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The People v. Earl Ray Hughes

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


November 26, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EARL RAY HUGHES, DEFENDANT AND APPELLANT.

(Super. Ct. No. NCR81803)

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

P. v. Hughes

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.*fn1 Having reviewed the record as required by People v. Wende, we modify the judgment to include the mandatory parole revocation restitution fine, which was omitted by the trial court. We also direct the court to separately list in the abstract of judgment all fines, fees and penalties that comprise the $2,175 fine imposed for the violation of Vehicle Code section 23153, subdivision (b) and affirm as modified.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by amended information with vehicular manslaughter without gross negligence (count I; Pen. Code, § 191.5, subd. (b)); driving under the influence causing injury (count II; Veh. Code, § 23153, subd. (a)); driving with a blood-alcohol level of .08 percent or more causing injury (count III; Veh. Code, § 23153, subd. (b)); possession of an assault weapon (count IV; Pen. Code, former § 12280, subd. (b)); and misdemeanor driving without a license (count V; Veh. Code, § 12500, subd. (a)). As to counts II and III, it was alleged that defendant proximately caused bodily injury to more than one victim (Veh. Code, § 23558) and personally inflicted great bodily injury on a victim (Pen. Code, § 12022.7, subd. (a)).

After initially pleading not guilty, defendant entered a plea of guilty to counts I and III and admitted the great bodily injury enhancement on the latter count, with the understanding that the remaining three counts and the special allegation would be dismissed and he would receive a stipulated state prison term of five years eight months.

According to the colloquy at the change of plea hearing, on or about May 20, 2011, while driving with a blood-alcohol level of .08 percent or more, defendant made an unsafe or unlawful turn, killing Danny Mendoza and inflicting great bodily injury upon Garus Fowler.

The trial court sentenced defendant to the stipulated prison term of five years eight months, consisting of the two-year midterm on count I, eight months (one-third the midterm) consecutive on count III, and three years consecutive for the great bodily injury enhancement. The court awarded defendant 205 days of presentence custody credit (179 actual days and 26 conduct days). The court imposed a $400 restitution fine (Pen. Code, § 1202.4, subd. (b)). The court also imposed a $2,175 fine for the violation of Vehicle Code, § 23153, subdivision (b), which included the base fine and unspecified assessments and fees.*fn2

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. However, we have found sentencing problems that require modification of the judgment and remand.

It is well settled that the trial court must recite the statutory basis for all fees and fines on the record at sentencing. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) Here, the trial court did not do so, and problems resulted.

First, the trial court failed to impose a suspended parole revocation restitution fine (Pen. Code, § 1202.45) in the same amount as the restitution fine (Pen. Code, § 1202.4, subd. (b)). The fine under Penal Code section 1202.45 is mandatory in every case where a prison term includes a period of parole. (People v. Tillman (2000) 22 Cal.4th 300, 302; People v. Rodriguez (2000) 80 Cal.App.4th 372, 375-378; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256.) Where a fine under Penal Code section 1202.4, subdivision (b) has been imposed, the failure to impose a fine under Penal Code section 1202.45 results in an unauthorized sentence, which we may correct in the first instance on appeal (People v. Rodriguez, supra, 80 Cal.App.4th at p. 376).*fn3

Second, although the probation report enumerates all the components of the aggregate fine imposed for the violation of Vehicle Code section 23153, subdivision (b) and the court orally imposed all fines and fees "as recommended," the abstract of judgment does not separately list those fines, assessments and fees.

We therefore remand the matter to the trial court with directions to prepare an amended abstract of judgment that includes the mandatory $400 suspended parole revocation restitution fine (Pen. Code, § 1202.45) and enumerates all components of the aggregate $2,175 fine. In all other respects, the judgment and sentence are affirmed.

DISPOSITION

The matter is remanded to the trial court with directions to prepare an amended abstract of judgment that includes the mandatory fine under section 1202.45 and enumerates all components of the fine imposed for the violation of Vehicle Code section 23153, subdivision (b). As modified, the judgment is affirmed.

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


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