California Court of Appeals, Second District, Fifth Division
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
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
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. 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.
AND PROCEDURAL BACKGROUND
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 (§
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
subsequent hearing, the following exchange occurred between
Villatoro's counsel and the trial court, Villatoro not
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.
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.
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.
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.”
defense counsel made an argument, the court found that
Villatoro had failed to complete the Prohibited Persons
Relinquishment Form as ...