Opinion
C089719
07-08-2020
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO MARTINEZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FE018846)
Appointed counsel for defendant Ernesto Martinez has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We conclude there is no arguable error that would result in a disposition more favorable to defendant. We shall modify the judgment to address some sentencing issues. In all other respects, the judgment is affirmed.
BACKGROUND
In a series of telephone calls and voice messages in June 2018, defendant threatened to kill the adoptive mother of his two young biological children.
Fearing for her safety, and her family's, the adoptive mother told defendant she would "call the cops on him." Defendant warned the adoptive mother he would "hurt" her if she did.
In his testimony, defendant admitted he called the adoptive mother, but insisted he "had been drinking" and "using methamphetamine," and it was "not [his] intention[]" "to hurt . . . anybody" and "was not calling allegedly threatening anybody." Defendant also raised the possibility that "[s]ome of" the recordings "could have been altered" by the adoptive mother because defendant did not remember the calls, and the adoptive mother wanted to prevent defendant from obtaining custody of his biological children.
The jury found defendant guilty of making criminal threats (Pen. Code, § 422) and intimidating a crime victim (§ 136.1, subd. (b)).
Undesignated statutory references are to the Penal Code.
Defendant waived a jury trial on the existence of a prior strike conviction and admitted it.
At the sentencing hearing, counsel for defendant asked the court to impose: (1) the middle term for the criminal threats offense, because when he made the threatening telephone calls, defendant was "very emotional about the loss and connection with his children"; and (2) "the minimum fines and fees," because defendant was "a day laborer mechanic . . . able to" earn "up to $100 a day but that [was] spotty."
Echoing one of the recommendations in a probation officer's presentencing report (that the trial court said it read and considered), the prosecutor urged an upper-term sentence because defendant was on parole at the time of his crimes.
The trial court sentenced defendant to serve six years' imprisonment for the criminal threats offense (the upper term of three years, doubled for the prior strike), and imposed but stayed, pursuant to section 654, a term of 16 months for the crime victim intimidation offense (the lower term). The trial court articulated several aggravating factors supporting the upper term sentence, including that defendant was on parole at the time of his crimes.
The trial court calculated 205 days of custody credit, and imposed the following costs: the statutory minimum $300 restitution fine (§ 1202.4), a suspended $300 parole revocation fine pursuant to section 1202.45, a $40 court operations assessment fee (§ 1465.8), a $30 court facility fee (Gov. Code, § 70373), a $453.62 booking fee (Gov. Code, § 29550.2), and a $90.65 main jail classification fee (Gov. Code, § 29550.2). The trial court also referenced a "criminal impact fee of 20 percent of the base fine . . . under [s]ection 1465.7."
DISCUSSION
Appointed 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 of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. But we find several sentencing errors, which we discuss below.
The trial court should have doubled the sentence for the crime victim intimidation offense before correctly staying it pursuant to section 654. (See People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164 [where prison term for current offense was subject to doubling and was also subject to stay under § 654, court should have imposed the term, doubled it, and stayed it].) We may correct this unauthorized sentence. (Id. at p. 1165.)
Further, our review of the record has discovered two mandatory fees that need to be increased and one fee that should not have been imposed. Failure to impose a mandatory fee results in an unauthorized sentence that may be corrected on appeal. (See People v. Voit (2011) 200 Cal.App.4th 1353, 1373.)
Here, the trial court should have imposed the court operations assessment fee and court facility fee on both offenses, even though it stayed the punishment for the witness intimidation offense, because those fees are not punishment. (See People v. Sencion (2012) 211 Cal.App.4th 480, 484.)
Accordingly, we will modify the judgment to reflect imposition of $80 in court operations assessment fees (§ 1465.8) and $60 in court facility fees (Gov. Code, § 70373).
Further, the trial court's reference to a "criminal impact fee of 20 percent of the base fine . . . under [s]ection 1465.7" -- which is reflected in the abstract of judgment -- was unauthorized because no base fines were imposed.
Last, the abstract of judgment incorrectly reflects a sentence of three years for the criminal threats offense on line 1, though it correctly reflects the total time imposed of six years on line 9.
DISPOSITION
The judgment is modified to reflect a sentence of 32 months for the offense of intimidating a crime victim, to impose an $80 court operations assessment fee (§ 1465.8) and $60 court facility fee (Gov. Code, § 70373), and to strike the criminal impact fee (§ 1465.7).
The clerk of the trial court is directed to prepare an amended abstract of judgment reflecting our modifications to the judgment and correcting line 1 to reflect a sentence of six years, and to provide a certified copy to Department of Corrections and Rehabilitation that reflects those changes and omits any reference to a "criminal impact fee." In all other respects, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
DUARTE, J.