P. v. Aguilar

Filed 2/11/10 P. v. Aguilar CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Daniel Caudillo Aguilar pleaded no contest to driving under the influence of alcohol and driving with a suspended license, and he admitted having suffered three prior convictions for driving under the influence. The court suspended imposition of sentence and granted probation under certain specified conditions.

On appeal, defendant asserts that the penalty assessments imposed exceeded the amount permitted by law. Specifically, he argues that the aggregate assessments should have been $1,380, rather than the $1,590 amount imposed. We conclude that the total amount of penalty assessments should have been $1,500 and that the judgment should have reflected the statutory grounds for each assessment imposed. Accordingly, we will modify the order granting probation to reflect the total amount of the assessments to be $1,500, identify the bases for each of the assessments, and affirm the order as modified.

PROCEDURAL BACKGROUND

Defendant was charged by complaint filed October 29, 2008, with three offenses. He was charged in count 1 with driving under the influence of alcohol with three or more prior convictions for driving under the influence of alcohol (Veh. Code,  23152, subd. (a)/ 23550, subd. (a)), a felony; in count 2 with driving under the influence with a blood alcohol level of at least 0.08 percent with three or more prior convictions (Veh. Code,  23152, subd. (b)/ 23550, subd. (a)), a felony; and in count 3 with driving with a suspended or revoked license (Veh. Code, 14601.1, subd. (a)), a misdemeanor. Each offense was alleged to have occurred on or about October 25, 2008.[1] The information alleged further that defendant had suffered two prior convictions of driving under the influence (Veh. Code,  23152), and one prior conviction of reckless driving (Veh. Code,  23103, 23103.5).

On May 5, 2009, defendant pleaded no contest (nolo contendere) to counts 1 and 3 as charged, and admitted the prior conviction allegations. The plea was with the understanding that he would receive one year in county jail and would be required to participate in an alcohol treatment program. There was a stipulation that there was a factual basis for the plea. Defendant also waived referral of the matter to the probation department.

On June 26, 2009, the court suspended the imposition of sentence, and granted probation on the condition that defendant serve one year in county jail. The court ordered defendant to pay a general fund fine of $600, plus penalty assessment and statutory fees and fines. The court did not specify the amounts of the penalty assessments or the manner in which they were calculated. The clerks minutes, however, reflect penalty assessments of $1,590. Defendant filed a timely notice of appeal based upon the sentence or other matters occurring after the plea.

DISCUSSION

I. Whether Penalty Assessments Were Excessive

A. Forfeiture

Before considering defendants claim that the penalty assessments were excessive, we address the Attorney Generals contention that the claim is forfeited because defendant did not object below.

Although as a general rule, a criminal defendant who fails to challenge a trial courts ruling forfeits the right to raise the claim on appeal (People v. Simon (2001) 25 Cal.4th 1082, 1097), and that rule generally applies in the area of sentencing, such as discretionary sentencing choices (People v. Scott (1994) 9 Cal.4th 331, 351-354), the rule is subject to certain exceptions. (In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 2 (Sheena K.).) Thus, exceptions to the forfeiture rule apply in instances of unauthorized sentences or sentences entered in excess of jurisdiction. (People v. Welch (1993) 5 Cal.4th 228, 235.) The explanation for such exceptions is that the errors presented pure questions of law [citation], and were clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable. (People v. Smith (2001) 24 Cal.4th 849, 852.)

The high court has explained further that [a] sentence is said to be unauthorized if it cannot lawfully be imposed under any circumstance in the particular case [citation], and therefore is reviewable regardless of whether an objection or argument was raised in the trial and/or reviewing court. [Citations.] (Sheena K., supra, 40 Cal.4th at p. 887.) Thus, in the context of a challenge to probation conditions, the court concluded that, while the failure to object to unreasonable probation conditions forfeited such appellate challenges (People v. Welch, supra, 5 Cal.4th at pp. 234-238), a defendants claim that probation conditions were unconstitutionally vague and overly broad is not barred due to the failure to object at the trial court. (Sheena K., at p. 889; see also id. at p. 887.)

