Opinion
B305710
02-10-2021
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO RIVERA LEGASPI, Defendant and Appellant.
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA120501) APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Jr., Judge. Modified and, as so modified, affirmed with directions. Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Robert Legaspi contends the trial court miscalculated the penalty assessments imposed at his sentencing hearing, and failed to identify the statutory basis for each. The People agree, as do we, that the matter must be remanded for the trial court to correct these errors, and issue a modified abstract of judgment that identifies the statutory basis for each fine, fee, and penalty assessment imposed.
FACTUAL AND PROCEDURAL BACKGROUND
In a 23-count complaint, Legaspi was charged with various sex offenses against his daughter between 2013 and 2019. He pled no contest to four counts: lewd acts upon a child between 2003 and 2005 (Pen. Code, § 288, subd. (a); counts 1 and 2), forcible oral copulation between 2014 and 2015 (§ 288a, subd. (c)(2)(A); count 13), and forcible rape between 2017 and 2018 (§ 261, subd. (a)(2); count 21). The trial court dismissed the remaining counts and sentenced Legaspi to 20 years in prison.
All further unspecified statutory citations are to the Penal Code.
The trial court imposed various fines, fees, and penalty assessments, which were generally described in the January 2020 abstract of judgment. Legaspi timely appealed the judgment. Following a letter from Legaspi's counsel regarding errors in the calculations, the amounts were modified as reflected in the court's July 2020 minute order:
• Count 1: a base fine of $200 (§ 290.3), a penalty assessment of $400, and a 20 percent state surcharge of $20
Total amount: $620
• Count 2: a base fine of $300 (§ 290.3), a penalty assessment of $630, and a 20 percent state surcharge of $20
Total amount: $950
• Counts 13 and 21: a base fine of $500 (§ 290.3), a penalty assessment of $1,450, and a 20 percent state surcharge of $100
Total amount per count: $2050
Section 290.3, subdivision (a), states: "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall . . . be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." Because Legaspi committed the offenses in counts 1 and 2 before the statute was amended in 2006, the court reduced the fines to comply with former section 290.3. (See Stats. 1995, ch. 91, § 121, p. 346 [$200 for first offense, $300 for subsequent offense]; Stats. 2006, ch. 337, § 18; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248 [under ex post facto principles, amount of § 290.3 fine is determined as of date of offense].)
The court separately ordered restitution fines, victim restitution, a criminal conviction fee (Gov. Code, § 70373), and a court operations fee (§ 1465.8), which are not subject to penalty assessments and are not challenged on appeal.
The abstract of judgment was not modified to reflect the changes.
DISCUSSION
Legaspi contends the trial court miscalculated the penalty assessments by imposing a duplicative 20 percent state surcharge on each count as part of the unspecified "penalty assessments." He also contends the court miscalculated the 20 percent state surcharge in counts 1 and 2. Thus, Legaspi urges the matter be remanded for the trial court to correct these errors, identify the statutory bases for its calculations, and amend the abstract of judgment. The People concede the trial court appears to have miscalculated the penalty assessments, and agree the matter must be remanded for the trial court to make the requested corrections.
The abstract of judgment should itemize each fine, fee, and penalty assessment imposed and identify the statutory basis for each. (See People v. Hamed (2013) 221 Cal.App.4th 928, 937 [abstract of judgment must " 'separately list, with the statutory basis, all fines, fees and penalties imposed on each count' "]; People v. Johnson (2015) 234 Cal.App.4th 1432, 1459 ["abstract of judgment should detail the amounts of and statutory basis for the base fine and each of the penalty assessments imposed"].) Here, the record does not make clear how the trial court calculated the penalty assessments. The only breakdown the court provided in its minute order was to separate the base fine from unspecified "penalty assessments" and a 20 percent state surcharge. The minute order cites only section 290.3 as a statutory basis, while the abstract of judgment provides no further explanation and is now outdated following the court's July 2020 corrections.
The 20 percent state surcharge was presumably imposed pursuant to section 1465.7, subdivision (a), which provides: "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."
