IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
January 20, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHRISTOPHER RYAN BASSETT, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Hull ,j.
P. v. Bassett 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CRF10173)
Defendant Christopher Ryan Bassett appeals from the imposition of sentence following a guilty plea to one count of Penal Code section 288, subdivision (a). (All further undesignated statutory references are to the Penal Code.) Defendant contends, and the People agree, that the matter must be remanded to the trial court to correct discrepancies between the court's oral pronouncement of sentence, the sentencing minute order, and the abstract of judgment as to the penalty assessments imposed under section 290.3. Agreeing with both parties, we shall reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
As the facts of defendant's offense are irrelevant to the sole issue on appeal, we omit them.
By an amended complaint, defendant was accused of one count of penetration of genital or anal openings with a foreign object of a person under 14 and more than 10 years younger than defendant (§ 289, subd. (j); count 1) and one count of lewd or lascivious acts upon a child under 14 (§ 288, subd. (a); count 2). As to count 2, it was alleged that defendant had committed an offense making him ineligible for probation (§ 1203.066, subd. (a)(8)).
After defendant pled guilty to count 2 and admitted the section 1203.066 allegation, the People dismissed count 1. The trial court thereafter sentenced defendant to six years in prison (the middle term), with 51 days of presentence custody credit (45 days actual time and 6 days pursuant to § 2933.1).
The trial court orally imposed the following fines and fees: a $1,200 restitution fine (statutory basis not stated); a second restitution fine, suspended (statutory basis not stated); $90 in victim restitution (§ 1202.4, subd. (f)); $1,074.59 plus 10 percent interest to the victim's mother for lost wages and medical bills, with future restitution amounts reserved (statutory basis not stated); $1,140 as a "[p]enalty assessment" (§ 290.3); a $30 court security fee (§ 1465.8); and a $30 "conviction fee" (statutory basis not stated).
The sentencing minute order shows the following fines and fees: $1,200 as a restitution fine (§ 1202.4, subd. (b)); $1,200 as a suspended restitution fine (§ 1202.45); the victim restitution imposed orally by the trial court ($90 pursuant to § 1202.4, subd. (f), and $1,074.59 plus 10 percent interest); "fine [amount unstated], plus penalty assessment of $1,140" (§ 290.3) (italics added); the $30 court security fee imposed orally by the trial court (§ 1465.8); and the $30 conviction assessment imposed orally by the trial court, with its statutory basis cited (Gov. Code, § 70373).
Finally, the abstract of judgment shows the restitution fines reflected in the sentencing minute order (§§ 1202.4, subd. (b), 1202.45); the victim restitution amounts previously mentioned, but with $1,074.59 specified as the amount due pursuant to section 1202.4, subdivision (f), and $90 as the amount due to the Restitution Fund; the previously mentioned court security fee (§ 1465.8) and criminal conviction assessment (Gov. Code, § 70373); and "fine, plus penalty assessment in the amount of $1,140" (§ 290.3) (italics added).
Defendant contends, and the People concede, that the abstract of judgment fails to itemize the separate fees, penalties, and surcharges imposed pursuant to section 290.3. Furthermore, as the People note, "the sentencing transcript, minute order, and abstract of judgment all differ, and none set forth the amount of the section 290.3 fine or itemize the penalty assessment." Therefore, the matter must be remanded.
Section 290.3 mandates a $300 fine when a person suffers his or her first conviction for a sex offense specified in section 290, subdivision (c). The offense of which defendant was convicted (§ 288, subd. (a)) is specified in section 290, subdivision (c), and the record shows no prior convictions for any such offense. Thus, the trial court was required to impose a $300 fine pursuant to section 290.3.
Additionally, the penalty assessments that could be imposed under section 290.3 include the following: a $300 assessment under section 1464 (representing 100 percent of the fine); a $60 surcharge under section 1465.7 (representing 20 percent of the fine); a $150 construction penalty assessment (Gov. Code, § 70372); a $210 county penalty assessment (Gov. Code, § 76000); a $60 emergency services penalty (representing 20 percent of the fine) (Gov. Code, § 76000.5); and two $30 DNA funding assessments (Gov. Code, §§ 76104.6, 76104.7). If all these assessments were imposed, they would total $840; when added to the mandatory $300 fine, this would yield the $1,140 figure that now appears in the oral pronouncement of judgment as a non-itemized "penalty assessment."
No matter how tedious it may seem, trial courts must recite all applicable fines, fees, and penalties on the record, including their statutory basis, and these fines, fees, and penalties must also be set out in full in the abstract of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) This case illustrates the confusion that can result when this practice is not followed. Not only are the component parts of the assessment under section 290.3 not itemized, but even the actual amount assessed is uncertain: the trial court orally gave $1,140 as the full "penalty assessment" without mentioning the mandatory fine, but the minute order and the abstract of judgment call that sum a penalty assessment in addition to the fine.
On remand, the trial court is directed to spell out in full all lesser amounts included in the $1,140 total the court called a "penalty assessment" under section 290.3, and in particular to state whether that total includes the $300 mandatory fine under that statute. If it does, then the minute order and the abstract of judgment must be amended accordingly. But whether the $1,140 total does or does not include that fine, the minute order and the abstract of judgment must be corrected to spell out all lesser amounts included within the total.
As indicated above, the trial court in orally pronouncing sentence did not cite the statutory basis for all the fines and fees it imposed. We respectfully urge the trial court to do so in the future. (People v. High, supra, 119 Cal.App.4th at pp. 1200-1201.)
The matter is remanded to the trial court with directions to prepare an amended abstract of judgment that clarifies the total penalty assessment under section 290.3 and itemizes all of its component parts and to furnish a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
RAYE , P.J.
NICHOLSON , J.
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