P. v. >Rogers>

















Filed 1/17/13 P.
v. Rogers 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

(Butte)

----




>

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY WAYNE ROGERS, JR., Defendant and Appellant.

C070480 (Super. Ct. Nos. CM033633, CM035035, CM035023)

Following
defendant Johnny Wayne Rogers, Jr.’s, convictions for href="http://www.fearnotlaw.com/">spousal abuse (Pen. Code, § 273.5;
undesignated statutory references that follow are to the Penal Code) and
receiving stolen property (§ 496), the trial court imposed a fine under
section 672. Defendant contends the
trial court erred in utilizing this statute as the basis for the fine and
therefore the fine must be stricken. We
agree the court erred, but find the issue forfeited by defendant’s failure to
object to the stated statutory basis of the fine in the trial court. Accordingly, we affirm the judgment.

Facts and Proceedings

Given
the issue raised on appeal, a detailed recitation of the factual and procedural
background underlying the case is not necessary.

In
August 2010, in case No. CM033633, defendant pleaded no contest to misdemeanor href="http://www.mcmillanlaw.com/">battery (§ 242) and was placed on
probation. Over a year later, defendant
entered into a global disposition of a number of cases. In case No. CM035023, he pleaded no contest
to spousal abuse (§ 273.5, subd. (a)) and admitted he had served two prior
prison terms (§ 667.5, subd.
(b)). In case No. CM035035, defendant
pleaded no contest to receiving stolen property (§ 496) and admitted
having served two prior prison terms. In
exchange there was an agreed-upon lid on the sentence of six years eight
months. Based on these pleas, the court
also found defendant had violated the terms of probation in case No.
CM033633.

Defendant
was sentenced to a term of four years for spousal abuse, a consecutive term of
eight months for receiving stolen property, and one year each for the two prior
prison term enhancements. He was awarded
342 days of presentence custody credits.
The court imposed a restitution fund fine of $200. The court also imposed a fine “under 672 of
the Penal Code of $200, plus penalties, assessments, and surcharges for a total
$720. That will be on one count. The other count, another fine, totaling $720
and broken down. Its items 3 and 4 of
the state prison recommendation page in the probation report.” Items 3 and 4 on the state prison
recommendation page of the probation report provide the statutory basis for the
fines, fees, and assessments. It
indicates that both $200 fines were imposed under the authority of section 672. Defendant was also ordered to pay victim
restitution.

Discussion

Defendant
contends the trial court improperly imposed a section 672 fine as to his
spousal abuse conviction. Defendant is
correct.

Traditionally,
base fines are those imposed by the penal statute, in addition to a jail or
prison sentence. (People v. Sorenson (2005) 125 Cal.App.4th 612, 617.) Where the criminal statute does not
explicitly prescribe the imposition of a penal or base fine, section 672
permits the court at sentencing to “impose a fine on the offender not exceeding
one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars
($10,000) in cases of felonies, in addition to the imprisonment
prescribed.” This statute applies to all
crimes, whether defined in the Penal Code or elsewhere (People v. Shah (1949) 91 Cal.App.2d 716, 721).

Defendant
was convicted of spousal abuse and receiving stolen property. No base fine is prescribed for receiving
stolen property (see § 496); therefore, it is appropriate to utilize
section 672 as to this offense. However,
a base fine of up to $6,000 is prescribed for spousal abuse. (§ 273.5, subd. (a).) Accordingly, section 672 cannot be the
statutory basis for a base fine on a conviction of spousal abuse. Contrary to the People’s claim, the record
clearly reflects that the court utilized section 672 as the statutory basis for
the base fines on both offenses. This
was improper.

However,
defendant’s conclusion that the fine must therefore be stricken is
incorrect. Defendant forfeited the error
by failing to object in the trial court.
Defendant claims the issue is not forfeited because the sentence was
unauthorized. Generally, a sentence is
unauthorized “where it could not lawfully be imposed under any circumstance in
the particular case. Appellate courts
are willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at
sentencing. [Citation.]
. . . [¶] In essence, claims deemed waived on appeal
involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.”
(People v. Scott (1994) 9
Cal.4th 331, 354.)

Defendant
relies on People v. Breazell (2002)
104 Cal.App.4th 298 (Breazell), to
support his claim that the fine imposed under section 672 resulted in an
unauthorized sentence. >Breazell is inapposite. Breazell was convicted of possessing cocaine
base for sale. The court imposed two
separate fines on that conviction, one under section 672 and another under Health
and Safety Code section 11372, which authorized fines of up to $20,000 for
persons convicted of Breazell’s offense.
The appellate court concluded that since Health and Safety Code section
11372 provided for a base fine, the fine imposed under Penal Code section 672
for the same offense was unauthorized, because section 672 included a limiting
provision which “was meant to ensure that a fine pursuant to section 672 would
not be imposed if another statute authorized a fine for the offense.” (Breazell,
supra, 104 Cal.App.4th at p. 304.)

Here,
in contrast to Breazell, the trial
court imposed only one base fine for spousal abuse. Although it improperly identified section 672
as the statutory basis for the fine, the fine could have been imposed pursuant
to section 273.5, subdivision (a). Thus,
the court’s reliance on the wrong statute did not result in the imposition of
an unauthorized sentence or a fine that “could not have been imposed under any
circumstances in the particular case” (Breazell,
supra, at p. 304). Since the court
could lawfully have imposed the fine under section 273.5, subdivision (a), the
error was subject to forfeiture, and defendant’s failure to object in the trial
court forfeits his challenge to it on appeal.

Disposition

The
judgment is affirmed.





HULL , J.



We
concur:







BLEASE , Acting
P. J.







MAURO , J.