P. v.
Filed 2/27/13 P. v. Clark
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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARVONE LAMONT CLARK,
Defendant and Appellant.
C072130
(Super. Ct. No. 12F00337)
Appointed
counsel for defendant Charvone Lamont Clark has asked this court to review the
record to determine whether there exist any
v. Wende (1979) 25 Cal.3d 436 (Wende).) Although we find no errors which favor
defendant, we must remand for amendment of the abstract of judgment.
BACKGROUND
On January 10, 2012, defendant entered
his victims’ home and, acting in concert with two or more people, pointed a
firearm at multiple victims and stole a safe.
The People
filed an amended information accusing defendant of
& 2; Pen. Code,
title="">[1]
§ 209, subd. (b)(1)), first degree
robbery (counts 3, 4, & 6; § 211), and assault with a firearm
(count 5; § 245, subd. (a)(2)). As
to count 4, it was alleged that defendant voluntarily acted in concert with two
or more other persons. (§ 213,
subd. (a).) As to counts 1 through 4, it
was alleged that defendant personally used a firearm. (§ 12022.53, subd. (b).) It was further alleged that defendant had
three prior strike convictions.
(§§ 667, subds. (b)-(i), 1170.12.)
Defendant
pled no contest to count 4 and admitted the firearm enhancement on that count
and one prior strike, in return for a stipulated sentence of 28 years in state
prison and the dismissal of the remaining counts and allegations with a
waiver for restitution. Defendant waived
referral to probation.
The trial
court sentenced defendant to the stipulated 28-year term, consisting of the
upper term of nine years on count 4, doubled for the strike, plus 10 years
consecutive for the firearm use enhancement.
The court awarded 216 days of credit for actual custody, plus 31 days of
conduct credit (§ 2933.1), for a total of 247 days of presentence custody
credit. The court imposed a $6,720
restitution fine (§ 1202.4, subd. (b)) and reserved determination of
victim restitution. The court also
imposed a $10 crime prevention fine (§ 1202.5), a $340.01 main jail
booking fee (Gov. Code, § 29550.1), a $62.09 jail classification fee
(Gov. Code, § 29550.2), a $40 court operations assessment (§ 1465.8),
and a $30 court facility fee (Gov. Code, § 70373).
DISCUSSION
Counsel
filed an opening brief that sets forth the facts of the case and asks us to
determine whether there are any arguable
issues on appeal. (
file a supplemental brief within 30 days of the date of filing of the opening
brief. More than 30 days have elapsed, and
we have received no communication from defendant. We have undertaken an examination of the
entire record and find no arguable error that would result in a disposition
more favorable to defendant. We do,
however, find two errors that require the trial court to amend the abstract of
judgment.
First, the
trial court failed to impose a suspended parole revocation restitution fine
pursuant to section 1202.45. Such a
fine, in the same amount as the restitution fine imposed pursuant to section
1202.4, subdivision (b), is mandatory in every case where a prison term
includes a period of parole. (
300, 302; People v. Rodriguez (2000)
80 Cal.App.4th 372, 375-378; People
v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256.) Where a fine under section 1202.4,
subdivision (b) has been imposed, the failure to impose a fine under section
1202.45 results in an unauthorized sentence, which we may correct in the first
instance on appeal. (
80 Cal.App.4th at p. 376.)
Second, the
trial court’s oral pronouncement of sentence failed to specify the statutory
basis for the main jail booking fee and the jail classification fee, as does
the abstract of judgment, and the abstract also fails to specify the statutory
basis for the crime prevention fee, the court operations assessment, and the
court facility fee. As we held in
119 Cal.App.4th 1192, the trial court is required to include the statutory
bases of all fees, fines, and penalties imposed upon defendant in its oral
imposition of sentence and the corresponding abstract of judgment.
DISPOSITION
The trial court is directed to
prepare an amended abstract of judgment in
accordance with this opinion, and to provide a certified
copy of the amended abstract to the Department of Corrections and
Rehabilitation. The judgment is affirmed
as modified.
DUARTE , J.
We concur:
RAYE , P. J.
BUTZ , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Penal Code.
name="_ftn2" title="">[2] People
v. Harvey (1979) 25 Cal.3d 754.
