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People v. Knightbent

July 19, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DIANE DAWN KNIGHTBENT, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Tehama County, Dennis E. Murray, Judge. Affirmed as modified. (Super. Ct. No. NCR74974).

The opinion of the court was delivered by: Raye, J.

CERTIFIED FOR PUBLICATION

In this case, the services of an appointed counsel and a deputy attorney general, together with three justices and staff of this court, are applied to the resolution of a single issue: whether the court's order imposing a $34 fine on defendant was proper under Penal Code section 1202.5, subdivision (a) (hereafter § 1202.5(a)).*fn1 Defendant argues the court erred and the fine must be reduced to $10.

We shall conclude that indeed the court erred, but the error benefitted defendant and, as the Attorney General correctly asserts, the court should have imposed a total fine of $66. We shall modify the judgment accordingly and affirm in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was accused of second degree robbery (§ 211) and second degree burglary (§ 459). She pled guilty to second degree robbery, with the burglary count and the charges in two separate cases dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) On February 17, 2009, the trial court denied probation and sentenced defendant to two years in prison (the low term).

The trial court also imposed fees and fines which included a total assessment of $34 pursuant to Penal Code section 1202.5(a), as follows: $10 under section 1202.5(a) itself; $2 under Government Code section 70373, subdivision (a); $5 under Government Code section 70372, subdivision (a); $10 under Penal Code section 1464; and $7 under Government Code section 76000.

According to the probation report, on April 12, 2008, defendant was seen walking through a grocery store, putting items in a bag. When she moved toward the exit, the manager approached her and said, "Excuse me." She ran out the door, carrying the bag, and got into a sport utility vehicle in the parking lot. When the manager stood by the driver's side door and asked defendant to return to the store, she told him to leave her alone, then shifted into reverse and backed away, knocking the manager to the ground.

DISCUSSION

I.

Defendant contends that because section 1202.5(a) on its face provides for a fine of $10, the trial court exceeded its jurisdiction by imposing additional penalty assessments thereunder. Defendant is wrong. Her argument depends on the false premise, for which she cites no authority, that the fine required by section 1202.5(a) is a restitution fine to which no further assessments may be added. In reality, the fine is not a restitution fine, and the additional assessments the court imposed are mandatory.

Section 1202.5(a) provides: "In any case in which a defendant is convicted of any of the offenses enumerated in Section 211 . . . , the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution."

Fines collected under section 1202.5 are used to "implement, support, and continue local crime prevention programs" and "shall be in addition to, and shall not supplant funds received for crime prevention purposes from other sources." (§ 1202.5, subds. (b)(1), (b)(2) (hereafter § 1202.5(b)).)

"The Legislature has superimposed onto the base fine scheme a number of penalties, assessments, fees, and surcharges," which attach to "almost all . . . fines" imposed in criminal cases. (People v. ...


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