The applicable penalty assessments should be:
• Count 1 (base fine of $200):
? a 100 percent state penalty assessment of $200 (§ 1464, subd. (a)(1))
? a 50 percent county assessment of $100 (Gov. Code, § 76000, subds. (a)(1) & (e))
? a 30 percent court construction penalty of $60 (Gov. Code, § 70372)
? a 20 percent state criminal surcharge of $40 (§ 1465.7)
Total amount: $600
• Count 2 (base fine of $300):
? a 100 percent state penalty assessment of $300 (§ 1464, subd. (a)(1))
? a 50 percent county assessment of $150 (Gov. Code, § 76000, subds. (a)(1) & (e))
? a 30 percent court construction penalty of $90 (Gov. Code, § 70372)
? a 10 percent DNA penalty of $30 (Gov. Code, § 76104.6, subd. (a)(1))
? a 20 percent state criminal surcharge of $60 (§ 1465.7)
Total amount: $930
• Counts 13 and 21 (base fine of $500 per count):
? a 100 percent state penalty assessment of $500 (§ 1464, subd. (a)(1))
? a 50 percent county assessment of $250 (Gov. Code, § 76000, subds. (a)(1) & (e))
? a 50 percent court construction penalty of $250 (Gov. Code, § 70372)
? a 20 percent emergency medical services penalty of $100 (Gov. Code, § 76000.5)
? a 10 percent DNA penalty of $50 (Gov. Code, § 76104.6, subd. (a)(1))
? a 40 percent state-only DNA penalty of $200 (Gov. Code, § 76104.7)
? a 20 percent state criminal surcharge of $100 (§ 1465.7)
Total amount per count: $1,950
Government Code section 70372, was amended in 2011 to delete the county reduction of the state court construction penalty. (See Stats. 2011 ch. 304, § 5; People v. McCoy (2007) 156 Cal.App.4th 1246, 1254.) This accounts for the difference in the court construction penalties imposed for counts 1 and 2 (30 percent), which were committed before the amendment's effective date, and counts 13 and 21 (50 percent), which were committed after 2012. (See People v. Voit (2011) 200 Cal.App.4th 1353, 1373-1375 (Voit) [applying statutes in effect at the time of defendant's crimes under ex post facto principles].)
The DNA penalty became effective November 3, 2004, after count 1 was committed, and does not apply retroactively. (See People v. Batman (2008) 159 Cal.App.4th 587, 591; Voit, supra, 200 Cal.App.4th at pp. 1373-1375.)
The emergency medical services penalty became effective January 1, 2007, after counts 1 and 2 were committed, and does not apply retroactively. (See Voit, supra, 200 Cal.App.4th at pp. 1373-1375.)
The state-only DNA penalty became effective July 12, 2006, after counts 1 and 2 were committed, and does not apply retroactively. (See Stats. 2006, ch. 69, § 18; Voit, supra, 200 Cal.App.4th at pp. 1373-1375.)
As both parties agree, based on the discrepancies between the alleged total amounts and the amounts ordered by the court, it appears the 20 percent state surcharge was already included in the "penalty assessments" in each count, and thus twice assessed. It also appears the 20 percent surcharge was miscalculated in counts 1 and 2, and should be corrected to $40 for count 1 and $60 for count 2. However, because the minute order does not itemize the penalties nor identify their statutory bases, and no revised abstract of judgment was issued, we cannot determine how the trial court calculated the penalty assessments. Therefore, we concur with both parties that the matter must be remanded for the trial court to correct these errors and issue a modified abstract of judgment that identifies all fines, fees, and penalty assessments imposed and the statutory basis for each. (See People v. High (2004) 119 Cal.App.4th 1192, 1200 ["Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment."].)
DISPOSITION
The matter is remanded for the trial court to correct the errors described, itemize all fines, fees, and penalty assessments imposed, and identify the statutory basis for each. The trial court shall modify the abstract of judgment to reflect these changes and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.