People v. Villatoro

          APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA471975 James R. Dabney, Judge. Affirmed in part and reversed in part.

          Ricardo D. Garcia, Public Defender, Albert J. Menaster, Dana Branen, and Nick Stewart-Oaten, Deputy Public Defenders, for Defendant and Appellant

          Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Michael C. Keller and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

          RUBIN, P. J.

         Appellant Edwin Villatoro appeals from the trial court's order imposing a $100 fine under Penal Code section 29810 for failure to complete a firearms disclosure form.^[1] Section 29810 provides that the failure to timely file a completed firearms disclosure form “shall constitute an infraction punishable by a fine not exceeding one hundred dollars ($100).” (§ 29810, subd. (c)(5).) Villatoro contends the $100 fine is unauthorized by law in this case because the prosecutor never charged him with an infraction in violation of section 29810. The Attorney General takes the position that the trial court properly charged and convicted Villatoro of the infraction because the prosecutor's silence at the proceedings implied the prosecutor's “concurrence and approval.” Given that the statutory procedures for prosecuting an infraction were not followed here, we conclude the trial court had no authority to impose punishment for committing an infraction under these circumstances. The trial court's order is reversed.

         FACTUAL AND PROCEDURAL BACKGROUND

         Villatoro was charged and pled no contest to assault (§ 245, subd. (a)(4)). The court accepted Villatoro's plea and placed him on three years of formal probation. At the sentencing hearing, the court imposed a $30 conviction assessment (Gov. Code, § 70373), a $40 operations assessment (§ 1465.8), a $300 restitution fine (§ 1202.4), and imposed and stayed a $300 parole revocation restitution fine (§ 1202.45).

         Villatoro declined to complete the Prohibited Persons Relinquishment Form, invoking his Fifth Amendment right against self-incrimination. The court declined to “uphold[] the privilege” because Villatoro had no prior convictions. The court informed Villatoro: “It's going to be a $100 fine if you don't sign this form” and then set a “nonappearance date” for a “Prop. 63 report.”^[2]

         At the subsequent hearing, the following exchange occurred between Villatoro's counsel and the trial court, Villatoro not being present:

         “[Counsel]: Your Honor, if the court's going to [] set the fine, he has a right to an infraction and our office is taking it up.

         [Court]: What? You should have had him come in.... I told you at the time of the agreement I was going to do this when I sentenced him. He waived his appearance.

         [Counsel]: I didn't want my client to sign a form that's going to be seen by the federal government when he faces collateral consequences of his plea.

         [Court]: Great. Excellent. He has no record. I said that at the time of the agreement that I was going to impose the fine because he had no record. So this is his infraction hearing. We can do it right now. Go ahead.”

         After defense counsel made an argument, the court found that Villatoro had failed to complete the Prohibited Persons Relinquishment Form as ...