P. v.
Filed 9/19/12 P. v.
Martinez 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTURO BARAJAS MARTINEZ,
Defendant and Appellant.
C067985
(Super.
Ct. No. 105497, CRF075478)
Defendant pled no
contest in 2007 (case No. CRF075478) to
probation. In 2011, defendant pled no
contest in case No. CFR105497 to possessing methamphetamine, and admitted
serving prior prison terms. Defendant’s
probation having been revoked in case No. CRF075478, the trial court
sentenced defendant to prison on both matters in the same proceeding and
imposed various fines and fees.
On appeal,
defendant contends he is entitled to additional
erred in imposing some of the fines and fees.
He also asks that the abstract of judgment be amended to state with
particularity the amount and statutory bases of all fines and fees, and amended
to indicate that fines, fees, and assessments associated with case
No. CRF075478 are imposed as previously ordered on December 6, 2007, to ensure they are not
collected more than once.
The People concede
that defendant is entitled to all the relief he seeks. We agree.
At sentencing,
defendant was awarded 720 days’ credit in case No. CFR105497, based on the
probation officer’s calculation that defendant had spent 360 days in actual
custody. The parties agree that the
mathematical calculation was incorrect:
defendant should have been credited with 361 days’ actual custody, for a
total of 722 days’ credit. We order the
judgment amended to award defendant two additional days’ custody credit.
Assessment
The parties are
correct that the $40 court security fee imposed in connection with case
No. CRF075478 should be reduced to $20.
The version of Penal Code
name="_ftnref1" title="">[1]
section 1465.8, subdivision (a)(1), in effect in 2007 provided for a $20
court security fee per conviction. The
Legislature intended the statute to apply as of the date of conviction (
749, 754), and defendant was convicted in 2007 when he entered his no contest
plea. (People v. Davis
(2010) 185 Cal.App.4th 998, 1001.)
Although the Legislature later amended section 1465.8,
subdivision (a)(1), to increase the court security fee to $30 (Stats.
2009, 4th Ex. Sess. 2009-2010, ch. 22, § 29) and then to $40 (Stats.
2010, ch. 720, § 33), those amendments were not in effect at the time
of defendant’s conviction. The total
court security fee for case Nos. CRF075478 and CFR105497, reflected on the
abstract of judgment, must be reduced from $80 to $60.
The parties are
also correct that the court facilities assessment should not have been imposed
in case No. CRF075478, because Government Code section 70373
(Stats. 2008, ch. 388, § 65) was not yet in effect at the time
of defendant’s conviction in this case.
(People v. Tarris (2009)
180 Cal.App.4th 612, 628; see also People
v. Davis, supra, 185 Cal.App.4th at p. 1001; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.)
The abstract of
judgment states that defendant shall pay $760 on each case in unspecified
“fines.†Defendant contends, and the
People concede, the matters must be remanded to the trial court to enable it to
specify the amount and statutory bases for the imposition of all fines and
fees. We accept the People’s concession.
In
119 Cal.App.4th 1192, this court stated:
“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. All fines and fees must be
set forth in the abstract of judgment. [Citations.] The abstract of judgment form used here,
Judicial Council form CR-290 (rev. Jan. 1, 2003) provides a number of lines for
‘other’ financial obligations in addition to those delineated with statutory
references on the preprinted form. If
the abstract does not specify the amount of each fine, the Department of
Corrections [and Rehabilitation] cannot fulfill its statutory duty to collect
and forward deductions from prisoner wages to the appropriate agency. [Citation.]
At a minimum, the inclusion of all fines and fees in the abstract may
assist state and local agencies in their collection efforts. [Citation.]
Thus, even where the Department of Corrections [and Rehabilitation] has
no statutory obligation to collect a particular fee, such as the laboratory fee
imposed under Health and Safety Code section 11372.5, the fee must be included
in the abstract of judgment.
[Citation.]†(
provide a detailed recitation of the fines and fees imposed and the legal bases
for their imposition. Instead, the court
said, “[t]he full breakdown of the penalty assessment will be appended to the
abstract of judgment.†No such detail
was provided in, or appended to, the abstract of judgment.
Finally, when in
2007 the court granted defendant probation in case No. CRF075478, it
imposed various fines and fees, including a $200 restitution fine pursuant to
section 1202.4, a $50 lab fee, and a $150 drug program fee, plus
assessments. Four years later, when sentencing
defendant to prison in case No. CRF075478, the trial court also imposed a
$50 lab fee and a $200 restitution fine pursuant to section 1202.4 in “each
felony case to be collected by the Department of Corrections and
Rehabilitation,†and then said, “[t]he previously ordered restitution fine in 07-5478
remains in full force and effect and now will be collected by the
Rehabilitation].†Citing
65 Cal.App.4th 819, defendant contends the trial court may have improperly
imposed at sentencing “second†restitution and lab fees when defendant’s
probation was revoked. (
it was complying with Chambers when
it orally stated that the “previously ordered restitution fine in 07-5478
remains in full force†(see id. at
p. 822 [“a restitution fine survive[s] the revocation of probationâ€]), the
court also imposed a $200 restitution fine in “each felony case,†which
arguably represents a separate, duplicative, fine.
To resolve this
issue, the parties agree the abstract of judgment should reflect that the
restitution fine, lab fee, drug program fee, and penalty assessments imposed in
case No. CRF075478 are as previously imposed on December 6, 2007. We agree.
(See e.g., People v. Cropsey
(2010) 184 Cal.App.4th 961, 965-966 [“[w]here a restitution fine(s) has
been previously imposed, the trial court should simply say, ‘The abstract of
judgment should reflect the restitution fine(s) previously imposed’â€].)
DISPOSITION
The judgment is
modified in case No. CRF075478 to reduce the court security fee imposed
from $40 to $20 and to strike the $30 court facilities assessment. In case No. CFR105497, the judgment is
modified to award defendant 722 total days’ custody credit. In all other respects, the judgment is
affirmed.
The trial court
shall prepare an amended abstract of judgment reflecting the changes in
judgment; it shall also identify the amount and legal basis for each fine, fee,
and penalty imposed, and indicate (as applicable) that the fines, fees, and
assessments imposed in case No. CRF075478 are as previously ordered on
December 6, 2007. Thereafter, the
court shall forward a certified copy of the amended abstract of judgment to the
California Department of Corrections and
Rehabilitation.
HOCH , J.
We concur:
RAYE , P. J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated section references are to the
Penal Code.
