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The People v. Jose J. Nunez

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


December 20, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE J. NUNEZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. SF108703A)

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

P. v. Nunez

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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's appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with Kelly, we will provide a summary of the offenses and the proceedings in the trial court.

Defendant Jose J. Nunez was charged by information with 11 offenses, all alleged to have occurred on June 22, 2008: felon in possession of a firearm (count 1; Pen. Code, § 12021, subd. (a)(1)); convicted felon carrying a concealed firearm in a vehicle (count 2; Pen. Code, § 12025, subd. (a)(1));*fn1 convicted felon carrying a loaded firearm on his person or in a vehicle in a city (count 3; Pen. Code, § 12031, subd. (a)(1)); possession of ammunition (count 4; Pen. Code, § 12316, subd. (b)(1)); transportation or sale of methamphetamine (count 5; Health & Saf. Code, § 11379); street terrorism (count 6; Pen. Code, § 186.22, subd. (a)); possession of methamphetamine for sale (count 7; Health & Saf. Code, § 11378); possession of a concealed firearm by a gang member (count 8; Pen. Code, § 12025, subd. (b)(3)); possession of a loaded firearm by a participant in a street gang (count 9; Pen. Code, § 12031, subd. (a)(2)(C)); having a false compartment with the intent to conceal a controlled substance (count 10; Health & Saf. Code, § 11366.8, subd. (a)); and carrying a concealed weapon (count 11; Pen. Code, § 12025, subd. (b)(6)).

As to counts 1 through 9, defendant was alleged to have suffered three prior convictions within the meaning of Penal Code section 1203, subdivision (e)(4); and as to counts 5 and 7, defendant was alleged to have suffered four prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c).

Defendant was also alleged to have served two prior prison terms (Pen. Code, § 667.5, subd. (b)) for convictions of Health and Safety Code section 11378 on March 21, 2001, and February 9, 2006, and to have been personally armed with a firearm within the meaning of Penal Code section 12022, subdivision (c).

On October 15, 2009, defendant pled guilty to counts 1, 5, and 6, admitted one prior prison term as to count 1, and one prior conviction under Health and Safety Code section 11370.2, subdivision (b), as to count 5.

On January 4, 2010, the trial court sentenced defendant to an aggregate state prison term of seven years four months, consisting of two years (the lower term) on count five, enhanced by three years under Health and Safety Code section 11370.2, subdivision (b), to be served consecutively; eight months (one-third the middle term) on count 1, to run consecutively to count 5, enhanced by one year, consecutive, under Penal Code section 667.5, subdivision (b); and eight months (one-third the middle term) on count 6, also to run consecutively. The court awarded defendant presentence custody credits of 841 days (561 days' actual time and 280 days' conduct credits).

According to the reporter's transcript, the court ordered defendant to pay "a $20 restitution fine." The minute order and abstract of judgment reflect that a restitution fine of $200 was imposed pursuant to Penal Code section 1202.4. Also according to the reporter's transcript, the trial court suspended a $200 parole revocation restitution fine pending completion of parole and imposed a $90 "court security fee" and a $90 "administrative fee." The minute order and abstract of judgment indicate that the court imposed a $90 "security fee" and a $90 "conviction assessment," pursuant to Government Code section 70373, subdivision (a)(1). Although the court did not orally impose an administrative surcharge to the restitution fine, the minute order and abstract reflect a $20 administrative surcharge. The statutory basis for the "administrative surcharge" is not stated either in the minute order or the abstract of judgment.

According to both the testimony at defendant's preliminary hearing and the probation report, a Stockton police officer detained defendant on a traffic stop around 8:00 p.m. on June 22, 2008. After verifying that defendant was on parole, the officer searched his van and found 10 baggies containing a white crystal substance, a handgun, and a scale.

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. (Wende, supra, 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.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

We conclude, however, that the matter must be remanded to the trial court with directions to impose the mandatory minimum restitution fine of $200 as required by Penal Code section 1202.4, subdivision (b)(1), unless the court determines a compelling reason to not impose the fine under Penal Code section 1202.4, subdivision (c). The court shall also impose the 10 percent administrative fee required by Penal Code section 1202.4, subdivision (l). (People v. Robertson (2009) 174 Cal.App.4th 206, 211.) That fee is $20. The court is further directed to prepare an amended abstract of judgment that specifies the statutory basis for the administrative fee (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201), and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

DISPOSITION

The matter is remanded to the trial court with the above directions. In all other respects, the judgment is affirmed.

We concur: HULL , Acting P. J. BUTZ , J.


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