Opinion
C081189
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. LESLIE MINJAREZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCR20157154)
Defendant Leslie Minjarez was charged with several counts of second degree robbery, 16 counts of assault with a semiautomatic firearm, two counts of first degree burglary, first degree robbery, kidnapping for robbery, four counts of kidnapping, unlawful driving or taking a car, two counts of false imprisonment by violence, attempted robbery, two counts of felon in possession of a firearm, and possession of ammunition. The indictment alleged several counts involved the use of a firearm pursuant to Penal Code section 12022.5, subdivision (a) and/or section 12022.53, subdivision (b).
Further undesignated references are to this code. --------
On October 27, 2015, defendant pled guilty to nine counts and admitted the firearm use allegations as to four counts in exchange for a stipulated term of 30 years in prison. At the prosecution's request, the court dismissed all remaining charges subject to a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The parties stipulated to the following factual basis as contained in the transcript of the grand jury proceedings.
April 4, 2015, Robbery Of Anthony Calderon At Kelly's Car Wash
On April 4, 2015, defendant entered Kelly's car wash on Thornton Road in Stockton. Defendant held a gun to employee Anthony Calderon's head and demanded all the money and the keys to the register, threatening to kill Calderon if he did not comply. Calderon complied and defendant took all the money from the register, as well as Calderon's personal phone.
April 28, 2015, Robbery Of Arquimedes Aparicio At El Comal Sobre Ruedas
On April 28, 2015, defendant approached Arquimedes Aparicio, a cashier at the El Comal Sobre Ruedas taco truck, pointed a gun at him, and demanded money. Aparicio was afraid and complied.
May 30, 2015, Robbery Of Jagwinder Singh At Shell Gas Station
On May 30, 2015, defendant entered the Shell gas station on Best and March Lane in Stockton, pointed a gun at cashier Jagwinder Singh, and demanded money. Singh was afraid and complied. The incident was captured on the store's surveillance video.
May 31, 2015, Robbery Of Joshua Lovelace At AJ's Business Center
On May 31, 2015, defendant entered AJ's Business Center, pointed a silver gun at employee Joshua Lovelace, handed him a bag, and demanded money. Lovelace was afraid and complied.
June 5, 2015, Robbery Of Mohamad "Kaleem" Khan At Tobacco Zone
On June 5, 2015, defendant entered the Tobacco Zone holding a gun, demanded money from salesperson Mohamad "Kaleem" Khan, and threatened to kill him if he did not comply. Khan opened the cash register and told defendant to take whatever was inside. Defendant took the money and left on a bicycle. The incident was captured on the store's surveillance video.
June 7, 2015, Robbery Of Li Chen At New Wok Inn
On June 7, 2015, defendant entered the New Wok Inn, pointed a gun at owner Li Chen, and demanded money from the cash register. Chen was afraid and complied. The incident was captured on the store's surveillance video.
June 9, 2015, Robbery Of Iftikhar Ali At Hyphy's Smoker Club
On June 9, 2015, defendant entered Hyphy's Smoker Club on Lower Sacramento Road, pointed a gun at the chest of employee Iftikhar Ali, and demanded money. Ali was afraid and complied. The incident was captured on the club's surveillance video. While the video was subsequently taped over, Ali and responding authorities were able to view the footage prior to its deletion.
June 10, 2015, Robbery Of Jose Cabrera At The El Tarasco Taco Truck
On June 10, 2015, defendant ordered food at the El Tarasco taco truck and then pointed a gun at employee Jose Cabrera's head and demanded money. Because defendant had a gun, Cabrera complied.
June 12, 2015, Robbery Of Khurram Shehza At Tobacco Zone
On June 12, 2015, defendant entered Tobacco Zone on North Wilson Way in Stockton, approached employee Khurram Shehza with a gun, and demanded that Shehza open the cash register and give him all the money. Shehza was afraid and complied. The incident was captured on the store's surveillance video.
