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People v. Valenzuela

California Court of Appeals, Sixth District

October 3, 2013

THE PEOPLE, Plaintiff and Respondent,
JACOB ANTHONY VALENZUELA, Defendant and Appellant.

Santa Clara County Superior Court Superior Court Case No. CC818758 Hon. Rise Jones Pichon

Attorneys for Plaintiff/Respondent: The People Allan Yannow Office of the Attorney General.

Attorneys for Defendant/Appellant: Jacob Anthony Valenzuela Thomas M. Singman.

Grover, J.

I. introduction

A variety of fines, fees, assessments, and penalties may or must be imposed on a criminal defendant upon conviction. This appeal involves one of them, the $10 crime prevention fine mandated by Penal Code section 1202.5[1] on conviction of specified offenses if a trial court determines the defendant is able to pay it.

An information charged defendant Jacob Anthony Valenzuela and two codefendants, Richard Anthony Gonzales and Jonathan Lorenzo Dena, with robbing Abhey Sharma of his car keys and wallet (count 4; § 211), carjacking his rental car (count 3; § 215), kidnapping him during the carjacking (count 2; § 209.5), and attempting to murder him (count 1; §§ 187, 664). The information further alleged personal use of a handgun and infliction of great bodily injury by some of the defendants. (§ 12022.53.)

Pursuant to a plea bargain, the information was amended to allege that defendant personally used a handgun during the robbery and carjacking. Two counts were also added charging defendant with simple kidnapping (count 5; § 207) and assault with a deadly weapon (count 6; § 245, subd. (a)(1)) involving personal use of a handgun (§§ 12022.5, subd. (a)(1), 12022.53). The court advised defendant during the change of plea hearing that the sentencing judge may impose fines of “up to $40, 000” plus penalty assessments and that certain fines and fees are required by law, including $30 per count for court operations, $30 per count for a criminal conviction assessment, and a criminal justice administration (or “booking”) fee of $129.75, subject to defendant’s ability to pay. In exchange for a sentence of 24 years, defendant pleaded no contest to four counts, carjacking, robbery, kidnapping, and assault with a deadly weapon, and admitted that each crime involved his personal use of a handgun.

In addition to a 24-year prison sentence, the probation report recommended ordering defendant to pay victim restitution in an amount to be determined, a maximum restitution fine of $10, 000 under section 1202.4, an equivalent parole revocation fine under section 1202.45, $120 in court security fees under section 1465.8, $120 in criminal conviction assessments under Government Code section 70373, the $129.75 booking fee under Government Code sections 29550 through 29550.2, and a $10 fine plus penalty assessment under section 1202.5. At sentencing, the court imposed the recommended sentence, including the fines, fees, and assessments with “a 10-dollar fine plus penalty assessment pursuant to Penal Code section 1202.5, ” but waived the $129.75 booking fee. According to the abstract of judgment, the penalty assessment on a $10 base fine is an additional $28.

On appeal, defendant’s only contention is that the $10 fine and associated $28 penalty should not have been imposed under section 1202.5 without either a finding or evidence of his ability to pay.[2] For the reasons stated here, we will affirm the judgment after concluding that defendant has forfeited these arguments by not making them in the trial court and that his trial counsel was not ineffective for failing to do so.

II. the underlying crimes

As the nature of the crimes is not strictly relevant to the issues on appeal, we describe them only briefly. Evidence was presented at the preliminary examination that defendants Jacob Valenzuela and Richard Gonzales, both then 18 years old, obtained the cell phone of a stranger, Abhey Sharma, by asking to borrow the phone while he was using it outside his residence in San Jose. After he voluntarily handed over the phone, both defendants pulled out handguns and asked Sharma what was in his pockets. When he produced keys to a rental car and said he might have money in the car, Gonzales got into the back seat with Sharma and told Valenzuela where to drive.

As they drove, Gonzales told Sharma to keep his head down and threatened more than once to “pop” him on the spot when Sharma tried to observe his location. Gonzales used Sharma’s phone to call Jonathan Dena, then 16 years old (and prosecuted as an adult). Gonzales directed defendant to a corner where they picked up Dena and then drove into the hills of San Jose. After the car stopped in a deserted area, Sharma complied with Gonzales’s directions to get out, put his hands on his head, and walk up an embankment. Gonzales followed him, still holding a gun. Sharma pleaded for his life, saying he had a disabled son. Gonzales said, “ ‘you don’t know me bitch, I’m a butcher and I’m going to waste you.’ ”

Gonzales touched the gun to the back of Sharma’s head. Sharma recalled seeing two flashes and hearing two bangs. When he turned around after the second flash, the teenagers and the rental car were gone. Sharma was treated at a hospital that night for a five-inch laceration above his left eye and two small puncture ...

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