Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super.Ct.No. 210960
Duffy, J.
Two defendants in this multi-defendant gang case appeal from their judgments of conviction. We address each defendant’s appeal in turn.
I. Arthur Hernandez
Defendant Arthur Hernandez pleaded guilty to conspiracy (Pen. Code, § 182, subd. (a)(1)) to possess a controlled substance for sale (see Health & Saf. Code, § 11378), unlawfully possessing an assault weapon (§ 12280, subd. (b)), being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1)), possessing a prohibited weapon (§ 12020, subd. (a)(1)), and receiving stolen property (§ 496, subd. (a)). The offenses occurred in 2004 and/or 2005. Hernandez admitted a number of enhancement allegations. He was sentenced to 15 years in prison. The court granted Hernandez’s request for a certificate of probable cause (§ 1237.5).
Further statutory references are to the Penal Code unless otherwise specified.
We will modify the judgment against Hernandez and, as modified, affirm it.
A. Facts And Procedural Background
There is no probation report on Hernandez and we derive the facts from other court papers. Hernandez was in charge of storing weapons for his gang. He kept them in his uncle’s garage. Authorities found methamphetamine and items related to commerce in drugs at the homes of two other gang members. They also found weapons and ammunition at the home of one of those two other gang members.
The trial court informed Hernandez at the taking of his plea that it would impose a restitution fund fine of between $200 and $10,000 and a drug program fee of $150 plus a penalty assessment. At the court session for pronouncement of judgment and sentencing, however, the court did not announce the imposition of either sanction. Nevertheless, the superior court’s minute order and abstract of judgment state that Hernandez must pay $10,000 as a restitution fund fine and a drug program fee of $150 with a penalty assessment of $337.50.
B. Discussion
First, Hernandez claims that because the trial court failed to impose a restitution fine at its session for pronouncement of judgment and sentencing, the fine should be reduced to the statutory minimum. We agree. It is the oral pronouncement of judgment that determines the sentence. (People v. Mesa (1975) 14 Cal.3d 466, 471.) A judgment includes the applicable fines. (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) The People urge us to remand the matter to the court below to set the restitution amount. (See People v. Rowland (1988) 206 Cal.App.3d 119, 125-126, 128.) We prefer, however, to follow the procedure approved in People v. Walker (1991) 54 Cal.3d 1013. There, the court discussed another case in which “[r]ather than remand for the trial court to determine the appropriate fine between $100 and $10,000—a remedy described as ‘judicially uneconomical’—the appellate court itself imposed the $100 minimum. [Citations.] The same should be done here.” (Id. at p. 1029.) Although Walker discussed the judicial diseconomies involved in undoing a plea bargain, whereas here the plea bargain contemplated a restitution fine and Hernandez agreed to pay one, we perceive similarly excessive expenditures of time and money here in returning the case to the court below to set the exact amount.
When a superior court orders a restitution fund fine above the statutory minimum of $200 for a felony conviction (§ 1202.4, subd. (b)(1)), it must consider all relevant factors, including the defendant’s inability to pay (a factor that may include the defendant’s future earning capacity); the seriousness of the offense and the circumstances of its commission; the defendant’s economic gain, if any; the extent to which anyone else suffered pecuniary or intangible losses; and the number of victims. (id., subd. (d).) Having considered these factors, the court may then use a statutory formula to calculate the amount of the fine. The formula involves multiplying $200 by first the number of years of imprisonment and then the number of felony counts. (id., subd. (b)(2).)
Hernandez was sentenced to 15 years in prison. The Legislature has found, with respect to a criminal defendant’s obligation to pay attorney fees, that “[u]nless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.” (§ 987.8, subd. (g)(2)(B).) For purposes of paying a restitution fund fine, it is equally questionable that Hernandez can pay $10,000 or a lesser amount above the statutory minimum; moreover, even if he can pay a sum higher than the statutory minimum, the cost to the public of remanding this case for the trial court to set the amount of the restitution fund fine according to the formula described above, after investigating Hernandez’s financial situation, receiving the parties’ briefing, and hearing the parties’ arguments, could well approach the statutory maximum or even exceed it. And after all of that effort, the superior court might impose the minimum fine of $200 anyway. For reasons of judicial economy we will impose a restitution fund fine of that amount.
For the reasons stated, we will direct the trial court to have the abstract of judgment modified to eliminate the $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) and $337.50 penalty assessment. It would not be economical to remand the case to determine whether that fee should be imposed. There is no statutory minimum for this fee; rather, imposing it depends on a defendant’s ability to pay it. (Id., subd. (b).) It conserves taxpayers’ money not to require the parties to dispute, in new court proceedings, Hernandez’s ability to pay $487.50.
II. Eric Zarate
Defendant Eric Zarate pleaded no contest to conspiracy (§ 182, subd. (a)(1)) to possess a controlled substance for sale (see Health & Saf. Code, § 11378), unlawfully possessing an assault weapon (§ 12280, subd. (b)), and being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1)). The crimes occurred in 2004 and/or 2005. Zarate admitted a number of enhancement allegations. He was sentenced to 12 years and four months in state prison.
Counsel for Zarate has filed an opening brief that states the case and facts but raises no issues. We notified Zarate of his right to submit written argument on his own behalf. We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436. We will affirm the judgment against Zarate.
A. Facts
On December 20, 2004, as part of an investigation into possible gang activity, Zarate was arrested on suspicion of violating his parole. Police officers from Campbell and San Jose then conducted a search of Zarate’s residence and found a usable quantity of methamphetamine, a scale with methamphetamine residue, and paperwork related to drug commerce in the residence’s interior. They found three guns, including an assault rifle, in the garage.
B. Discussion
Zarate did not exercise his right to submit written argument on his own behalf. Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
DISPOSITION
The judgment against Arthur Hernandez is modified to impose a restitution fine of $200 under Penal Code section 1202.4, subdivision (b)(1). The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the Department of Corrections. As modified, the judgment against Hernandez is affirmed.
The judgment against Eric Zarate is affirmed.
WE CONCUR. Mihara, Acting P. J., McAdams, J.