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The People v. Kathryn A. Mckelvy

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


August 29, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KATHRYN A. MCKELVY, DEFENDANT AND APPELLANT.

(Super. Ct. No. T081004F1)

The opinion of the court was delivered by: Hoch ,j.

P. v. McKelvey 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kathryn Ann McKelvy pled guilty to second degree commercial burglary (Pen. Code, § 459)*fn1 after she purchased a television and DVD player with a check drawn on a closed account. The trial court imposed a three-year prison sentence after she failed to report to jail as she had agreed during her initial sentencing. The court also ordered defendant to pay various fines and fees, including a $675 fine under section 672 and a $33.75 fine under section 1202.5.

On appeal, defendant contends the $675 fine must be stricken as an unlawful additional penalty assessment for the burglary. We reject the contention but order the judgment modified to impose the correct amount of the fine specified in section 1202.5 and to impose other mandatory penalties overlooked by the trial court.

DISCUSSION

Whether the Fines under Penal Code Sections 672 and 1202.5 are Mutually Exclusive Defendant contends the imposition of a fine under section 1202.5 for theft precludes the addition of a section 672 fine for the same conviction. We disagree.

Section 672 provides that "[u]pon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed."

Section 1202.5 provides that "[i]n any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed." (Italics added.)

The italicized portion of section 1202.5 declares the Legislature's intent that the $10 fine for a theft offense be cumulative to any other applicable fine. Here, the trial court imposed a fine under section 1202.5 because defendant was convicted of burglary (§ 459). The fine under section 672 separately applied because defendant was convicted of an offense punishable by a state prison term. Nothing in the language of section 672 or 1202.5 indicates these fines to be mutually exclusive. To the contrary, section 1202.5 expressly anticipates that it be imposed in addition to other fines.

Defendant argues that the trial court "had no authority to impose an additional general fine pursuant to [] section 672 because it was trumped by the [] section 1202.5 theft fee." In support, defendant relies on this Court's decision in People v. Knightbent (2010) 186 Cal.App.4th 1105 (Knightbent). Knightbent does not help defendant.

Knightbent involved a challenge to the trial court's imposition of a $34 fine under section 1202.5 for a robbery. (186 Cal.App.4th at p. 1108.) Defendant in Knightbent argued that section 1202.5 imposed a maximum fine of $10. (Knightbent, supra, at p. 1108.) This court agreed and reduced the fine accordingly. (Id. at p. 1113.) In doing so, this court explained: "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 $10 obligation pursuant to [] section 1202.5(a) is a criminal fine, and the statute does not state that additional assessments, penalties, and surcharges may not be imposed thereunder. Therefore, a section 1202.5 fine is subject to the following additional assessments, surcharge, and penalties, which the Legislature has expressly provided must be added to any criminal fine: (1) a $10 penalty assessment pursuant to [] section 1464, subdivision (a)(1); (2) a $7 penalty assessment pursuant to Government Code section 76000, subdivision (a)(1); (3) a $2 penalty assessment pursuant to Government Code section 76000.5, subdivision (a)(1); (4) a $2 state surcharge pursuant to [] section 1465.7, subdivision (a); (5) a state court construction penalty of $5 or less pursuant to Government Code section 70372, subdivision (a)(1); (6) a $1 DNA penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and (7) a $1 DNA state-only penalty pursuant to Government Code section 76104.7, subdivision (a).[*fn2 ] (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530 (Castellanos).)" (Knightbent, supra, 186 Cal.App.4th at p. 1109.) Rather than holding that section 1202.5 sets forth the exclusive fine for a theft conviction, Knightbent confirms that other, additional fines may be imposed.*fn3 (Knightbent, at p. 1109.)

As in Knightbent, the fine imposed under section 1202.5 exceeds the statutory $10 maximum. Accordingly, we shall order the section 1202.5 fine reduced to $10. And, as in Knightbent, we will impose additional mandatory fines as required by sections 1464 [state penalty on criminal fines] and 1465.7, subdivision (a) [state surcharge], as well as Government Code sections 76104.6, subdivision (a)(1) [county DNA testing penalty] and 76104.7, subdivision (a) [state-only DNA testing penalty].

DISPOSITION

The trial court's order imposing a fine under Penal Code section 1202.5 is modified to decrease the fine from $33.75 to $10 and to include additional assessments as follows: a fine of $10 (Pen. Code, § 1464, subd. (a)(1)), a state surcharge of $2 (Pen. Code, § 1465.7, subd. (a)), a $1 DNA testing penalty for the county (Gov. Code, § 76104.6, subd. (a)(1)), and an additional $3 state-only DNA testing penalty (Gov. Code, § 76104.7, subd. (a)).

In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly, and to forward a certified copy to the Department of Corrections and Rehabilitation.

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


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