IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
January 17, 2013
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 reflects that the court utilized section 672 as the statutory basis for the base fines on both offenses. This was improper.
However, defendant's conclusion that the fine must therefore be stricken is incorrect. Defendant forfeited the error by failing to object in the trial court. Defendant claims the issue is not forfeited because the sentence was unauthorized. Generally, a sentence is unauthorized "where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing. [Citation.] . . . [¶] In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (People v. Scott (1994) 9 Cal.4th 331, 354.)
Defendant relies on People v. Breazell (2002) 104 Cal.App.4th 298 (Breazell), to support his claim that the fine imposed under section 672 resulted in an unauthorized sentence. Breazell is inapposite. Breazell was convicted of possessing cocaine base for sale. The court imposed two separate fines on that conviction, one under section 672 and another under Health and Safety Code section 11372, which authorized fines of up to $20,000 for persons convicted of Breazell's offense. The appellate court concluded that since Health and Safety Code section 11372 provided for a base fine, the fine imposed under Penal Code section 672 for the same offense was unauthorized, because section 672 included a limiting provision which "was meant to ensure that a fine pursuant to section 672 would not be imposed if another statute authorized a fine for the offense." (Breazell, supra, 104 Cal.App.4th at p. 304.)
Here, in contrast to Breazell, the trial court imposed only one base fine for spousal abuse. Although it improperly identified section 672 as the statutory basis for the fine, the fine could have been imposed pursuant to section 273.5, subdivision (a). Thus, the court's reliance on the wrong statute did not result in the imposition of an unauthorized sentence or a fine that "could not have been imposed under any circumstances in the particular case" (Breazell, supra, at p. 304). Since the court could lawfully have imposed the fine under section 273.5, subdivision (a), the error was subject to forfeiture, and defendant's failure to object in the trial court forfeits his challenge to it on appeal.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. MAURO , J.
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