Opinion
C085053
05-25-2018
THE PEOPLE, Plaintiff and Respondent, v. FERMIN RAMIREZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16FE015745, 17FE004856)
Appointed counsel for defendant Fermin Ramirez asked 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).) Based on our review of the record, we will modify the judgment to impose a $300 parole revocation restitution fine in case No. 16FE015745, and to impose a $40 court operations assessment and a $30 criminal conviction assessment in case No. 17FE004856. We will also direct the trial court to correct a clerical error in the abstract of judgment.
Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment as modified.
I
In August 2016, defendant drove his vehicle into the victim's vehicle while she was inside it. In case No. 16FE015745, defendant pleaded no contest to assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) The trial court suspended imposition of sentence, placed defendant on probation for five years with various terms and conditions, including 364 days in county jail stayed until June 16, 2017, and ordered defendant to pay various fines and fees, including a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 probation revocation fine (§ 1202.44).
Undesignated statutory references are to the Penal Code. --------
In March 2017, defendant punched his girlfriend in the face numerous times, fracturing her nose. Pursuant to a negotiated disposition, defendant pleaded no contest in case No. 17FE004856 to willful infliction of corporal injury resulting in a traumatic condition (§ 273.5, subd. (a)) and admitted an allegation that he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). Defendant also admitted violating his probation in case No. 16FE015745. In exchange, the parties agreed to a sentence of five years in case No. 17FE004856, plus a concurrent term of three years in case No. 16FE015745.
The trial court accepted the plea and admissions, found that defendant had violated his probation in case No. 16FE015745, and sentenced defendant consistent with the negotiated agreement. In case No. 17FE004856, the trial court ordered defendant to pay a $500 restitution fine (§ 1202.4) and imposed and stayed a $500 parole revocation fine (§ 1202.45). In case No. 16FE015745, the trial court imposed the previously stayed $300 probation revocation fine (§ 1202.44) and also imposed and stayed a parole revocation fine (§ 1202.45). But the trial court did not state the amount of the parole revocation fine.
The trial court denied defendant's request for a certificate of probable cause.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking 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 the opening brief. More than 30 days elapsed and we received no communication from defendant.
Based on our review of the record, we will modify the judgment and direct the trial court to amend and correct the abstract of judgment.
During the oral pronouncement of sentence, the trial court did not state the amount of the new parole revocation fine (§ 1202.45) imposed and stayed in case No. 16FE015745. But because the trial court had previously imposed a $300 restitution fine (§ 1202.4) when it suspended imposition of sentence and placed defendant on probation in that case, the amount of the parole revocation fine must be $300. (People v. Preston (2015) 239 Cal.App.4th 415, 428-429.) The abstract of judgment already indicates a $300 parole revocation fine was imposed.
In addition, the trial court did not impose a mandatory $40 court operations assessment or a mandatory $30 criminal conviction assessment in case No. 17FE004856. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1); see also People v. Alford (2007) 42 Cal.4th 749, 754; People v. Robinson (2012) 209 Cal.App.4th 401, 405.) The abstract of judgment indicates a $40 criminal conviction assessment and a $30 court operations assessment, but criminal conviction assessments must be imposed in the amount of $30 (Gov. Code, § 70373, subd. (a)(1)), and court operations assessments must be imposed in the amount of $40 (§ 1465.8, subd. (a)(1)).
Failure to impose mandatory fines, fees and assessments constitutes an unauthorized sentence that we may correct even in the absence of an objection or argument below. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1415.) We will modify the judgment to impose and stay a $300 parole revocation fine (§ 1202.45) in case No. 16FE015745, and a $40 court operations assessment and $30 criminal conviction assessment in case No. 17FE004856.
In addition, our review discloses a clerical error in the abstract of judgment that must be corrected. The abstract of judgment does not reflect that the trial court ordered defendant to pay the previously stayed $300 probation revocation fine (§ 1202.44) in case No. 16FE015745. Because we may order correction of a clerical error in the record at any time (People v. Mitchell (2001) 26 Cal.4th 181, 185), we will direct the trial court to make the necessary correction to the abstract of judgment.
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 and stay a $300 parole revocation fine (§ 1202.45) in case No. 16FE015745, and a $40 court operations assessment (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) in case No. 17FE004856. The judgment is affirmed as modified. The trial court is directed to prepare an amended and corrected abstract of judgment reflecting the judgment as modified and also reflecting that the trial court imposed the previously stayed $300 probation revocation fine (§ 1202.44) in case No. 16FE015745. The trial court shall forward a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
DUARTE, J.