Opinion
C043382.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. ALAN PERIMAN, Defendant and Appellant.
A jury convicted defendant Alan Periman of failing to register as a sex offender within five days of his birthday and acquitted him of failing to register within five days of a change of residence. (Pen. Code, § 290, subds. (a)(1)(D), (f)(1), (g)(2); further statutory references are to the Penal Code.)[] The trial court found he had suffered a 1982 Sacramento County conviction of forcible rape (§ 261, subd. (2)) within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). Defendants motion to strike the strike conviction was granted. He was sentenced to state prison for two years, awarded 326 days of custody credit and 162 days of conduct credit, and ordered to pay a $200 restitution fine (§ 1202.4), a $166 main jail booking fee and a $36 main jail classification fee (Gov. Code, § 29550.2).
Section 290, subdivision (a)(1)(D), provides in relevant part:
"Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday . . . ."
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.
Defendant filed a supplemental brief, which we have set forth in relevant part in the margin.[] The brief acknowledges that defendant misunderstood the registration law, but it does not identify any arguable legal error at trial or at sentencing.
Defendants supplemental brief states in relevant part: "The law states that I must register on my first birthday and then register annually on future birthdays. I misunderstood annually to mean once a year. I registered upon entering the state and had only been here a few months when my birthday arrived. Since none of my information had changed and it had been nowhere near a year since I had registered I didnt realize I was supposed to go down and re-register again. If the law had said 1st birthday and every birthday after that instead of `annually, I would have understood. If any of my information had needed to be updated I would have gone down to update it within 5 days. I have resided in Arizona for the last few years and just returned to California for a short period of time. My real crime was interpreting the term `annually to mean yearly, not realizing the first time didnt necessarily need to be a year."
Our review of the record discloses that the trial court erred by failing to impose a $200 parole revocation fine. (§ 1202.45.) A trial court "has no choice and must impose a parole revocation fine equal to the restitution fine whenever the `sentence includes a period of parole." Because omission of the parole revocation fine "presents a pure question of law with only one answer, any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings." (People v. Smith (2001) 24 Cal.4th 849, 853, orig. emphasis.) We shall modify the judgment accordingly.[]
The issue of imposition of a parole revocation fine seems noncontroversial and the court has addressed it summarily in this opinion, in the interest of judicial economy. Any party aggrieved by this procedure should petition for rehearing. (Gov. Code, § 68081.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to impose a $200 restitution fine suspended unless parole is revoked. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections.
We concur: RAYE, J. and ROBIE, J.