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The People v. andres Santiago Perez

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


February 6, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANDRES SANTIAGO PEREZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. 11F03842)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

Shortly before midnight on May 25, 2011, while on patrol in a marked vehicle, Sacramento Police Officer Stephen Moore ran the license plate number on a car. A return from the Department of Motor Vehicles (DMV) on the patrol car's computer screen reflected that the vehicle registration had been suspended effective March 21, 2011. Officer Jennifer Ligon Nichols who was driving the patrol vehicle activated the emergency lights. Defendant Andres Perez, the driver of the car, made a U-turn, looked at the officers, and then sped off. Officer Ligon Nichols activated the siren, turned, and followed defendant who led the officers on a chase during which defendant exceeded the speed limit, ran two stop signs and a red light, and turned off his headlights. He finally stopped the car and fled on foot, jumping over two fences to his home where he was arrested between 20 and 45 minutes later.

Defendant had been previously convicted of driving on a suspended license on June 25, 2006, September 13, 2006, and February 1, 2010.

After his suppression motion was denied, defendant entered a negotiated plea of no contest to felony evading (Veh. Code, § 2800.2, subd. (a); count 1) and driving on a suspended license, a misdemeanor (Veh. Code, § 14601.2, subd. (a); count 2) with three priors (Veh. Code, §§ 14601.1, subd. (a), 14601.2, subd. (a)) in exchange for the midterm of two years for count 1 and a concurrent 180-day term for count 2 and dismissal of a prior prison term allegation. The court sentenced defendant to time served (366 actual days plus 366 conduct days for a total of 732 days of presentence custody credit) and released him on parole. (Pen. Code, § 1170, subd. (a)(3).)

Defendant appeals.

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 elapsed, and we received no communication from defendant.

We find an error in judgment and errors in the minute order of sentencing and the abstract of judgment which must be corrected.*fn1 The court clerk included in the minute order of sentencing and on the abstract of judgment several fines/fees that were not orally imposed by the trial court in defendant's presence: a $200 restitution fine, a $200 parole revocation restitution fine, a $40 court security fee, and a $30 criminal conviction assessment fee. The abstract of judgment must reflect the oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment." (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388, 389.) If the clerk includes fines/fees in the minute order or on the abstract that were not orally imposed, those fines/fees must be stricken from the minute order and abstract. (Id. at pp. 387-389; People v. Rowland (1988) 206 Cal.App.3d 119, 124.)

A restitution fine (Pen. Code, § 1202.4) "is mandatory unless the sentencing court, in the words of the statute, 'finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.'" (People v. Tillman (2000) 22 Cal.4th 300, 302 (Tillman); Pen. Code, § 1202.4, subd. (b); see also People v. Avila (2009) 46 Cal.4th 680, 729 [citing Tillman] and People v. Turrin (2009) 176 Cal.App.4th 1200, 1208, fn. 3 ["Tillman is still good law and has not been legislatively overruled"].) Thus, a restitution fine under Penal Code section 1202.4 is "a discretionary sentencing choice." (Tillman, supra, 22 Cal.4th at p. 303; People v. Smith (2001) 24 Cal.4th 849, 853 (Smith).) In rejecting the People's claim the judgment should be modified on appeal to include the omitted restitution fine, Tillman applied the doctrine of waiver to the People's failure to object to the trial court's failure to state reasons for not imposing the restitution fine. (Tillman, supra, 22 Cal.4th at pp. 302-303.) Thus, the trial court can decline to impose a restitution fine (Pen. Code, §1202.4),and the corresponding parole revocation restitution fine (Pen. Code, § 1202.45). A corresponding parole revocation restitution fine in the same amount is mandatory only if the restitution fine is imposed. (Smith, supra, 24 Cal.4th 849.) Here, the trial court did not impose those fines and the People did not object. In fact, the prosecutor specifically stated, "[n]o restitution." Following Tillman, we will not modify the judgment to include those fines. Thus, the $200 restitution fine and the $200 parole revocation restitution fine must be stricken from the minute order and abstract of judgment.

The same result does not apply to the court security fee and the criminal conviction assessment fee. The omission of mandatory fines or fees may be corrected at any time because the failure to impose a mandatory fine or fee constitutes an unlawful sentence. (See Smith, supra, 24 Cal.4th at p. 853.) The court security fee and the criminal conviction assessment fee are required. (Pen. Code, § 1465.8; Gov. Code, § 70373; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112; see People v. Crittle (2007) 154 Cal.App.4th 368, 371.) We will modify the oral pronouncement of judgment to include these fees.

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

DISPOSITION

The judgment is modified to provide for a $40 court security fee (Pen. Code, § 1465.8) and a $30 criminal conviction assessment fee (Gov. Code, § 70373). The minute order and abstract already reflect the court security fee and the criminal conviction assessment fee. The minute order and abstract of judgment must be corrected, however, to delete the $200 restitution fine (Pen. Code, § 1202.4) and the $200 parole revocation restitution fine (Pen. Code, § 1202.45). The trial court is directed to prepare a corrected minute order and abstract of judgment, deleting the restitution fine and parole revocation restitution fine and to forward a certified copy to the Department of Corrections and Rehabilitation. (Pen. Code, § 1170, subd. (a)(3).) As modified, the judgment is affirmed.

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


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