Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. SWF016222 Michael S. Hider, Judge. (Retired judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
FACTS AND PROCEDURAL HISTORY
On April 20, 2006, the victim took her three young children, ages 12, 7, and 6, to Sharkey’s Pizza in Hemet for supper. As the four were leaving the restaurant, defendant Francis Daeng Dewitt, Jr., approached the victim and asked for money. When she replied that she had none, defendant pulled out a gun and demanded, “Give me the money.” The victim hurried her children to their car and drove away. The victim was so frightened that she drove the wrong way up a one-way street. Eventually she pulled off to the side of the road and called 911. Police arrested defendant about two blocks away from Sharkey’s Pizza and the victim identified him as the person who had attempted to rob her.
On December 28, 2006, a jury convicted defendant of one count of attempted robbery. (Pen. Code, §§ 211, 664.) On January 25, 2007, the court placed defendant on probation with terms and conditions that included, as term No. 3, a requirement that he pay a penalty assessment fee of $52.60 pursuant to the provisions of section 1202.5. At the time of sentencing, the court asked defendant if he had reviewed the terms and conditions of probation with his attorney, if he understood each and every term, if he had any questions about or objected to any of the terms, and whether he agreed to be bound by them. Defendant replied that he had gone over all the terms with his attorney and that he understood and agreed to be bound by all of them. Neither he nor his attorney objected to any term.
All further statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
Defendant argues that the $52.60 fee and penalty assessment in term No. 3 of his probation agreement is an “unauthorized sentence” because the offense of which he was convicted is not referenced in the statute that authorizes the penalty. The People reply only that defendant’s failure to object below to the probation term he now disputes requires us to dismiss his claim.
The People are correct that a defendant’s failure to object to an erroneous ruling in the trial court ordinarily forfeits the right to raise the claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354; In re S.B. (2004) 32 Cal.4th 1287, 1293.) As has long been established, the purpose of the rule is to encourage parties to bring errors to the attention of the trial court so that they may be corrected at the time they are made, rather than to remain silent in hopes of prevailing on appeal. (Sommer v. Martin (1921) 55 Cal.App. 603, 610; In re S.B., supra, at p. 1293.) But defendant is also correct that an “unauthorized” sentence, or a sentence entered in excess of jurisdiction, constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott, supra, at p. 354.)
Section 1202.5 provides for the imposition of an additional fine when a defendant is convicted of certain theft crimes, including “offenses enumerated in Section[s] 211, 215, 459, 470, 484, 487, 488, or 594.” (§ 1202.5, subd. (a).) As defendant argues and the People concede, attempted crimes are not among the offenses for which the additional fine may be imposed. Since defendant was convicted of an attempted crime, not one of the completed crimes listed in section 1202.5, imposition of the fine in term No. 3 of his probation agreement was unauthorized. As such, it is an error we can review and correct, despite the fact that defendant failed to object to it in the trial court. (People v. Smith, supra, 24 Cal.4th at p. 852.)
DISPOSITION
The judgment is modified to strike the fine imposed in term No. 3 of defendant’s probation agreement. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., GAUT, J.