California Court of Appeals, Second District, Fifth Division
[As Modified on Denial of Rehearing
2/14/2020]
[257
Cal.Rptr.3d 527] APPEAL from a judgment of the Superior Court
of Los Angeles County, James R. Dabney, Judge. Affirmed in
part and reversed in part. (Los Angeles County Super. Ct. No.
BA471975)
Page 366
COUNSEL
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.
OPINION
RUBIN,
P. J.
Page 367
Appellant Edwin Villatoro appeals from the trial courts
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 prosecutors silence at the
proceedings implied the prosecutors "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
courts order is reversed.
FACTUAL AND PROCEDURAL BACKGROUND
Villatoro
was charged and pled no contest to assault (§ 245, subd.
(a)(4)). The [257 Cal.Rptr.3d 528] court accepted Villatoros
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: "Its going to be a $100
fine if you dont sign this form" and then set a
"nonappearance date" for a "Prop. 63
report."[2]
At the
subsequent hearing, the following exchange occurred between
Villatoros counsel and the trial ...