Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD219376 Theodore M. Weathers, Judge.
NARES, J.
Israel Ontiveros appeals from a judgment entered on his guilty plea to two counts of robbery and one count of attempted grand theft. He contends that his waiver of the right to appear at future restitution hearings must be set aside because it was based on the trial court's erroneous advisement that he would not accrue good time credits during his attendance at such hearings, and that the abstract of judgment must be corrected by striking $90 in criminal conviction assessment fines imposed on him. The Attorney General concedes, and we agree, that the court's advisement regarding custody credits was erroneous and we thus reverse the judgment as to Ontiveros's waiver of the right to attend any restitution hearings in these criminal proceedings. However, we reject Ontiveros's argument that the court improperly imposed the criminal conviction assessment fines and thus affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2009, Ontiveros was arrested and charged with two counts of robbery, one count of attempted robbery and one count of making a criminal threat. After the court dismissed the criminal threat count, Ontiveros agreed to plead guilty to the robbery counts and to attempted grand theft (a lesser included offense of the attempted robbery) in exchange for the prosecution's dismissal of related allegations that he personally used a deadly and dangerous weapon during the offenses and that he committed the offenses for gang purposes. The plea agreement included a stipulated sentence of six years four months.
Approximately a month after entering the plea, Ontiveros requested to withdraw it against the advice of his counsel. The court ultimately appointed the Alternate Public Defenders to look into the possible withdrawal of Ontiveros's plea.
At a subsequent hearing, the Alternate Public Defenders advised the court that there was no basis for withdrawal of the plea and the court sentenced Ontiveros in accordance with the plea agreement, awarding him 227 days of custody credits. It ordered him to pay a $200 restitution fine, a $200 parole revocation fine (stayed unless parole was later revoked), $90 in court security fees pursuant to Penal Code section 1465.8 and $90 in criminal conviction assessment fines pursuant to Government Code section 70373. Based on the court's representation that Ontiveros's waiver of the right to appear at any future restitution hearing would avoid the loss of "potential good time" credits, Ontiveros agreed to waive that right.
Ontiveros filed a notice of appeal and sought a certificate of probable cause on the ground that he was "not in a sane state of mind" and "medicated" at the plea hearing. After the trial court denied his request for a certificate of probable cause, Ontiveros filed an amended notice of appeal, limiting his challenges to the sentence or other matters occurring after the plea.
DISCUSSION
1. Waiver of the Right to Attend Restitution Hearings
The parties here agree that a criminal defendant has the right to attend a hearing to determine the amount of restitution to be paid to his victim. (See People v. Cole (2004) 33 Cal.4th 1158, 1230; People v. Cain (2000) 82 Cal.App.4th 81, 86; Pen. Code, § 1202.4, subd. (f)(1); also People v. Prosser (2007) 157 Cal.App.4th 682 [recognizing that due process requires that a defendant be given a hearing at which he may challenge the amount of restitution requested]; Pen. Code, § 977, subd. (b)(1) [statutory right to a hearing].) They also agree that, contrary to the court's advisement, a defendant does not lose good time custody credits for time that he is out of prison to attend such a hearing (Cal. Code Regs., tit. 15, § 3045.3, subd. (b)(6)) and that, because Ontiveros's waiver of his right to attend restitution hearings was based on the court's mistaken advisement, it was involuntary. (See generally People v. Barnum (2003) 29 Cal.4th 1210, 1223 [recognizing that a waiver must be knowing and intelligent to be valid].) Accordingly, his waiver of the right to attend any future restitution hearings must be vacated.
2. Imposition of Criminal Conviction Assessment Fines
Government Code section 70373, subdivision (a)(1) provides in relevant part:
"To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction."
Ontiveros challenges the court's imposition of $90 in criminal conviction assessment fines for his three offenses, contending that such fines only apply to convictions for violations of the Vehicle Code. His restricted interpretation of the statutory language, however, has been rejected. (People v. Le (2006) 137 Cal.App.4th 54, 60-63 [holding that the statutory language applies to every criminal conviction]; see also People v. Alford (2007) 42 Cal.4th 749, 752.)
Penal Code section 1465.8, subdivision (a)(1) similarly provides for the imposition of a court security fee of $30 for "every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 [of the Penal Code], involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." The quoted language is almost identical to that set forth in Government Code section 70373. Notably, although the court imposed the court security fees as to the offenses to which Ontiveros pled guilty, he does not challenge the application of that fee to those offenses.
Further, the fine has been consistently imposed for criminal convictions not involving violations of the Vehicle Code (e.g., People v. Sharret (2011) 191 Cal.App.4th 859 [drug possession offenses]; People v. Crabtree (2009) 169 Cal.App.4th 1293 [lewd acts on a child and misdemeanor child molestation]), as has the court security fee imposed pursuant to the similar language of Government Code section 70373. (People v. Lopez (2010) 188 Cal.App.4th 474 [application to a defendant convicted of kidnapping, inflicting corporal punishment and making criminal threats]; People v. Mendez (2010) 188 Cal.App.4th 47 [carjacking, assault with a firearm and second degree robbery]; People v. Knightbent (2010) 186 Cal.App.4th 1105 [robbery and burglary]; People v. Fleury (2010) 182 Cal.App.4th 1486 [arson of an uninhabited structure and felony vandalism].) Based on the courts' consistent application of the statutory language, we reject Ontiveros's contentions that it is ambiguous and thus must be construed in his favor to apply only to Vehicle Code violations.
Ontiveros also asserts that the criminal conviction fines must be stricken because the court did not orally impose them at the sentencing hearing. However, because the imposition of criminal assessment fines is mandatory (Gov. Code, § 70373, subd. (a)(1)), the trial court's failure to specifically refer to the fines at the sentencing hearing does not invalidate the fines' imposition. (See People v. Walz (2008) 160 Cal.App.4th 1364, 1369 [a court's failure to impose a mandatory fine results in an unauthorized sentence that can be corrected at any time], citing People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7.)
For these reasons, we affirm the trial court's imposition of the criminal conviction fines.
DISPOSITION
The judgment is reversed insofar as it incorporates Ontiveros's waiver of his right to attend any restitution hearing, and the matter is remanded with directions to the trial court to strike from the minutes of the sentencing hearing the reference to Ontiveros having waived his presence at any future restitution hearing. The judgment is otherwise affirmed in its entirety.
WE CONCUR: McCONNELL, P. J., IRION, J.