Opinion
C085190
06-05-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND HERNANDEZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 15F03975)
Appointed counsel for defendant Raymond Hernandez filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we have found no arguable error that would result in a disposition more favorable to defendant. However, we have found sentencing errors that must be corrected. We will affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
We provide the following brief description of the factual and procedural background of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) A. Factual Background
On March 17, 2015, Kristina Rogozhin was driving on Interstate 80 when she noticed a black BMW tailgating her. The driver of the BMW, later identified as defendant, followed Rogozhin to her house. Defendant parked on the street next to Rogozhin and started yelling and cursing at her. Rogozhin's mother, father, and fiancé came outside. Thereafter, a verbal altercation ensued, during which there was "a bunch of yelling, screaming, [and] cussing." At one point, Rogozhin's fiancé said he smelled alcohol in the car.
After Rogozhin's father threatened to call 911 and Rogozhin's fiancé took a picture of the BMW's Vehicle Identification Number, defendant drove off. When he did so, he hit Rogozhin's mother and father with his car.
Surveillance cameras at Rogozhin's house captured the incident. Defendant never called 911 to report the incident. B. Procedural Background
After a jury trial, defendant was found guilty of two counts of assault with a deadly weapon--a car (Pen. Code, § 245, subd. (a)(1); undesignated statutory references are to the Penal Code), and one count of hit and run driving with injury (Veh. Code, § 20001, subd. (a)). Prior to sentencing, defendant entered into a negotiated disposition to resolve the instant case as well as three other separate cases—one felony case and two misdemeanor cases. As part of the global resolution, defendant agreed to enter a guilty plea to one count in the felony case and one count in one of the misdemeanor cases, admit an enhancement allegation in the felony case, and pay $26,323 in victim restitution in the felony case. In exchange, the People agreed to dismiss the remaining misdemeanor case and the remaining counts in the felony case. The parties stipulated to an aggregate sentence of six years eight months. After defendant entered his pleas and admission, the trial court sentenced him consistent with the parties' agreement. The court also imposed various fines and fees and victim restitution in the amount agreed upon.
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests 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 from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. However, we have found sentencing errors that must be corrected.
During the oral pronouncement of sentence, the trial court erred in failing to impose a mandatory $40 court operations assessment and a mandatory $30 criminal conviction assessment for each of defendant's five convictions. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1); see also People v. Alford (2007) 42 Cal.4th 749, 754 [court operations assessment is mandatory for all convictions]; People v. Robinson (2012) 209 Cal.App.4th 401, 405 [court operations and criminal conviction assessments "are a required part of defendant's sentence and may be corrected on appeal"].) Failure to impose mandatory fees, fines, penalties, and assessments constitutes an unauthorized sentence, which may be corrected by an appellate court even in the absence of an objection or argument below. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1415.) We modify the oral pronouncement of judgment to impose a court operations assessment (§ 1465.8, subd. (a)(1)) in the aggregate amount of $200 (5 x $40) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) in the aggregate amount of $150 (5 x $30). Because the abstract of judgment correctly reflects that these assessments were imposed, it need not be corrected.
A restitution fine is mandatory in every case where a person is convicted of a crime, unless the sentencing court finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. (§ 1202.4, subd. (b); People v. Tillman (2000) 22 Cal.4th 300, 302 (Tillman); see also People v. Avila (2009) 46 Cal.4th 680, 729 [citing Tillman] and People v. Turrin (2009) 176 Cal.App.4th 1200, 1208, fn. 3 ["Tillman is still good law and has not been legislatively overruled"].) Thus, a restitution fine under section 1202.4 is "a discretionary sentencing choice." (Tillman, at p. 303; People v. Smith (2001) 24 Cal.4th 849, 853.) Here, as set forth above, a jury found defendant guilty of three felony offenses in the instant case. Defendant entered a no contest plea to another felony offense in a separate case. He also entered a no contest plea to one misdemeanor count in a third case. At sentencing, the trial court imposed a $2,000 restitution fine (§ 1202.4, subd. (b)) and a matching $2,000 parole revocation restitution fine (§ 1202.45). In addition, the trial court imposed a $130 restitution fine (§ 1202.4, subd. (b)) in the misdemeanor case (which is below the statutory minimum of $150). The People did not object to these fines. Accordingly, to the extent the trial court erred in imposing restitution fines, we need not modify the judgment. (Tillman, at pp. 302-303.) --------
DISPOSITION
As modified, the judgment is affirmed.
HULL, Acting P. J. We concur: ROBIE, J. HOCH, J.