Opinion
A150238
10-18-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ELDEN ROUSE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51614916)
Defendant David Elden Rouse challenges the trial court's imposition of a fine in apparent excess of the statutorily maximum fine that may be imposed under Vehicle Code section 23550. We remand to the trial court for clarification.
Further undesignated statutory references are to the Vehicle Code.
BACKGROUND
Defendant was charged by information with the following offenses: driving under the influence of alcohol (DUI) within 10 years of three other DUI offenses (§§ 23152, subd. (a); 23550) (count 1); driving with a .08 percent blood alcohol content within 10 years of three other DUI offenses (§§ 23152, subd. (b); 23550) (count 2); driving under the influence of alcohol within 10 years of a prior felony DUI offense (§§ 23152 subd. (a); 23550.5) (count 3); driving with a .08 percent blood alcohol content within 10 years of a prior felony DUI (§§ 23152, subd. (b); 23550.5) (count 4); driving when the privilege was restricted for a DUI conviction within five years of a prior offense (§ 14601.2, subds. (b), (d)(2)) (count 5); driving when the privilege was suspended or revoked for failing a blood alcohol content test within five years of a prior offense (§ 14601.5, subds. (a), (d)(2)) (count 6); and driving when the privilege was suspended or revoked after a prior offense (§ 14601.1, subd. (b)(2)) (count 7).
The trial court granted defendant's motion to bifurcate the trial on counts 5, 6, and 7 and on the allegations that he suffered prior DUI convictions for counts 1, 2, 3, and 4. On December 7, 2016, the jury found defendant guilty of counts 1 through 4. The trial court then granted the prosecutor's motion to dismiss counts 5, 6, and 7, and after a court trial on the prior convictions, found two of the alleged prior four convictions to be true. Because defendant was convicted of only two prior convictions, and not three, it dismissed counts 1 and 2 (which had been based on the allegation of three prior convictions).
Because the facts have no relevance to the appeal, we recite them briefly, as did the Attorney General, from the probation officer's report. "On the afternoon of [July 9, 2015], the San Ramon Valley Boulevard Safeway store manager advised police that his employee, Rouse, had been sent home for being drunk. However, instead of being driven home, Rouse drove away in his personal vehicle. [¶] Shortly thereafter, police contacted Rouse outside of his San Ramon, California residence. At the time he displayed object[ive] symptoms of alcohol intoxication, ranging from red/watery eyes to the smell of alcohol emanating from his breath. Moreover, police were cognizant that Rouse was active to felony probation for a DUI conviction with a no alcohol clause. In addition, Rouse's driver['s] license was in suspended/revoked status, and . . . the officer had probable cause to believe that Rouse drove himself home. A DUI investigation ensued, which included field sobriety tests." A preliminary alcohol screening test showed defendant's blood-alcohol content was .278 and .257 percent. --------
At sentencing on December 30, 2016, the trial court sentenced defendant to two years in state prison on count 3 for driving under the influence, and imposed and stayed the sentence for count 4 under Penal Code section 654. The court imposed various fines and fees. After these had been imposed, the clerk stated to the court, "And I'm sorry, I didn't hear you say the DUI fine of $1749." The court responded by stating "there is a fine of $1749. Thank you." The abstract of judgment shows a fine of $1,749 pursuant to section 23550.
DISCUSSION
The sole issue on appeal is the imposition of the $1,749 fine. Section 23550 sets a maximum fine of "not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000)." (§ 23550, subd. (a).) There is nothing in the record to explain the basis for imposing a fine of $1,749 pursuant to section 23550.
Defendant contends that we should simply reduce the fine to $1,000, the statutory maximum fine under section 23550, and order the clerk to correct the abstract of judgment. The Attorney General urges us to remand to the trial court to clarify the basis of the DUI fine imposed pursuant to section 23550, for two reasons. First, it is unclear what fine the court intended to impose within the range permitted under section 23550. Second, it is unclear whether the court intended to include in the "DUI fine" an additional penalty pursuant to Government Code section 76000, subdivision (a)(1), which provides that "[e]xcept as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part often dollars ($10), upon every fine, penalty or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." Further, as the Attorney General points out, Government Code section 76000, subdivision (e) describes the circumstances, on a county by county basis, where the $7 additional penalty authorized by subdivision (a) is "reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by Section 76100 as of January 1, 1998, when the money in that fund is transferred to the state under Section 70402." Contra Costa County is listed in the table that follows Government Code section 76000, subdivision (e) as imposing a penalty of $5.00. (See People v. Soto (2016) 245 Cal.App.4th 1219, 1228-1230 [discussing penalty assessments under Government Code Section 76000].)
We agree that remand is appropriate so that the trial court can clarify what fine is imposed, and the manner in which the fine was calculated. (See People v. High (2004) 119 Cal.App.4th 1192, 1201 [remanding to trial court to "separately list, with the statutory basis, all fines, fees and penalties imposed"].)
DISPOSITION
The matter is remanded for further proceedings consistent with this opinion, including the preparation of an amended abstract of judgment which shall be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.