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The People v. Juan Grijalva Bracamontes

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


October 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JUAN GRIJALVA BRACAMONTES, DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F4822)

The opinion of the court was delivered by: Nicholson , Acting P.J.

P. v. Bracamontes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Juan Grijalva Bracamontes pled no contest to possessing methamphetamine for sale (Health & Saf. Code, § 11378) and was sentenced to prison. On appeal, defendant asserts the trial court erred, because it impermissibly imposed penalty assessments upon a restitution fine, and failed in the abstract of judgment to identify each fine and fee imposed, and the statute upon which each fine and fee was based. The People concede both errors, but only the second has merit. We order the abstract of judgment amended, and otherwise affirm the judgment.

BACKGROUND

In light of this appeal's limited focus, a detailed recitation of facts is unnecessary.

At sentencing, the court ordered defendant "to pay the following: The base fine of $200, plus the various penalty assessments, bringing that total to $760; $30 court security fee; a 30 dollar criminal conviction assessment, 50 dollar criminal lab fee, plus the various surcharges, bringing that to a total of 190 dollars; restitution fine of $200, plus a ten percent administrative fee, a second restitution fine of $200 dollars is imposed but stayed pending your successful competition of parole. [¶] You're to provide the [P]enal [C]ode section 296 samples. Register pursuant to Health and Safety Code section 11590. Counsel, you waive any further specification of assessments and statutory authority?

"[Defense Counsel]: So waived."

The minute order, signed by the judge, recites the component parts of fees and assessments by their corresponding amount and statutory basis; we repeat here only those that are placed at issue by this appeal:

"The Court further orders, the defendant shall pay a restitution fine of $200.00 pursuant to Penal Code section 1202.4, plus a 10% administrative fee pursuant to Section 1202.4(l) of the Penal Code.

"The Court further orders, an additional restitution fine in the amount of $200.00, which shall be suspended unless defendant's parole is revoked, pursuant to Penal Code section 1202.45.

"The Court further orders the defendant to pay a total of $760.00, which includes a fine of $200.00, the state penalty assessment (PC 1464(a)) of $200.00, the DNA penalty assessment (GC 76104.6) of $20.00, the DNA penalty assessment (GC 76104.7) of $60.00, the state court facilities construction fee (GC 70372) of $100.00, the County Penalty assessment (GC 76000(a)(1)) of $140.00, and the state criminal fine surcharge (PC 1465.7(a)) of $40.00." (Some capitalization omitted.)

The abstract of judgment identifies the two $200 restitution fines imposed pursuant to Penal Code sections 1202.4 and 1202.45 and, under "[o]ther orders," it states "Pay a fine of $760.00 (see breakdown in minute order) -- Register HS 11590."

DISCUSSION

I

Defendant first argues it was improper for the trial court to have imposed penalty assessments on the $200 Penal Code section 1202.4, subdivision (a)(3), restitution fine. The People incorrectly concede the issue.

We agree that restitution fines are, by statute, not subject to further penalty assessments imposed pursuant to the Penal Code or the Government Code. (People v. Knightbent (2010) 186 Cal.App.4th 1105, 1110 ["restitution fines under [Penal Code] section 1202.4 are exempt from additional penalties and surcharges because the Legislature expressly said so"]; see also People v. McHenry (2000) 77 Cal.App.4th 730, 734.)

But the record does not establish that the trial court in fact did impose any penalty assessments on the Penal Code section 1202.4 restitution fine. To the contrary, those assessments appear to have been imposed separately, upon a different $200 fine. Although the statutory basis of the "base fine" component of the $760 aggregate fine is nowhere identified at the hearing, this is not error, because the defendant expressly waived recitation of the statutory bases of all fines and fees.

Traditionally, base fines are those imposed by the penal statute, in addition to a jail or prison sentence. (People v. Sorenson (2005) 125 Cal.App.4th 612, 617.) Where, as here, the criminal statute does not explicitly prescribe the imposition of a penal or base fine, Penal Code section 672 permits the court at sentencing to "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." This statute applies to all crimes, whether defined in the Penal Code or elsewhere (People v. Shah (1949) 91 Cal.App.2d 716, 721) and, specifically, applies to violations of the Health and Safety Code for drug possession. (People v. Clark (1992) 7 Cal.App.4th 1041, 1044-1046.)

In light of any contrary reference in the record, we assume the trial court imposed the low base fine pursuant to Penal Code section 672. As imposition of a $200 base fine was so authorized, the imposition of penalty assessments on that fine was not error.

II

The abstract of judgment fails to identify the statutory bases of various fines and fees from the bench at sentencing.

The abstract of judgment or order of probation filed by the trial court must "separately list, with the statutory bas[e]s, all fines, fees and penalties imposed." (People v. High (2004) 119 Cal.App.4th 1192, 1201.) The abstract of judgment here purports to incorporate the description of fines and fees imposed as contained in the minute order. This is not sufficient. (Id. at p. 1200 ["If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency"]; see People v. Eddards (2008) 162 Cal.App.4th 712, 717.)

DISPOSITION

The trial court is directed to prepare an amended abstract of judgment that separately lists, with the statutory bases, all fines, fees, and assessments imposed. The trial court shall

forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: HULL , J. MURRAY , J.

20111026

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