Opinion
F075155
02-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS BARRIGA, Defendant and Appellant.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 4004060 & 4004059)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Meehan, J.
-ooOoo-
Appointed counsel for defendant Juan Carlos Barriga asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with a supplemental brief, in which he contends the trial court erred in imposing a $40 court operations assessment (Pen. Code, § 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373) in case No. 4004060 because he was convicted before the effective dates of the statutes imposing the assessments. The People concede and we agree.
All statutory references are to the Penal Code unless otherwise noted.
This case was originally numbered 214326.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On November 7, 1990, defendant pled guilty to assault with intent to commit rape (§ 220) in case No. 4004060. Prior to sentencing, defendant escaped from custody at the honor farm. On December 21, 1990, defendant was charged with felony escape (§ 4532, subd. (b)) in case No. 4004059.
This case was originally numbered 217746.
Over 25 years later, on August 21, 2016, defendant was arrested. On November 10, 2016, the trial court denied defendant's motion to withdraw his 1990 guilty plea in case No. 4004060. On December 8, 2016, defendant pled no contest to escape in case No. 4004059. On December 15, 2016, the trial court sentenced him to two years in case No. 4004060 and eight months in case No. 4004059, and imposed various fines and fees, including a court operations assessment (§ 1465.8) and a court facilities assessment (Gov. Code, § 70373) in both cases.
Defendant pled "Guilty" on the record. The minute order says "Nolo Contendere." --------
On February 15, 2017, defendant filed a notice of appeal. His request for certificate of probable cause was granted.
The effective date of section 1465.8 was August 17, 2003, and the effective date of Government Code section 70373 was January 1, 2009. The parties agree that People v. Davis (2010) 185 Cal.App.4th 998 at pages 1000 through 1001 held that the Government Code section 70373 assessment may not be imposed in a case where the defendant was convicted prior to the statute's effective date; they also agree that, by extension, the same rule applies to section 1465.8 assessments. Accordingly, we will strike the assessments in case No. 4004060 (but not in case No. 4004059).
Having reviewed the entire record, we see no other arguable issues on appeal.
DISPOSITION
The $40 Penal Code section 1465.8 assessment and the $30 Government Code section 70373 assessment imposed in case No. 4004060 are stricken. In all other respects, the judgment is affirmed. The trial court is instructed to prepare an amended abstract of judgment and forward a certified copy to the appropriate authorities.