Opinion
F053708
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. SCOTT WAYNE FREDERICK, Defendant and Appellant.
Cannon & Harris, Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Mark A. Johnson and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Scott Wayne Frederick pleaded no contest to driving under the influence of alcohol and admitted to five prior convictions of the same offense. The court sentenced him to 16 months in prison under a plea agreement. On appeal, he makes several claims the validity of which the People concede: Two $100 penalty assessments were imposed erroneously; a $78 penalty imposed for DNA testing should be reduced to $39; and the abstract of judgment shows the wrong number of days of presentence custody credit. We direct the trial court to make the necessary changes in the judgment. Further, as a result of a clerical error, the abstract of judgment states that defendants driving privilege is revoked for two years. In fact, the court imposed a four-year revocation, the period mandated by the Vehicle Code. We order the trial court to correct this error.
Defendant also claims the court erred when it added $10 to the amount assessed against him by applying the 20 percent surcharge set out in Penal Code section 1465.7 to the $50 alcohol-abuse penalty imposed under Vehicle Code section 23645, subdivision (a). We disagree.
Finally, defendant asserts that the abstract of judgment includes the $20 court security fee within a subtotal in which it does not belong. He does not claim he is harmed in any way by this, however, so we order no correction.
In his briefs, defendant argued that the court erred when it denied his motion to dismiss pursuant to Penal Code section 1381. In a request filed in this court on May 28, 2008, defendant stated that he wished to withdraw this argument. On May 29, 2008, we acknowledged the withdrawal in a letter to counsel. As a result, we will not address the argument.
FACTUAL AND PROCEDURAL HISTORIES
No trial having occurred, we draw the facts from the probation officers report. A California Highway Patrol officer saw defendant driving on State Route 41 in Madera County on June 24, 2006. Defendants car had an expired registration sticker. Before the officer had a chance to switch on his flashing lights, defendant suddenly pulled over. The officer parked behind and approached. The smell of alcohol came from defendants car window and the officer saw an open beer bottle on the floor between the feet of defendants passenger and another on the seat beside defendant. At the officers request, defendant climbed unsteadily out of the car and explained in slurred words that he had no drivers license, was on parole, and had been drinking all day. His eyes were red and watery and he smelled of alcohol. The officer arrested him. A breath test revealed a blood alcohol level of .22 to .24 percent. Department of Motor Vehicles records showed that defendant had five prior convictions for driving under the influence in the previous 10 years and that his license currently was suspended for driving under the influence.
The district attorney filed an information on June 14, 2007, alleging six counts: driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); driving with a blood alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b)); driving with a license suspended or revoked for driving under the influence (Veh. Code, § 14601.2, subd. (a)); driving with a license suspended or revoked for driving with a blood alcohol level .08 percent or more or for refusing to submit to an officers reasonable request for a drug or alcohol test (Veh. Code, § 14601.5, subd. (a)); driving with an open alcoholic beverage container (Veh. Code, § 23222, subd. (a)); and driving a car with an expired registration (Veh. Code, § 4000, subd. (a)). For sentencing purposes, the information further alleged that defendants blood alcohol level was .15 percent or higher, that he had been convicted of five prior violations of Vehicle Code section 23152, subdivision (a), within the previous 10 years, and that he had served a prior prison term.
Defendant entered a plea of no contest to count one on August 6, 2007, and admitted the five prior convictions. The remaining counts and allegations were dismissed. Pursuant to the plea agreement, the court imposed the lower term of 16 months imprisonment. It suspended his drivers license for four years after his release from prison and designated him a habitual traffic offender for a period of three years.
The court also imposed several fines, penalties, and assessments, which form the basis of most of the issues in this appeal. In some instances, the basis of the amounts imposed is not clear. The court set out the amounts orally at the sentencing hearing:
"The Courts imposing a $300 restitution fine under 1202.4(b) of the Penal Code, which includes the $200 base fine, the $100 penalty assessment for Court Facilities. A $300 restitution fine is imposed and suspended pending any future parole revocation. Thats the $200 base fine and $ 100 court facilities fund penalty pursuant to 1202.45 suspended pending any parole violation.
"The alcohol abuse assessment under 23645(a) is imposed of $ 175, which includes the $50 base fine, the $50 State penalty, the $5 DNA assessment, the $35 County penalty, the $25 Court Facilities Fund penalty and the $10 surcharge.
"And Im at a loss on this one how they came up with that amount of money. Im not going to impose that. Unless its mandated. No, its not mandated.
"So, its—the fine is going to be 1424 under 23550(a) of the Vehicle Code which includes the $390 base fine, the $390 State penalty, the $273 County penalty. The DNA is 78. The Court Facilities Fund penalty is 195. The surcharge is 78. Court facilities—the Court securitys 20 bucks.
"So according to my notes its 390, 390, 273, 195 for facilities, 78 for DNA, 78 for surcharge, $20 Court security for 1424."
