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The People v. Jeffery Allen Waisner

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


December 16, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JEFFERY ALLEN WAISNER, DEFENDANT AND APPELLANT.

(Super. Ct. No. 62-093906)

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

P. v. Waisner 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Jeffery Allen Waisner was charged with violating Penal Code section 288, subdivision (c)(1)*fn1 (counts one & two), section 288.3, subdivision (a) (count three), and section 647.6, subdivision (a), a misdemeanor (counts four & five).

Defendant pleaded no contest to count one, with the understanding that the remaining counts would be dismissed and he would be sentenced to state prison for three years. After stipulating that the factual basis for his plea was contained in count one and in police report No. 09-1842 (not in the appellate record), defendant waived the completion of a probation report.

According to the complaint, between April 1, 2009, and September 22, 2009, defendant committed a lewd and lascivious act on A.E., who was 14 or 15 years old. Defendant was at least 10 years older than the victim.

In April 2010, the trial court sentenced defendant to three years in state prison (the upper term on count one). The court awarded 324 days of presentence credit (216 actual days plus 108 conduct days).*fn2 The court orally imposed a $200 restitution fine (§ 1202.4, subd. (b)(1)) and a suspended $200 restitution fine (§ 1202.45). The court reserved jurisdiction over victim restitution (§ 1202.4, subd. (f)).

According to the sentencing minute order and the abstract of judgment, defendant was also required to register as a sex offender (§ 290), to submit to AIDS testing (§ 1202.1), and to provide a sample of his DNA (§ 296). Additionally, he was ordered to pay a $30 court security fee (§ 1465.8) and a $30 "facilities fund fine" under an unspecified statute.*fn3

Defendant filed a timely notice of appeal.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to 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.

Our examination of the record has disclosed a problem with the fines and fees purportedly imposed. As we have noted, the trial court at sentencing did not orally impose either the court security fee (§ 1465.8) or the facilities fund fee, which fees appear only in the sentencing minute order and the abstract of judgment.

Generally, where there is a discrepancy between the oral pronouncement of judgment and the sentencing minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) Because the court security fee and the facilities fund fee were not orally pronounced, they are not part of the judgment and should not have been included in the sentencing minute order and the abstract of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.)

However, both the court security fee and the court facilities fee are mandatory. (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1415; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5-7; People v. Crittle (2007) 154 Cal.App.4th 368, 370.) Since the fees are mandatory and apply to each conviction, the court's error can be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354.) In this case, defendant was convicted on one count and the court should have imposed one court security fee and one court facilities fee. Where a trial court fails to impose a statutorily mandated fine or fee, it renders an unauthorized sentence, which an appellate court is empowered to correct even if the People made no objection to the trial court. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256.)

Accordingly, we shall modify the judgment to include imposition of the court security fee of $30 (Pen. Code, § 1465.8) and the court facilities fee of $30 (Gov. Code, § 70373). Because the fees already appear in the sentencing minute order and the abstract of judgment, there is no need to modify these documents.

DISPOSITION

The judgment is modified to include imposition of the $30 court security fee and $30 court facilities fee. In all other respects, the judgment is affirmed.

We concur: RAYE, P. J. ROBIE, J.


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