P. .v Capps
Filed 2/26/10 P. .v Capps CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CAPPS, Defendant and Appellant. | C062626 (Super. Ct. No. 07F09812) |
In September 2007, defendant Anthony Cappss girlfriend went out with a friend, who left her five-year-old daughter in defendants care. When the two women returned home, the childs mother saw defendant in a bedroom with the child. Defendant appeared to be nervous, and it also looked as though he were putting his penis back in his pants. Defendant closed the bedroom door, but the mother opened it and saw her daughter wearing only her panties, in the process of putting her clothes back on.
The mother later asked the minor if defendant had done anything to her, and the child said defendant put his pee pee in my pee pee and in my butt. Following that discussion, the mother, together with law enforcement, made a pretext phone call to defendant. During that call, defendant initially denied touching the child but eventually acknowledged that he did. He described in graphic detail the numerous acts of abuse he perpetrated on the child and told the mother that he had been thinking of her while he did them.
Defendant was later arrested and interviewed by the police. During the interview, defendant admitted touching the child with his fingers, his mouth, and his penis more than 100 times in a six-month period. He said he did not know what he was doing was wrong while he was doing it, but later came to understand his actions were wrong.
Defendant was subsequently charged with 17 counts of committing a lewd and lascivious act on a child under the age of 14. (Pen. Code, 288, subd. (a).) Defendant pled no contest to all 17 counts and agreed to a stipulated, aggregate term of 40 years in state prison. Defendant was sentenced in accordance with his plea and given 693 days of presentence credit. Defendant was ordered to pay restitution to the victim, a restitution fine of $200, and a second restitution fine of $200 was stayed pending completion of parole.
Defendant appeals. His request for a certificate of probable cause was denied. (Pen. Code, 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Our review of the record reveals errors in the courts imposition of fines and fees. At sentencing, the trial court ordered that [a]ny mandatory fines and fees are imposed. Any discretionary fines and fees are stricken. When asked to clarify what the mandatory fines were, the court said, [t]he ones that say mandatory in the probation report are mandatory. Anything else is discretionary.
Unfortunately, the probation report failed to identify the court security fee (Pen. Code, 1465.8) as mandatory. As a result, the mandatory court security fee was wrongly omitted from the judgment. (Cf. People v. Wallace (2004) 120 Cal.App.4th 867, 877.) Because the fee is mandatory, it is subject to imposition on appeal even if the prosecutor failed to object in the trial court. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.) We shall modify the judgment accordingly.
The probation report did correctly identify Government Code section 70373, the court facility fee, as mandatory. Thus, the fee was imposed; however, following the trial courts lead, the clerk failed to break down the fine in the abstract of judgment. The abstract of judgment refers the reader to pages 17-19 of the probation report. This too was error. (People v. High (2004) 119 Cal.App.4th 1192, 1200 [Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts].) Accordingly, we shall direct the trial court to correct the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order correction of abstract of judgment that does not accurately reflect the oral judgment of the sentencing court].)
Having undertaken an examination of the entire record, we find no arguable error in favor of defendant.
DISPOSITION
The judgment is modified to order defendant to pay the court security fee of $20 per conviction, totaling $340. (Pen. Code, 1465.8.) As modified, the judgment is affirmed.
The trial court is directed to correct section 11 of the abstract of judgment by deleting the reference to the probation report and breaking down the court facility fee. The court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
CANTIL-SAKAUYE , J.
We concur:
SIMS , Acting P. J.
RAYE , J.
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