Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA079090, Wade D. Olson, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Frank James Licher appeals from a judgment entered following his negotiated no contest plea to feloniously evading a pursing police officer (count 1) and driving under the influence of alcohol (count 2). (Veh. Code, §§ 2800.2, subd. (a), 23152, subd. (a).) As part of the plea agreement, defendant admitted he had previously suffered one serious or violent felony conviction within the meaning of the “Three Strikes” law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)). On appeal, defendant contends the penalty assessments were erroneously calculated on the mandatory $390 fine imposed for his driving under the influence conviction. We affirm the judgment as modified.
All further statutory references are to the Penal Code, unless otherwise indicated.
In accordance with the plea agreement, the trial court dismissed count 3, driving with a blood alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b)), an additional two prior “strike” allegations, and an allegation defendant had previously served a separate prison term for a felony (§ 667.5, subd. (b)).
SENTENCING HEARING
Pursuant to the plea agreement, defendant was sentenced to an aggregate state prison term of four years: As to count 1, feloniously evading a pursuing officer, the court imposed the two-year middle term, doubled under the Three Strikes law. Defendant received presentence custody credit of 175 days (117 actual days and 58 days of conduct credit). The court ordered defendant to pay a $20 security assessment and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45.
As to count 2, misdemeanor driving under the influence, defendant was sentenced to a concurrent term of 180 days, and ordered to enroll in and complete a three-month alcohol counseling program. The reporter’s transcript reflects the imposition of a $390 fine plus penalty assessments, without an indication of the amounts or statutory basis for those assessments. The clerk’s minutes and the abstract of judgment reflect the imposition of $936 in penalty assessments on the $390 fine, for a total of $1,326, although the statutory basis for this calculation is not provided.
Defendant timely filed a notice of appeal but failed to obtain a certificate of probable cause, and the People moved to dismiss the appeal on that ground. This court denied the motion and granted defendant’s motion for relief from default and to amend the notice of appeal.
DISCUSSION
Defendant challenges the $936 in penalty assessments imposed on the mandatory $390 fine for driving under the influence pursuant to Vehicle Code section 23536, subdivision (a). He contends neither the individual amount nor statutory basis of the penalty assessments appear in the record, and argues the matter should be remanded and the penalty assessments reduced to $858, calculated as follows: (1) a 100 percent penalty of $390 imposed under section 1464; (2) a 70 percent penalty of $273 imposed under Government Code section 76000, subdivision (a); (3) a 20 percent penalty of $78 imposed under section 1465.7, subdivision (a); and (4) a 30 percent penalty of $117 imposed under Government Code sections 70372, subdivision (a), and 70375, subdivision (b). It is the court’s miscalculation of this last penalty assessment to which defendant attributes the $78 discrepancy.
Vehicle Code section 23536, subdivision (a), provides: “(a) If a person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000).”
The People acknowledge that the trial court erroneously failed to list individual penalty assessments and relevant statutory bases, and that defendant’s calculations as to items one through four appear to be correct. Specifically, the People concede the $936 in penalty assessments should be reduced to $858. As a result, the sum of the fine and penalty assessments would be $1,248 ($390 + $858) rather than $1,326 ($390 + $936). The People also acknowledge that under these circumstances, remand would ordinarily be necessary for the trial court to identify each penalty assessment and corresponding statutory basis. The People urge, nonetheless, that in light of the relatively small sum involved and the greater costs possibly associated with remand, this court should correct the trial court’s erroneous calculation of the penalty assessment imposed under Government Code sections 70372, subdivision (a), and 70375, subdivision (b).
As the parties agree, the trial court properly imposed the $390 fine and penalty assessments, but improperly failed to articulate them in detail, as the court was obligated to do in the abstract of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Both parties further agree that, even in the absence of the individual penalty assessments and their statutory bases, it was clear the court made a $78 error in determining the penalty assessment of Government Code sections 7032, subdivision (a), and 7035, subdivision (b). Under these circumstances, remand would only serve to unnecessarily increase the costs to the parties and the taxpayers for no good purpose. (See People v. Walker (1991) 54 Cal.3d 1013, 1029; People v. Taylor (2004) 118 Cal.App.4th 454, 456.)
DISPOSITION
The judgment is modified to reduce the total amount of penalty assessments from $936 to $858 on the $390 fine of Vehicle Code section 23536, subdivision (a), calculated as follows: (1) a 100 percent penalty of $390 imposed under section 1464; (2) a 70 percent penalty of $273 imposed under Government Code section 76000, subdivision (a); (3) a 20 percent penalty of $78 imposed under section 1465.7, subdivision (a); and (4) a 30 percent penalty of $117 imposed under Government Code sections 70372, subdivision (a), and 70375, subdivision (b). The trial court is directed to forward to the Department of Corrections and Rehabilitation an amended abstract of judgment with this modification, including the amount of each penalty assessment and its statutory basis. As modified, the judgment is affirmed.
We concur: PERLUSS, P. J. ZELON, J.