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The People v. Johnny Wayne Rogers

January 17, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHNNY WAYNE ROGERS, JR., DEFENDANT AND APPELLANT.



(Super. Ct. Nos. CM033633, CM035035, CM035023)

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

P. v. Rogers

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following defendant Johnny Wayne Rogers, Jr.'s, convictions for spousal abuse (Pen. Code, § 273.5; undesignated statutory references that follow are to the Penal Code) and receiving stolen property (§ 496), the trial court imposed a fine under section 672. Defendant contends the trial court erred in utilizing this statute as the basis for the fine and therefore the fine must be stricken. We agree the court erred, but find the issue forfeited by defendant's failure to object to the stated statutory basis of the fine in the trial court. Accordingly, we affirm the judgment.

FACTS AND PROCEEDINGS

Given the issue raised on appeal, a detailed recitation of the factual and procedural background underlying the case is not necessary.

In August 2010, in case No. CM033633, defendant pleaded no contest to misdemeanor battery (§ 242) and was placed on probation. Over a year later, defendant entered into a global disposition of a number of cases. In case No. CM035023, he pleaded no contest to spousal abuse (§ 273.5, subd. (a)) and admitted he had served two prior prison terms (§ 667.5, subd. (b)). In case No. CM035035, defendant pleaded no contest to receiving stolen property (§ 496) and admitted having served two prior prison terms. In exchange there was an agreed-upon lid on the sentence of six years eight months. Based on these pleas, the court also found defendant had violated the terms of probation in case No. CM033633.

Defendant was sentenced to a term of four years for spousal abuse, a consecutive term of eight months for receiving stolen property, and one year each for the two prior prison term enhancements. He was awarded 342 days of presentence custody credits. The court imposed a restitution fund fine of $200. The court also imposed a fine "under 672 of the Penal Code of $200, plus penalties, assessments, and surcharges for a total $720. That will be on one count. The other count, another fine, totaling $720 and broken down. Its items 3 and 4 of the state prison recommendation page in the probation report." Items 3 and 4 on the state prison recommendation page of the probation report provide the statutory basis for the fines, fees, and assessments. It indicates that both $200 fines were imposed under the authority of section 672. Defendant was also ordered to pay victim restitution.

DISCUSSION

Defendant contends the trial court improperly imposed a section 672 fine as to his spousal abuse conviction. Defendant is correct.

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 the criminal statute does not explicitly prescribe the imposition of a penal or base fine, 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).

Defendant was convicted of spousal abuse and receiving stolen property. No base fine is prescribed for receiving stolen property (see § 496); therefore, it is appropriate to utilize section 672 as to this offense. However, a base fine of up to $6,000 is prescribed for spousal abuse. (§ 273.5, subd. (a).) Accordingly, section 672 cannot be the statutory basis for a base fine on a conviction of spousal abuse. Contrary to the People's claim, the record clearly ...


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