We conclude that the challenge to the penalty assessments here was not forfeited. Defendants contention is that the penalty assessments in the aggregate were excessive. He argues that there were no statutes under which an amount totaling $1,590 would have been proper. We view this contention to be in essence one in which the argument is that the court acted in excess of its jurisdiction in that the penalty assessments were in an amount greater than permitted by law. (People v. Welch, supra, 5 Cal.4th at p. 235.) And since the issue of the amount of penalty assessments that may be imposed by statute is one that presents a pure question[] of law (People v. Smith, supra, 24 Cal.4th at p. 852), we believe that the claim was not forfeited. (See, e.g., People v. Chambers (1998) 65 Cal.App.4th 819, 823 [holding challenge to imposition of second restitution fine following trial courts revocation of probation not forfeited because trial court acted in excess of its authority].)[2]

B. Calculation of the Penalty Assessments

It is worth noting at the outset that [a]dditional penalties, or assessments, are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses. This requirement is mandated by Penal Code section 1464 and Government Code section 76000. (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694, fn. omitted.) In order to facilitate review of the penalty assessments imposed in a case and to assist in collection efforts, it is important for the trial court to recite in the record the statutory bases for any penalty assessments it imposes and, where necessary, make the requisite factual findings. (See People v. High (2004) 119 Cal.App.4th 1192, 1200; People v. Taylor (2004) 118 Cal.App.4th 454, 456-460.)

Although the record does not reflect the manner in which the court arrived at the total amount of penalty assessments of $1,590, the parties agree in part as to some of the components properly included in the calculation.[3] They agree, for instance, that a state penalty assessment of $600 pursuant to Penal Code section 1464, subdivision (a))(1),[4] was proper. The parties agree further that a state surcharge assessment of $120 was appropriately levied under Penal Code section 1465.7, subdivision (a).[5] And the parties agree that assessments were properly levied in the amounts of $60, pursuant to Government Code section 76104.6, subdivision (a)(1);[6] $60, pursuant to Government Code section 76104.7, subdivision (a);[7] and $210, pursuant to Government Code section 70372, subdivision (a).[8] Thus, there is no dispute that the trial court properly imposed assessments totaling $1,050.

The parties have two essential disagreements concerning the amount of assessments imposed. First, although they agree that an assessment is properly imposed pursuant to Government Code section 76000, subdivision (a)(1), they disagree as to the amount of that assessment.[9] Defendant argues that although the statute provides that $7 for every $10 of fine shall be assessed, that amount is reduced here pursuant to subdivision (e) to $5.50.[10] Accordingly, he asserts that the proper amount that should have been assessed under Government Code section 76000, subdivision (a)(1), was $330. The Attorney General argues that the assessment, based upon a 70 percent figure under Government Code section 76000, subdivision (a)(1), is reduced to 55 percent only when the money in the state court facilities construction fund (established by Government Code section 76100) is transferred to the state. (Gov. Code, 76000, subd. (e).) Because it does not affirmatively appear that such transfer has occurred, the Attorney General contends that the assessment should be 70 percent of the $600 fine amount, or $420.

The record here does not show whether Santa Clara County established a local courthouse construction fund under Government Code section 76100.[11] Although the language of Government Code section 76000, subdivision (e), appears to make mandatory the reduction in the penalty assessment to 55 percent, its reference to section 76100which provides that the board of supervisors may establish in the county treasury a Courthouse Construction Fund (Gov. Code,  76100, subd. (a), italics added)makes the applicability of the 55 percent assessment less than clear. It is not necessarily true that a countysuch as Santa Clara County herehas established a courthouse construction fund.

Because the amount in controversy is de minimisthe difference between the figures argued by the parties under Government Code section 76000, subdivision (a)(1) is $90for purposes of this case only, we will assume that Santa Clara County does have a courthouse construction fund and that the 55 percent penalty assessment of Government Code section 76000, subdivision (e) applies. We therefore concur with defendants contention that the penalty assessment under Government Code section 76000, subdivision (a)(1), should have been $330.

The second dispute concerns the imposition of an assessment under Government Code section 76000.5, subdivision (a)(1).[12] The Attorney General in the respondents brief asserts that an assessment of $120 (or 20 percent of the amount of the fine) was properly imposed under that code section. Defendant did not address the propriety of an assessment under Government Code section 76000.5, subdivision (a)(1) in his opening brief, and he did not file a reply brief. Accordingly, since it is apparent that an assessment under this code section was proper, it will be included in the order modifying the probation order as indicated below.

