Opinion
C082416
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. KRISHNEEL CHAUHAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFE20130009341, SF126406A)
Appointed counsel for defendant Krishneel Chauhan asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Having reviewed the record, we will affirm the judgment and direct the trial court to correct the abstract of judgment by deleting a $30 surcharge.
I
Defendant fired a gun multiple times into an apartment when four people were inside. One person was shot in the chest.
Defendant pleaded no contest to two counts of second degree attempted murder (Pen. Code, §§ 187, 664) and admitted personally using a firearm (Pen. Code, § 12022.53, subd. (b)). The remaining counts were dismissed; the counts pertaining to the other two victims were dismissed with a Harvey waiver for purposes of restitution.
See People v. Harvey (1979) 25 Cal.3d 754. --------
The trial court imposed a stipulated 15-year aggregate term: the low term of five years for both counts of second degree attempted murder, to run concurrently, and a 10-year enhancement for using a firearm. The trial court awarded 1012 days of presentence credit (880 actual days and 132 conduct days) and ordered defendant to pay various fines and fees, including "[a]ny applicable penalty assessments and criminal surcharges . . . assessed on the appropriate fines and fees pursuant to Penal Code Section 1464 and 1465.7." The abstract of judgment includes a "$30 surcharge."
Defendant did not request a certificate of probable cause.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.
Having examined the record, one error requires correction. The abstract of judgment includes a $30 surcharge, and although the trial court ordered, among other things, "[a]ny applicable penalty assessments and criminal surcharges . . . assessed on the appropriate fines and fees pursuant to Penal Code Section 1464 and 1465.7," neither Penal Code section 1464 nor Penal Code section 1465.7 authorize a $30 surcharge in this case. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372 [Pen. Code, §§ 1464, subd. (a)(3)(A) and 1465.7, subd. (a) do not apply to restitution fines].) Penal Code section 1202.4, subdivision (l) would authorize such a surcharge, but the trial court did not refer to that section, nor did it specify a surcharge amount. (See Pen. Code, § 1202.4, subd. (l).) Thus, because the $30 surcharge was not orally imposed, we will direct the trial court to correct the abstract of judgment by deleting the $30 surcharge. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [the abstract must accurately summarize the oral pronouncement, including all fines and fees].)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment deleting the $30 surcharge and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
NICHOLSON, Acting P. J. /S/_________
DUARTE, J.