Opinion
C085835
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR KEITH PENIARANDA-BALDERAS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CR001625)
Appointed counsel for defendant Arthur Keith Peniaranda-Balderas filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we conclude the court failed to sentence defendant on count II and also failed to impose a $40 court operations assessment under Penal Code section 1465.8 and a $30 criminal conviction assessment under Government Code section 70373 for that criminal conviction. We shall affirm defendant's convictions, but vacate defendant's sentence and remand for resentencing. We shall also order that an amended abstract of judgment be prepared to reflect the appropriate fees and to correct a clerical error.
Undesignated statutory references are to the Penal Code.
BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
The facts are based on Tehama County Sheriff's Office report No. 17-01026, which the parties stipulated to as the factual basis for defendant's guilty plea. --------
On June 16, 2017, defendant was pulled over for a traffic violation in a stolen vehicle. Defendant admitted stealing the car from a random home in Chico because he was bored and " 'hearing voices.' " He went into the victims' unlocked house while they slept and stole several personal items, including the keys to their Jeep, which he then drove to Red Bluff to " 'buy some stuff.' " The stolen items were recovered inside the Jeep.
A July 2017 information charged defendant with felony receipt of a stolen vehicle (§ 496d, subd. (a), count I) and misdemeanor receipt of stolen property not exceeding $950 (§ 496, subd. (a), count II). As to count I, it was alleged that defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and two prior prison terms (§ 667.5, subd. (b)).
In August 2017, defendant agreed to an open plea whereby he would plead guilty to both counts and admit two prior prison terms in exchange for a referral to Behavioral Health Court for evaluation and dismissal of two other pending cases. Under the agreement, it was up to the court to decide whether to grant defendant probation to Behavioral Health Court.
After receiving an alternative recommendation from the Behavioral Health Court, and considering the probation report, the court denied defendant's application for probation and sentenced him to the midterm of two years for the stolen vehicle conviction and one year each for the two prior prison terms for a total aggregate term of four years in state prison. The court did not impose a sentence for count II. The court awarded defendant 102 days actual credit and 102 days conduct credit for a total of 204 days of presentence credit. The court imposed a $600 restitution fine (§ 1202.4), a $600 parole revocation restitution fine, suspended unless parole was revoked (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373). Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
After examining the record, we find that the court erred by failing to sentence defendant on count II--his conviction for receipt of stolen property not exceeding $950. " 'Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed.' " (People v. Alford (2010) 180 Cal.App.4th 1463, 1468 (Alford); § 12 ["The several sections of this Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the Court authorized to pass sentence, to determine and impose the punishment prescribed."].) " 'Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion.' " (Alford, at p. 1468.) Thus, "[a] sentence must be imposed on each count . . . ." (Id. at p. 1469.)
While the parties and the court appeared to agree during the earlier plea hearing that section 654 may apply to any sentence on count II, at the subsequent sentencing hearing neither the court nor counsel discussed defendant's count II conviction. Even if section 654 applies, procedurally the trial court must impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple punishment under section 654. (People v. Deloza (1998) 18 Cal.4th 585, 591-592; Alford, supra, 180 Cal.App.4th at p. 1469.) We shall therefore vacate defendant's sentence and remand for resentencing.
The trial court also erred by failing to impose a $40 court operations assessment under section 1465.8 and a $30 conviction assessment under Government Code section 70373 for defendant's count II conviction. The record shows the court imposed each of the above fees only for defendant's count I conviction.
Section 1465.8, subdivision (a)(1) provides: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense, except [for certain] parking offenses . . . ." (§ 1465.8, subd. (a)(1), italics added.) Similarly, Government Code section 70373 provides: "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 [certain] parking offenses . . . . 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." (Gov. Code, § 70373, subd. (a)(1), italics added.) Because defendant was convicted of two criminal offenses, the trial court should have imposed an $80 court operations assessment under section 1465.8 and a $60 conviction assessment under Government Code section 70373. Upon remand, the trial court is directed to impose the correct amount of fees.
We have also found an error in the abstract of judgment that must be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts"].) Item 4 on the abstract of judgment checks the box indicating that defendant was sentenced "per PC 667(b)-(i) or PC 1170.12 (strike prior)." Defendant, however, did not admit the strike allegation as part of the plea, and, in fact, the strike allegation was later dismissed upon entry of the plea. We shall direct the trial court to amend the abstract of judgment to correct the cited clerical error.
DISPOSITION
Defendant's convictions are affirmed. The sentence is vacated and the matter is remanded to the trial court for resentencing on count I and count II. The court shall impose an $80 court operations assessment under section 1465.8 and a $60 conviction assessment under Government Code section 70373. Upon resentencing, the court shall prepare an amended abstract of judgment that reflects the proper fees and deletes the checked box showing defendant was sentenced for a strike prior. The clerk shall forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.