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The People v. Kao Seng Saeteurn

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


August 15, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KAO SENG SAETEURN, DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 06F10648, 08F08167)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Kao Seng Saeteurn asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error that would result in a disposition more favorable to defendant. We note that the trial court did not identify all fines and fees on the record, and that the abstract of judgment does not specify all the fines and fees imposed upon defendant. Nor does the abstract reflect the date of conviction. Therefore, we remand the matter to the trial court to set forth the fines and fees on the record, and to amend the abstract of judgment to reflect the fines and fees imposed upon defendant and the date of conviction. In all other respects, the judgment is affirmed.

I.

Summary of Facts and Procedural History

Defendant was charged in two Sacramento County Superior Court cases.

In case No. 06F10648, on or about December 7, 2006, defendant used a firearm in an attempt to kidnap an adult victim.*fn1

Defendant was charged with attempted kidnapping (Pen. Code, §§ 664, 207, subd. (a) - count 1),*fn2 false imprisonment (§ 236 - count 2), assault with a firearm (§ 245, subd. (a)(2) - count 3), and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a) - count 4). Counts 1 and 2 alleged firearm use pursuant to section 12022.53, subdivision (b), and count 3 alleged firearm use pursuant to section 12022.5, subdivisions (a) and (d).

In case No. 08F08167, between August 1, 2005, and December 31, 2005, defendant placed his penis in the vagina of T.T., who was less than 14 years of age, while they lived on Star Stone Way. (Count 1.) Between October 1, 2005, and June 1, 2007, defendant placed his penis in the vagina of T.T., who was under 14 years of age, while they lived on 42nd Avenue. (Count 2.) On or about June 11, 2008, defendant, who was more than 10 years older than the victim, placed his hand on T.T.'s breast, placed his hand on her vaginal area, and orally copulated her. (Counts 6, 7, and 8.)

Defendant was charged with three counts of lewd and lascivious conduct with a person under 14 years of age (§ 288, subd. (a) - counts 1-3) and five counts of lewd and lascivious conduct with a person 14 or 15 years old with the defendant being at least 10 years older than the person (§ 288, subd. (c)(1) - counts 4-8). It was further alleged that defendant committed the offenses in counts 4 through 8 while he was on bail release in case No. 06F10648 (§ 12022.1).

On November 2, 2010, defendant entered a plea bargain in both cases. In case No. 06F10648, he pled no contest to attempted kidnapping (count 1) and admitted the firearm allegation; in case No. 08F08167, he pled no contest to five child molestation charges (counts 1, 2, and 6-8). Defendant admitted to being released on bail in case No. 06F10648 when he committed the offenses in case No. 08F08167. Defendant's pleas and admissions were given in exchange for the dismissal of all other charges and a stipulated prison sentence of 20 years 6 months.

On May 19, 2011, the trial court imposed the agreed upon sentence as follows: (1) In case No. 06F10648, a term of two years six months (one-half middle term of five years) for the attempted kidnapping plus ten years for the personal firearm use; and (2) in case No. 08F08167, consecutive terms of two years each (one-third middle term of six years) for the child molestations in counts 1 and 2, consecutive terms of eight months each (one-third middle term of two years) for the child molestations in counts 6, 7, and 8, and a consecutive term of two years for the on-bail enhancement.

The court ordered defendant to register as a sex offender. In case No. 06F10648, defendant received presentence custody credits of 119 days (104 actual, 15 conduct), and in case No. 08F08167, he received presentence custody credits of 1,104 days (960 actual, 144 conduct) -- a total of 1,223 days. The court imposed $200 restitution fines in each case in accordance with sections 1202.4 and 1202.45. As to other fines and fees, the court stated, "The mandatory fees and fines, the court security surcharge, and other mandatory fees and fines will be imposed on both cases. Any fees or fines not mandated will be suspended for good cause."

Defendant appeals with a certificate of probable cause.

II. Analysis

Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant 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.

We have undertaken an examination of the entire record and find no arguable issues that would result in a disposition more favorable to defendant. However, we have discovered an error relating to the imposition of fines and fees and their recording in the abstract of judgment.

Aside from specifying the $200 restitution fines (§§ 1202.4, 1202.45) for each case, the court simply ordered that the "mandatory fees and fines will be imposed," and that "fees or fines not mandated will be suspended for good cause." The abstract of judgment sets forth some of the fines and fees suggested by the probation officer for each case, but does not include all of them nor does it specify to which case the fine or fee applies. The abstract also does not reflect the $200 fine suspended unless parole is revoked imposed in each case (§ 1202.45).

In People v. High (2004) 119 Cal.App.4th 1192, we "recognize[d] that a detailed recitation [by the court] of all the fees, fines and penalties on the record may be tedious, [but] California law does not authorize shortcuts." (Id. at p. 1200.) We also stated that the amount of "[a]ll fines and fees must be set forth in the abstract of judgment" to enable the Department of Corrections and Rehabilitation to "fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency." (Ibid.) Because the present record does not comply with these requirements, we must remand the matter to the trial court to set forth all the fines and fees imposed upon defendant.

We also note that the abstract of judgment does not reflect the date of conviction for the offenses.

DISPOSITION

This matter is remanded to the trial court to set forth on the record the fines and fees imposed upon defendant and to prepare an amended abstract of judgment properly reflecting the imposition of such fines and fees and the date of conviction for the offenses. The trial court shall forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

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


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