The court imposed a $300 restitution fine, a $300 parole revocation restitution fine, stayed pending successful completion of parole, a $360 court operations assessment, a $270 court facility fee, and "a $39 dollar theft related fee pursuant to Penal Code Section 1202.5." The court awarded defendant 155 days of presentence custody credit (135 actual days plus 20 days of conduct credit).
Defendant filed a notice of appeal on January 6, 2016. The trial court granted his request for a certificate of probable cause.
On June 3, 2016, this court granted defendant's request for permission to file a notice of appeal under the constructive filing doctrine and deemed defendant's notice timely for all purposes of appellate review.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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. To date, defendant has not filed a supplemental brief.
Our review of the record reveals errors in the imposition of fees and fines. First, the court orally imposed a $39 "theft fee" pursuant to section 1202.5. However, section 1202.5 provides for a $10 criminal fine, which "is subject to the following additional assessments, surcharge, and penalties, which the Legislature has expressly provided must be added to any criminal fine: (1) a $10 penalty assessment pursuant to Penal Code section 1464, subdivision (a)(1); (2) a $7 penalty assessment pursuant to Government Code section 76000, subdivision (a)(1); (3) a $2 penalty assessment pursuant to Government Code section 76000.5, subdivision (a)(1); (4) a $2 state surcharge pursuant to Penal Code section 1465.7, subdivision (a); (5) a state court construction penalty of $5 or less pursuant to Government Code section 70372, subdivision (a)(1); (6) a $1 DNA penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and (7) a $1 DNA state-only penalty pursuant to Government Code section 76104.7, subdivision (a). " (People v. Knightbent (2010) 186 Cal.App.4th 1105, 1109.) Therefore, the total amount of a $10 section 1202.5 fine plus applicable assessments, surcharges, and penalties imposed is $38. The abstract of judgment omits any section 1202.5 fine. We will direct the trial court to impose a $38 fine pursuant to section 1202.5 and amend item number 9c of the abstract to reflect imposition of that fine.
Next, the court orally imposed "a $30 surcharge" but did not refer to any corresponding statutory authority. A "$30 Surcharge" reflected in item number 13 of the abstract of judgment also omits any corresponding statutory authority. Because the court's October 27, 2015, minute order omits fees, fines, and surcharges altogether, we are unable to identify the statutory basis for the $30 surcharge. We will direct the trial court to prepare an amended minute order that clearly sets forth all monetary charges orally ordered at sentencing, including the $30 surcharge, and the statutory bases therefor. (See People v. Eddards (2008) 162 Cal.App.4th 712, 718, citing People v. High (2004) 119 Cal.App.4th 1192, 1200 [a minute order that omits the statutory bases of fines and fees is insufficient].) We also direct the trial court to amend item number 13 of the abstract to reflect the statutory basis for the "$30.00 surcharge."
Finally, we note that the court's October 27, 2015, minute order does not include the one-year consecutive terms imposed for counts 19, 21, and 23. We will direct the trial court to amend its order to correct the omission.
Having undertaken an examination of the entire record pursuant to Wende, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The $39 fine orally imposed by the court pursuant to section 1202.5 is modified to impose a $10 fine pursuant to section 1202.5, plus a $10 penalty assessment pursuant to section 1464, subdivision (a)(1); a $7 penalty assessment pursuant to Government Code section 76000, subdivision (a)(1); a $2 penalty assessment pursuant to Government Code section 76000.5, subdivision (a)(1); a $2 state surcharge pursuant to section 1465.7, subdivision (a); a state court construction penalty of $5 or less pursuant to Government Code section 70372, subdivision (a)(1); a $1 DNA penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and a $1 DNA state-only penalty pursuant to Government Code section 76104.7, subdivision (a), for a total fine of $38. As modified, the judgment is affirmed.
The trial court is directed to amend its October 27, 2015, minute order to reflect the one-year consecutive terms imposed for counts 19, 21, and 23, and to clearly set forth all fees, fines, penalties, and surcharges orally imposed at sentencing, including the $30 surcharge and the $38 fine, and their statutory bases. The court is further directed to prepare an amended abstract of judgment consistent with this opinion and deliver a copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Hoch, J.