P. v. Frank
Filed 3/21/13 P. v. Frank CA6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
LAWRENCE
FRANK, JR.,
Defendant and
Appellant.
H037578
(Santa Clara
County
Super. Ct.
No. CC310019)
Lawrence
Frank, Jr. appeals a judgment of conviction that resulted from a no contest
plea to carjacking (Pen. Code, § 215).
in calculating the penalty assessment on his fine. The Attorney General concedes that the court
erred in calculating the assessment, but argues that because the amount is
deminimus, this court should dismiss the appeal.
Statement of the Case
As the
result of an incident that occurred on April
9, 2003, defendant was charged by information in September 2004
with four counts of second degree robbery
(§§ 211/212.5, subd. (c); counts 1, 2, 11, 12), two counts of
counts 3 and 4), two counts of carjacking (§ 215; counts 5 and 10), two counts
of attempted first degree murder of a peace officer (§§ 664, subd. (f)/187,
subd. (a); counts 6 and 7), one count of attempted carjacking (§§ 664/215;
count 8), and one count of kidnapping (§ 207, subd. (a); count 9). The information also alleged weapons enhancements
as to the charges (§§ 12022, subds. (a)(1), 12022.53, subd. (b)), that he had
three prior strike convictions (§§ 667, subds. (b-i), two prior convictions for
a serious felonies (§ 667, subd. (a)), and one prior felony conviction for
which he served a prison term (§ 667.5, subd. (b)).
As part of
no contest to one count of carjacking (§ 215; count 5), and admitted that he
personally used a firearm in the commission of that crime (§§ 12022.53, subd.
(b)). Defendant also admitted the three
prior strike convictions, the two prior serious felony convictions, and the
prison prior. The remaining charges in
the information were dismissed.
Prior to
sentencing, the court dismissed one of defendant’s prior strike convictions
pursuant to section 1385, and People v.
Romero (1996) 13 Cal.4th 497.
Discussion
Defendant
asserts the trial court erred in imposing the penalty assessment addition to
his $10 fine. Specifically, defendant
argues the $28.50 penalty assessment was improperly calculated, and should
actually be $22.50.
Although
the Attorney General argues the appeal should be dismissed because of the
deminimus amount at issue, and the fact that defendant failed to raise the
issue below, she also concedes the fact that the trial court erred in its
calculation of the penalty assessment.
Defendant’s
claim on appeal is that the sentence was unlawful under the constitutional
prohibition against the imposition of an ex post facto law (Cal. Const.,
art. I, § 10, cl. 1). As such, he
asserts an error of law, and he is not barred by his failure to raise an
objection below. “A claim that a sentence
is unauthorized may be raised for the first time on appeal, and is subject to
correction whenever the error comes to the attention of the reviewing
court.†(People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7.)
The basis
of defendant’s appeal is that while there are “seven assessments, surcharges,
and penalties parasitic to an underlying fine that could increase the fine,†(
1353, 1374 (Voit)), there are three
added penalties that went into effect after defendant committed the current
offense on April 9, 2003.
Specifically, the assessment under Government Code section 76104.6,
subdivision (a) that adds 10 percent became effective on November 3, 2004. (Prop. 69, § IV.1), the
assessment under Government Code section 76104.7 that subdivision (a) that adds
30 percent became effective on July 12. 2006 (Stats. 2006, c. 69, § 18) and the
assessment under Government Code section 76000.5, subdivision (a) that adds 20
percent became effective on January 1, 2007 (Stats. 2006, c. 841, § 1). (Voit,
supra, 200 Cal.App.4th at p.
1374.) Because these penalties went into
effect after he committed his crimes, they may not be applied to his fine under
the constitutional prohibition of an ex post facto law. (People
v. Batman (2008) 159 Cal.App.4th 587, 590.)
Here, based
on the date of defendant’s crime, and the effective date of the penalty
provisions, defendant is subject to a total of 225 percent in assessments, for
a total of $22.50. This amount is broken
down as follows: 100 percent state penalty assessment pursuant to section 1464,
subdivision (a)(1), 20 percent state surcharge pursuant to section 1465.7, 35
percent state courthouse construction penalty reduced from 50 percent pursuant
to Government Code sections 70372 and 76000, subdivision (e), and 70 percent
additional penalty pursuant to Government Code section 76000, subdivision
(a)(1). The judgment will be modified
accordingly.
Disposition
The
judgment is modified to reduce defendant’s total penalty assessment to
$22.50. As modified, the judgment is
affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
name="_ftn1" title=""> [1] All further unspecified statutory references
are to the Penal Code.
name="_ftn2" title=""> [2] This court denied the Attorney General’s
motion to dismiss the appeal, and deemed the motion to be the respondent’s
brief.
