (§ 1465.8, subd. (a)(1)). Defendant has not opposed the request and we
find it appropriate.
The
trial court ordered defendant to pay $70 in fees without specifying the fee or
breaking the total into individual fees.
The abstract of judgment states that the court ordered payment of a
court security fee in the amount of $80 and a criminal conviction assessment in
the amount of $60. The trial court should have
imposed a $40 court security fee and a $30 court facilities assessment
as to each of the five counts of which defendant was convicted, even the counts
stayed under section 654. (People v.
Sencion (2012) 211 Cal.App.4th 480, 483-485.) In addition, the court should have provided a detailed
recitation of each fee and set forth the correct amount in the abstract of
judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) As these are mandatory provisions, we may
correct the order on appeal in the first instance. (People
v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154.)
DISPOSITION
The judgment is modified to reflect
the imposition of a court security fee in the amount of $40 as to each of the
five counts, for a total of $200, and a criminal conviction assessment in the
amount of $30 as to each count, for a total of $150. The trial court is directed to prepare an
amended abstract of judgment in accordance with this disposition and deliver it
to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
__________________________,
J.
CHAVEZ
We concur:
___________________________, P. J.
BOREN
___________________________, J.
ASHMANN-GERST
Pitchess v. Superior Court (1974) 11
Cal.3d 531 (Pitchess); Penal Code
sections 832.7 and 832.8; Evidence Code section 1043 through 1045.
further statutory references are to the Penal Code, unless otherwise indicated.
