Opinion
B162634.
11-3-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES LEE, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan, Supervising Deputy Attorney General, and Margaret E. Maxwell, Supervising Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant and appellant James Lee guilty of sexual battery by restraint (count 1, Pen. Code, § 243.4, subd. (a)), forcible oral copulation (count 2, Pen. Code, § 288a, subd. (c)(2)), forcible rape (count 3, Pen. Code, § 261, subd. (a)(2)), false imprisonment by violence (count 4, Pen. Code, § 236), and assault with intent to commit various sex offenses (count 7, Pen. Code, § 220). The trial court sentenced defendant to a total of 15 years in prison, calculated as follows: the midterm of three years on count one; the midterm of six years on count 2, consecutive to the sentence in count 1; the midterm of six years on count 3, consecutive to the sentence in counts 1 and 2; the midterm of two years on count 4, concurrent with the sentence in count 1; and the midterm of four years on count 7, stayed under Penal Code section 654. Defendant was awarded a total of 523 days of presentence custody credits, which included 456 days of actual custody and 67 days of conduct credit. The court also imposed a restitution fine of $1,000 under Penal Code section 1202.4, subdivision (b) and imposed and stayed a parole revocation fine of $1,000 under Penal Code section 1202.45. In addition, the court ordered defendant to register as a sex offender in accordance with Penal Code section 290, and to pay a $200 sex offender registration fine under Penal Code section 290.3. Defendant filed a timely appeal from the judgment.
We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an opening brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Defendants counsel advised defendant that he had 30 days within which to file a supplemental brief. On May 20, 2003, we also advised defendant that he had 30 days within which to file a supplemental brief. Defendant did not file any supplemental letter brief.
We have examined the entire record and observe there are several errors that must be corrected on the abstract of judgment. At our request, the parties submitted supplemental letter briefs concerning those errors.
First, the abstract of judgment does not reflect the $200 sex offender registration fine the trial court imposed under Penal Code section 290.3. Although the minute order from the sentencing hearing does not reflect the imposition of this fine, and the trial court misstated the Penal Code section under which the fine was imposed, the reporters transcript from the sentencing hearing makes clear that the trial court intended to impose this fine. Therefore, the abstract of judgment must be corrected to include the $200 fine under Penal Code section 290.3.
Second, the trial court failed to impose certain mandatory penalties under Penal Code section 1464, subdivision (a), and Government Code section 76000, subdivision (a). Contrary to defense counsels argument in her supplemental letter brief, the Supreme Court has held that the trial court does not have discretion to waive these penalties unless the defendant is serving a prison sentence for failure to pay the penalty. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1154-1157.) Defendant is not serving and has never served such a sentence in this case. Accordingly, the abstract of judgment must be amended to impose a $200 penalty under Penal Code section 1464, subdivision (a), and a $140 penalty under Government Code section 76000, subdivision (a). (Id. at pp. 1157.)
Finally, the trial court erred in calculating defendants presentence custody credits. The trial court awarded 523 days of custody credit, of which 456 days were actual days in custody and 67 were conduct credits. Under Penal Code section 2933.1, defendant was entitled to conduct credits at a rate of 15 percent of actual days in custody. Fifteen percent of 456 is 68.4. Therefore, the abstract of judgment must be amended to reflect 68 days of conduct credit, for a total of 524 days of presentence custody credits.
DISPOSITION
The abstract of judgment is to be modified to reflect 456 days of actual custody credits in addition to 68 days of conduct credits, for a total of 524 days of presentence custody credits; to include the $200 sex offender registration fine under Penal Code section 290.3; and to impose a $200 penalty under Penal Code section 1464, subdivision (a) and a $140 penalty under Government Code section 76000, subdivision (a).
The clerk of the superior court is ordered to prepare an amended abstract of judgment as set forth in this opinion and to forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: TURNER, P.J. ARMSTRONG, J. --------------- Notes: The trial court apparently misspoke when imposing this fine, stating that it was imposed under Penal Code section 293.3, a nonexistent statute.