Opinion
H036073
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BRADY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS101108)
Defendant Michael Brady appeals a judgment entered following his no contest plea to assault with intent to commit rape (Pen. Code, § 220, subd. (a)). On appeal he asserts the trial court erred in ordering a $1,200 fine pursuant to section 290.3, because it did not specify the basis of the penalty assessments. Defendant asks that the matter be remanded for the trial court to provide explanation of the $1,200 amount.
All further unspecified statutory references are to the Penal Code.
STATEMENT OF THE CASE
The underlying facts of this case are not relevant to the issues on appeal.
In May 2010, as the result of an attack on a 15-year-old relative, defendant was charged with assault with intent to commit rape (§ 220, subd. (a)), corporal injury on a child (§ 273d, subd. (a)), attempted forcible rape (§§ 664, 261, subd. (a)(2)), lewd act upon a child by a defendant at least 10 years older (§ 288, subd. (c)(1), and child endangerment (§ 273a, subd. (a)).
Defendant entered a plea of no contest to assault with intent to commit rape, and the remaining charges were dismissed. Defendant was sentenced to six years in state prison. The court ordered that defendant pay a fine pursuant to section 290.3 in the amount of $1,200.
DISCUSSION
Defendant asserts the trial court erred in imposing a $1,200 fine pursuant to section 290.3. He asserts the court should have specified the basis of the penalty assessments, clarifying how it arrived at the $1,200 amount.
"Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Pen. Code, § 290.3, subd. (a).)
Defendant pleaded no contest to one offense specified in subdivision (c) of section 290, assault with intent to commit rape. (§ 220, subd. (a).) Therefore,under section 290, subdivision (c), the fine was properly imposed in this case.
At the sentencing hearing, the court stated: "You know, that fine of $1200 is the minimum fine. It's not even—it's so big it's not even on our chart. It is subject to all the penalties. And so—I see. We'll just leave it at 1200. Pay the $1,200 fine pursuant to 290.3." The fine mandated by section 290.3 is $300. Here, the court did not explain the basis of the $900 amount of penalty assessments imposed.
The Attorney General asserts that the basis for the full amount of the $1,200 fine may be found in the record. Defendant's section 290.3 $300 was subject to the following assessments: $5 for each $10 of fine under Government Code section 70372; $7 for each $10 of fine under former Government Code section 76000; $10 for each $10 of fine under section 1464; 10 percent pursuant to Government Code section 76104.6; 20 percent pursuant to Government Code section 76000.5, subdivision (a)(1); 30 percent pursuant to Government Code section 76104.7; 20 percent of the fine under Penal Code section 1465.7. Thus, the assessments themselves add up to an additional 300 percent added to the section 290.3 fine of $300, making the total fine $1,200.
The statutes cited above account for all the penalty assessments that would make up the total fine of $1,200 ordered in this case. However, a few of the code sections authorize the imposition of the assessment, or provide for a reduction in assessments depending on local county ordinances. For example, former Government Code section 76000, subdivision (a)(1) provides for an assessment of $7 for every $10; however, for the County of Monterey, that amount is subject to reduction to $5 for every $10 of the fine imposed, so long as the county's board of supervisors has established a Courthouse Construction Fund. (Former Gov. Code, § 76000, subd. (e)). The record does not contain evidence that Monterey County established a Courthouse Construction Fund.
Former Government Code sections 76000, subdivision (a)(1) and 70372, subdivision (a)(1) are to be reduced if the county has adopted a courthouse construction fund. Government Code section 76000.5, subdivision (a)(1) provides for a penalty assessment only of the county has adopted an ordinance allowing is imposition.
The Attorney General requested that this court take judicial notice of "Frequently Asked Questions" produced by the Administrative Office of the Courts to inform county administrators about the status of local courthouse construction funds. This court denied the request.
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The record before us does not permit us to evaluate whether the trial court's imposition of $1,200 in section 290.3 fines was proper considering Monterey County local ordinances. A remand is the appropriate remedy to allow the court to reconsider this issue and clearly state the legal basis of the assessments in this case. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249.)
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with instructions to reconsider the penalty assessments for the section 290.3 fine, and state the basis for the assessments on the record.
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RUSHING, P.J.
WE CONCUR:
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PREMO, J.
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ELIA, J.