Although review is facilitated by a recital of the statutory bases for the penalty assessments imposed (People v. High, supra, 119 Cal.App.4th at p. 1200), no such recitation occurred here. Remand, however, would only serve to unnecessarily increase the costs to the parties and the taxpayers for no good purpose. (See People v. Walker (1991) 54 Cal.3d 1013, 1029 [judicial economy warranted modifying judgment to reduce restitution fine to statutory minimum rather than remand to trial court to determine appropriate amount of fine]; People v. Taylor, supra, 118 Cal.App.4th at p. 456 [judgment modified to include omitted, mandatory laboratory analysis fee and penalty assessments in interests of judicial economy].) Therefore, we will order that the probation order be modified to reflect the correct total amount of assessments (i.e., $1,500), and to specify the statutory bases of the individual assessments.

DISPOSITION

The order of probation is modified to reflect that, in addition to defendant being required to pay a general fund fine of $600, he shall pay penalty assessments and statutory fees and fines in the total amount of $1,500. Those additional penalty assessments and statutory fees and fines consist of $600, pursuant to Penal Code section 1464, subdivision (a))(1); $120, pursuant to Penal Code section 1465.7, subdivision (a); $60, pursuant to Government Code section 76104.6, subdivision (a)(1); $60, pursuant to Government Code section 76104.7, subdivision (a); $210, pursuant to Government Code section 70372, subdivision (a); $330, pursuant to Government Code section 76000, subdivision (a)(1); and $120, pursuant to Government Code section 76000.5, subdivision (a)(1). As so modified, the order of probation is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

McAdams, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Since this appeal follows a no contest plea in which defendant waived the preparation of a probation report, the record contains no detail concerning the underlying facts.

[2] Even were we to agree with the Attorney General that defendant forfeited this challenge, we nonetheless, in the exercise of our discretion, may consider it. (Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.)

[3] Each of the assessments is derived from the general fund fine amount of $600, which is used as the base amount to calculate the statutory amount of the assessment.

[4] [T]here shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, . . . (Pen. Code,  1464, subd. (a)(1).)

[5] A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of [Penal Code s]ection 1464. (Pen. Code,  1465.7, subd. (a).)

[6] [F]or the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code . . . . (Gov. Code,  76104.6, subd. (a)(1).)

[7] [I]n addition to the penalty levied pursuant to [Government Code s]ection 76104.6, there shall be levied an additional state-only penalty of one dollar ($1) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code . . . . (Gov. Code, 76104.7, subd. (a).)

[8] Except as otherwise provided in subdivision (b) of [Government Code s]ection 70375 and in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including, but not limited to, all offenses involving a violation of . . . the Vehicle Code . . . . (Gov. Code, 70372, subd. (a)(1).) Defendant contends that the assessment provided in Government Code section 70372, subdivision (a)(1), must be reduced here by $1.50 for every 10 dollars, and that the assessment under that statute is properly calculated at $3.50 for every $10 of every fine, penalty or forfeiture; and the Attorney General does not dispute that position.

[9] Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code . . . . (Gov. Code, 76000, subd. (a)(1).)

[10] The seven-dollar ($7) additional penalty authorized by [Government Code section 76000,] subdivision (a) shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by [Government Code s]ection 76100 as of January 1, 1998, when the money in that fund is transferred to the state under [Government Code s]ection 70402. The amount each county shall charge as an additional penalty under this section shall be as follows: [] . . . [] Santa Clara $5.50. (Gov. Code, 76000, subd. (e).)

[11] [F]or the purpose of assisting any county in the acquisition, rehabilitation, construction, and financing of courtrooms, a courtroom building or buildings containing facilities necessary or incidental to the operation of the justice system, or court facilities, the board of supervisors may establish in the county treasury a Courthouse Construction Fund into which shall be deposited the amounts specified in the resolutions adopted by the board of supervisors in accordance with this chapter. The moneys of the Courthouse Construction Fund shall be payable only for the purposes set forth in this subdivision and in subdivision (b) and at the time necessary therefor, subject to the requirements set forth in Chapter 5.7 (commencing with [Government Code s]ection 70301). (Gov. Code,  76100, subd. (a).)

[12][F]or purposes of supporting emergency medical services pursuant to Chapter 2.5 (commencing with Section 1797.98a) of Division 2.5 of the Health and Safety Code, in addition to the penalties set forth in [Government Code s]ection 76000, the county board of supervisors may elect to levy an additional penalty in the amount of two dollars ($2) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including . . . all offenses involving a violation of the Vehicle Code . . . . This penalty shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code. (Gov. Code,  76000.5, subd. (a)(1).)