In the abstract of judgment, the amounts are listed this way:
"FINANCIAL OBLIGATIONS (including any applicable penalty assessments):
" $300.00 restitution fine PC1202.4(b) plus 10% adm. Fee $ 300.00 restitution fine, suspended per PC1202.45. $ 1,424.00 fine per VC23550(a), including $390.00 Base Fine, $390.00 State Penalty Assessment—PC1464, $ 78.00 State Penalty Assessment per GC76104.6 (DNA), $273.00 County Penalty Assessment—GC76000, $195.00 State Court Facilities Construction Fund Penalty—GC70372(a), $ 78.00 Surcharge per PC1465.7, $20.00 Court Security Fee per PC1465.8(a). $175.00 Assessment per VC23645(a), including, $50.00 Base Fine, $50.00 State Penalty Assessment—PC1464, $ 5.00 State Penalty Assessment per GC76104.6 (DNA), $35.00 County Penalty Assessment—GC76000, $25.00 State Court Facilities Construction Fund Penalty—GC70372(a), $ 10.00 Surcharge per PC1465.7"
DISCUSSION
I. Government Code section 70372 penalty assessments
The parties agree that the court arrived at the figure of $ 300 each for the restitution fine (Pen. Code, § 1202.4, subd. (b)) and parole revocation fine (Pen. Code, § 1202.45) by starting with the $200 minimum set forth in Penal Code section 1202.4, subdivision (b)(1), and adding a $100 penalty assessment pursuant to Government Code section 70372. The courts oral statement and the statement in the abstract of judgment differ on this point, but it is clear from the oral statement that the court calculated the two $300 figures in the manner the parties describe.
To pay for court construction, Government Code section 70372 levies a penalty of $5 for every $10 in other fines or penalties imposed for criminal offenses. This court construction penalty does not apply, however, to "[a]ny restitution fine." (Gov. Code, § 70372, subd. (a)(3)(A).) As defendant argues and the People concede, this means it should not have been added to the Penal Code section 1202.4, subdivision (b), restitution fine or to the Penal Code section 1202.45 parole revocation fine (which must be equal to the restitution fine). We direct the trial court to strike the $100 penalty levied against the restitution fine and the $100 penalty levied against the parole revocation fine under Government Code section 70372.
II. DNA testing penalty
In its oral statement, the court imposed a penalty of "78 for DNA," listed in the abstract of judgment as a "$78.00 State Penalty Assessment per GC 76104.6 (DNA)." To fund a DNA testing program, Government Code section 76104.6 levies a penalty of $1 for every $10 of fines and penalties imposed for criminal offenses. (Gov. Code, § 76104.6, subd. (a)(1).) The parties agree that the underlying fine upon which this penalty was based was the $390 fine mandated by Vehicle Code section 23550 for a conviction of driving under the influence where the defendant had three or more prior convictions of that offense within the previous 10 years. The People concede that applying Government Code section 76104.4 to this amount yields a penalty of $39, not $78.
Government Code section 76104.7 provides for an additional penalty of $1 for every $10 of fines and penalties, but that provision became effective on July 12, 2006, a few weeks after defendants arrest. (37A pt. 2 Wests Ann. Gov. Code (2008 supp.) foll. § 76104.7, p. 12.) Defendant argues, and the People agree, that the $78 could not properly have been based in part on this provision because it was not in effect when defendant committed the offense. Consequently, we need not determine whether the parties are correct on this point. (See People v. Alford (2007) 42 Cal.4th 749, 752 [application of $20 court security fee to crimes committed before its enactment was proper]; People v. Batman (2008) 159 Cal.App.4th 587, 591 [despite Alford, application of Gov. Code, § 76104.6 to offense committed before its enactment violated ex post facto clause].) The court here did not purport to base the $78 figure partly on Government Code section 76104.7.
For these reasons, we direct the trial court to reduce the penalty assessment levied pursuant to Government Code section 76104.6 from $78 to $39.
III. Custody credit
As the parties agree, the abstract of judgment correctly states that defendant is entitled to 177 days of presentence custody credit. It states incorrectly, however, that this figure consists of 117 actual days in custody plus 58 days conduct credit. The People concede that defendant spent 119 days in custody and received 58 days of conduct credit. We direct the trial court to amend the abstract of judgment accordingly.
