Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC807808
RUSHING, P.J.
I. Statement of the Case
Defendant Rafael Torres pleaded no contest to first degree burglary, first degree robbery in concert with two other people, aggravated assault, and mayhem. He also admitted that during both the burglary and robbery he personally used a deadly weapon and that during the burglary someone other than an accomplice was present. (Pen. Code, §§ 459, 460, subd. (a), 213, subd. (a)(1)(A), 245, subd. (a)(1), 203, 12022, subd. (b)(1), 667.5, subd. (c)(21).) The court imposed an eight-year prison term as follows: a six-year term for the robbery plus a one-year deadly-weapon enhancement; a consecutive one-year term for the assault; a concurrent four-year term for mayhem; and a four-year term plus a one-year deadly-weapon enhancement for the burglary, which the court stayed under section 654. Among other things, the court imposed matching restitution and parole revocation fines of $6,400.00, suspending the parole revocation fine pending successful completion of parole. (§§ 1202.4, 1202.45.)
All subsequent unspecified statutory references are to the Penal Code.
On appeal, defendant claims he must be permitted to withdraw his plea because he was not given critical discovery about the victim until after he entered the plea. He also claims the court miscalculated the restitution and parole revocation fines.
We modify the amount of the fines and affirm the judgment as modified.
II. Facts
Given the plea and the issues raised on appeal, we need only briefly summarize facts concerning defendant’s offenses. On June 3, 2008, defendant, accompanied by two cohorts and wielding a knife, forcibly entered the residence of Randy Gonzalez and his sister Rosemary Hernandez. The invaders physically attacked, beat, stabbed, and slashed Gonzalez; they assaulted Hernandez; and they took her purse.
III. Withdrawal of Plea
Defendant notes that the prosecution did not release information that Gonzalez “had been involved in an act of ‘moral turpitude’ in which a firearm was used” until six months after defendant entered his no-contest plea. Because he lacked this vital discovery, he asserts that he entered his plea “under a cloud of mistake and ignorance, ” which rendered it unknowing, unintelligent, and involuntary. Accordingly, he contends that he must be allowed to withdraw it.
Clearly defendant’s claim challenges the validity of his plea, and, therefore, he was required to obtain a certificate of probable cause in order to raise it. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1094-1095; People v. Panizzon (1996) 13 Cal.4th 68, 76.) Defendant did apply for a certificate, but the court denied the request. Accordingly, we decline to address this claim.
Citing People v. Holland (1978) 23 Cal.3d 77, defendant argues that he may raise his claim without a formal certificate because the trial court “certified all the clerk’s and reporter’s transcripts necessary for this court to address the merits in this case.” We disagree.
In People v. Holland, supra, 23 Cal.3d 77, the court stated that if a certificate is required, the failure to formally issue one precludes appellate review. However, where the court has, in effect, implicitly certified the appeal by its conduct or statements, review is proper and appropriate. For example, the court opined that review would be proper even without a formal certificate, where (1) the clerk prepares and the court certified a record on appeal; and (2) it would have been an abuse of discretion to deny a certificate. (Id. at pp. 84-85.)
We doubt that Holland has any continued validity in light of People v. Mendez, supra, 19 Cal.4th 1084, where the court warned against ad hoc dispensations from the unambiguous statutory language of section 1237.5 and, citing Holland and other cases, expressly warned against relaxing the certificate requirement for the ostensible purpose of judicial economy. On the contrary, the court opined that it was the application of section 1237.5 in a “strict manner” that truly promoted judicial economy in the appellate system. (Id. at pp. 1097-1098, fns. 7 & 9.)
In any event, Holland is inapposite. Given the trial court’s express denial of defendant’s request for a certificate to challenge the validity of his plea, one cannot reasonably infer a contrary intent from the mere certification of the record on appeal, especially where, as here, defendant raises a claim that is cognizable without a certificate.
IV. Fines
Defendant contends that the court erroneously calculated the amount of the matching restitution and parole revocation fines. The Attorney General concedes that the amount of the fines must be reduced. We agree.
In calculating the fines, the court employed the statutory formula in section 1202.4, subdivision (b)(2), under which the fines are “the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to served, multiplied by the number of felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).) Specifically, the court multiplied the eight-year term by $200 and then multiplied that product by the four felony convictions.
However, where, as here, the court stays the sentence on one felony count under section 654, it may not use the stayed count in calculating the fine under the statutory formula. (People v. Le (2006) 136 Cal.App.4th 925, 934.)
Thus, as defendant and the Attorney General agree, the fines in this case should have been only $4,800-i.e., eight times $200 times three felony convictions.
V. Disposition
The matching restitution and parole revocation fines imposed under section 1202.4 and 1202.45 are reduced from $6,400 each to $4,800 each. As modified, the judgment is affirmed. The Clerk of the Santa Clara County Superior Court is directed to prepare a corrected abstract of judgment that reflects the reduction in the amount of the fines.
WE CONCUR: PREMO, J.DUFFY, J.