Opinion
A129242
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. JESUS RIGOLBERTO GUARDADO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR261511)
Defendant Jesus Rigolberto Guardado appeals a judgment entered upon his plea of no contest to a charge of driving with a blood alcohol level of 0.08 percent or more. He contends on appeal that the clerk's minute order does not accurately reflect the fines and penalties assessed by the trial court. We shall remand the matter to the trial court to clarify its ruling.
I. BACKGROUND
We shall recite the background of this case only to the extent it is pertinent to the single issue on appeal.
Defendant was charged in count one with driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)), and in count two with driving while having a blood alcohol level of 0.08 percent or more (§ 23152, subd. (b)). The information alleged that defendant's blood alcohol level had been 0.15 percent or more (§ 23578), and that defendant had suffered prior convictions of section 23152, subdivision (b), in 2003, 2006, and 2009. Pursuant to a negotiated disposition, defendant pled no contest to count two and admitted the prior conviction allegations and the allegation pursuant to section
All undesignated statutory references are to the Vehicle Code.
23578.
At the sentencing hearing, the trial court placed defendant on probation. The court went on: "[Defendant] is ordered to pay the following fines[,] fees, penalty assessments and restitution through Probation as directed. [¶] A fine of $2,000—is that right? Because the third fine, it doesn't go up after the third. $2,534, third offense DUI fine. $200 pursuant to Penal Code Section 1203.4 with a $20 surcharge. $200 pursuant to Penal Code Section 1203.44, stayed, pending successful completion of probation. [¶] . . . [¶] Right. He will pay any fees for drug or alcohol testing. $30 criminal conviction assessment. $30 security surcharge. $250 pre-sentence report fee. $300 fee during any year where he is actively supervised by probation."
The minute order prepared for the hearing reflected a fine of $2,534 plus a penalty assessment, as well as various other fees.
II. DISCUSSION
In imposing the "third offense DUI fine" of $2,534, the trial court did not explain how the amount was calculated. Defendant contends the governing statutes do not authorize a fine in this amount. He suggests the trial court must therefore have intended the amount of $2,534 to include a penalty assessment, and argues that the minute order contains a clerical error when it states that he is subject to a fine of that amount plus a penalty assessment.
The pre-sentence report recommended that amount, but likewise did not explain its calculation.
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The information alleged the three prior convictions under sections 23550 and 23550.5. Section 23550, subdivision (a), provides in pertinent part: "If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of . . . [s]ection 23152 . . . that resulted in convictions, that person shall be punished by . . . a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000)." (See also § 23552, subd. (a)(1).) As pertinent here, section 23550.5, subdivision (a), authorizes fines of between $390 and $1,000 for persons convicted of a violation of section 23152 if the offense occurred within 10 years of a felony violation of section 23152.
As defendant points out, $2,534 exceeds the amount authorized by these statutory provisions. The Attorney General agrees, stating, "[t]he sum [of] $2,534 for the 'third offense DUI fine' is greater than the statutory maximum and is unexplained by the sentencing court or the court minute[s]."
In his opening brief, defendant suggests that the clerk's minute order should therefore be amended to state that he is ordered to pay a fine of $2,534 including penalty assessments, rather than plus penalty assessments. Defendant does not object, however, to the Attorney General's alternate suggestion that the matter be remanded to allow the trial court to explain the statutory bases for the amount of $2,534. We agree that it is appropriate to remand the matter to the trial court for clarification.
We also agree with defendant, however, that the aggregate fines and penalties on remand should not exceed the amount imposed in the court's oral pronouncement. (See People v. Hanson (2000) 23 Cal.4th 355, 357 [when defendant successfully appeals criminal conviction, restitution fines may not be increased on resentencing].)
III. DISPOSITION
The matter is remanded to the trial court for clarification of the fines and penalties imposed. The aggregate fines and penalties on remand shall not exceed those imposed at the original sentencing hearing. The judgment is otherwise affirmed.
RIVERA, J. We concur: RUVOLO, P.J. REARDON, J.