IV. License revocation period
At the sentencing hearing and in its minute order, the court stated that defendants driving privilege would be revoked for four years pursuant to Vehicle Code section 13352, subdivision (a)(7). Four years is the revocation period mandated by Vehicle Code section 13352, subdivision (a)(7). The abstract of judgment, however, states that defendants driving privilege is revoked for two years. Having asked the parties for supplemental briefing on this issue and having received no other explanation, we conclude that the abstract of judgment contains a clerical error. We order the court to correct the error. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order corrections of abstracts of judgment that do not accurately reflect oral judgments of sentencing courts]; People v. Jack (1989) 213 Cal.App.3d 913, 915-916 [clerical error in abstract of judgment, resulting in unauthorized sentence, may be corrected without implicating double-jeopardy principles even if correction results in greater sentence]; People v. Serrato (1973) 9 Cal.3d 753, 764-765 [if trial court imposed less than mandatory sentence, appellate court may direct imposition of mandatory sentence], overruled on other grounds by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
V. Penal Code section 1465.7 surcharge
Applying Vehicle Code section 23645, subdivision (a), the court imposed an alcohol abuse education and prevention penalty assessment of $50. Against this assessment, it levied a surcharge of 20 percent, or $10, pursuant to Penal Code section 1465.7. Defendant argues that a Penal Code section 1465.7 surcharge is inapplicable to a Vehicle Code section 23645, subdivision (a), penalty assessment. He is mistaken.
The issue requires examination of three statutes: Vehicle Code section 23645, subdivision (a), Penal Code section 1464, and Penal Code section 1465.7. Vehicle Code section 23645, subdivision (a), provides in part:
"[A]ny person convicted of a violation of Section 23152 or 23153 shall, in addition to any other fine, assessment, or imprisonment imposed pursuant to law, pay an alcohol abuse education and prevention penalty assessment in an amount not to exceed fifty dollars ($50) ...."
Penal Code section 1464, subdivision (a)(1), provides:
"[T]here shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses ... involving a violation of a section of the Vehicle Code ...."
Finally, Penal Code section 1465.7, subdivision (a), states:
"A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464."
Defendant argues that because Penal Code section 1465.7 states it applies to the base fine used to calculate the Penal Code section 1464 penalty, it does not apply where—as here—the Penal Code section 1464 penalty was based on a penalty (not a fine) imposed under Vehicle Code section 23645. The issue, therefore, is one of statutory interpretation: Does the term "base fine" in Penal Code section 1465.7 refer to "every fine, penalty or forfeiture" upon which a Penal Code section 1464 penalty can be based, or only to those bases of Penal Code section 1464 penalties that are designated as fines in the statutes that create them?
In interpreting a statute, our objective is "to ascertain and effectuate legislative intent." (People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) To the extent the language in the statute may be unclear, we look to legislative history and the statutory scheme of which the statute is a part. (People v. Bartlett (1990) 226 Cal.App.3d 244, 250.) We examine the entire statutory scheme in interpreting particular provisions "so that the whole may be harmonized and retain effectiveness." (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 814.) "In the end, we `"must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." [Citation.]" (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) When confronted with an issue that turns solely on statutory interpretation, we review the trial courts judgment de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
It is highly unlikely that the Legislature used the term "base fine" in Penal Code section 1465.7 because it did not want to levy the surcharge on amounts referred to as penalties. Instead, it is most probable that the Legislature meant the Penal Code section 1465.7 surcharge to be based on the amount on which the Penal Code section 1464 penalty is based. We interpret "base fine" in Penal Code section 1465.7 to mean the amount upon which the trial court properly bases a penalty under Penal Code section 1464. The trial court did not err when it levied the 20 percent surcharge based on the $50 penalty it imposed under Vehicle Code section 23645, subdivision (a).
VI. Court security fee
To underwrite court security costs, Penal Code section 1465.8, subdivision (a)(1), mandates that "a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense ...." The court imposed this fee. Defendant says the abstract of judgment "incorrectly incorporates the court security fee into the penalty assessments imposed by the trial court on [defendants] DUI fine (Veh. Code, § 23550, subd. (a))." We agree that the court security fee is imposed for the conviction and has nothing in particular to do with the assessments imposed under Vehicle Code section 23550; and it is true that the abstract of judgment includes the court security fee within a subtotal ($ 1,424) for those assessments. We do not see, however, how the inclusion of the fee in the subtotal conceivably could have any adverse effect on defendant. His brief does not attempt to explain how he is harmed by this action. He does not claim the fee should not have been imposed, and no correction is necessary.
DISPOSITION
The trial court is directed to modify the sentence and the abstract of judgment as follows:
(1) The two $100 penalty assessments for court facilities construction added to the Penal Code section 1202.4 restitution fine and the Penal Code section 1202.45 parole revocation fine shall be stricken. The restitution fine and parole revocation fine shall each be $200.
(2) The penalty assessment levied pursuant to Government Code section 76104.6 shall be reduced from $78 to $39.
(3) The abstract of judgment shall be amended to show 119 days actually in custody and 58 days of conduct credit, for a total of 177 days of presentence custody credit.
(4) The abstract of judgment shall be amended to state that defendants driving privilege is revoked for four years following his release from prison, not two years, pursuant to Vehicle Code section 13352, subdivision (a)(7).
The court shall forward the amended abstract of judgment to the appropriate authorities. The judgment is affirmed in all other respects.
WE CONCUR:
Gomes, J.
Hill, J.