Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS082111
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
After entering into a plea agreement, defendant Jose Luis Ruvalcaba pleaded guilty to one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a) and one count of lewd act upon a child (§ 288, subd. (a)). He also admitted the allegations that, as to each count, he engaged in substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)) and, as to the second count, he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court imposed a stipulated total term of 21 years in the state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant submitted a letter that we have considered.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, 40 Cal.4th at page 110, we provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.”
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Our summary of the facts is taken from the probation report filed on December 6, 2010.
In 2002, defendant moved into the home of the 13-year-old victim, Jane Doe (hereafter referred to as J.), to live with J.’s mother. Defendant was initially “nice and polite, ” but a few months later he began to touch J. inappropriately. He would frequently hug J., slap her on the buttocks, and grab her breast although she repeatedly told him to stop.
Because the record does not reflect a specific order permitting the victim to be referred to as Jane Doe (see § 293.5), we will use the initial “J.” when referring to her.
The first time that defendant “forced himself” on J. was in December 2002. At the time, J. was in her bedroom with the door locked. Defendant knocked and J. opened the door. He walked in and immediately began to assault J. by turning her around so her back was towards him and putting his hands down the front of her pajama pants. Defendant then pushed J. onto the bed, pulled her pants down, and inserted his penis in her anus. He eventually switched to vaginal intercourse and ejaculated inside J.
The next incident occurred in February 2003. After summoning J. to his bedroom, defendant told her, “It won’t hurt.” He then pulled J.’s pants down and had vaginal intercourse with her. In June 2003, J. discovered that she was pregnant. She told police that she had been raped by a stranger at the mall because she did not want to disclose the identity of the baby’s father. After July 2003, defendant had intercourse with J. whenever he was alone with her, which was approximately 10 times before the baby was born. Defendant resumed raping J. about six weeks after the baby’s birth. He raped J. once a week, including anal intercourse, until August 2007.
Defendant threatened to commit suicide in August 2007 when J. told him that if he did not stop raping her, she was going to tell her mother. Defendant raped J. for the last time in September 2007 after J. informed him she was no longer using birth control.
In August 2008, J. told her mother that defendant was the father of J.’s child. The matter was reported to the police, who confirmed that defendant had been living with J.’s mother since January 2002. When defendant was interviewed by the police, he admitted to having anal and vaginal intercourse with J. for a period of nearly five years, from December 2002 through September 2007, and that he had inserted his fingers into her vagina. He also admitted that he was the father of J.’s child. However, defendant claimed that he had never forced J. to do anything.
B. Procedural Background
The complaint filed on August 11, 2008, charged defendant with six counts of lewd acts on a child under the age of 14 during the period of December 1, 2002, through March 1, 2004 (§ 288, subd. (a); counts 1-6) and four counts of lewd act upon a child under the age of 14 who was at least 10 years younger than defendant during the period of March 13, 2004, through September 1, 2007 (§ 288, subd. (c)(1); counts 7-10). The complaint also included the allegations that, as to each count, defendant had engaged in substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)) plus the additional allegation, as to count 2, that defendant had personally inflicted great bodily injury on J. (§ 12022.7 (a)). The victim in all 10 counts was J.
On May 20, 2009, defendant waived the preliminary examination and was held to answer on all 10 counts. The information filed on May 28, 2009, included the same counts and special allegations as the complaint.
The prosecutor subsequently filed a motion to compel defendant to submit DNA samples for the purpose of determining whether defendant was the father of J.’s child. The trial court granted the motion and on January 8, 2010, issued an order allowing the collection of DNA evidence from defendant in a medically approved manner.
On November 5, 2010, an amended information was filed that included two counts, continuous sexual abuse of a child under the age of 14 during the period of December 1, 2002, through March 1, 2003 (§ 288.5, subd. (a); count 1) and lewd act upon a child under the age of 14 during the period of March 2, 2003, through March 12, 2003 (§ 288, subd. (a); count 2). The amended information also included the allegations that, as to both counts, defendant had engaged in substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)) and, as to count 2, the allegation that defendant had personally inflicted great bodily injury on J. (§ 12022.7, subd. (a)).
Defendant entered into a plea agreement on November 5, 2010, in which he agreed to plead guilty to both counts and the special allegations in the amended information in exchange for a stipulated state prison sentence of 21 years. Before accepting defendant’s guilty pleas, the trial court determined that defendant had made a knowing, intelligent, and voluntary waiver of his constitutional rights and there was a factual basis for the plea.
Although the minute order for November 5, 2010, states that defendant pleaded “nolo contendre” to each count in the amended information, the reporter’s transcript for the trial court proceedings of November 5, 2010, reflects that defendant pleaded guilty.
The sentencing hearing was held on December 15, 2010. The trial court imposed a total term of 21 years, in accordance with the plea agreement, composed of the upper term of 16 years on count 1 (§ 288.5, subd. (a)) and two years, one-third the middle term, on count 2 (§ 288, subd. (a)), plus a consecutive three year term pursuant to the allegation of great bodily injury (§ 12022.7, subd. (a)).
The court also ordered defendant to pay a $4,200 restitution fine (§ 1202.4, subd. (b)), suspended the imposition of a $4,200 parole revocation restitution fine (§ 1202.45), and additionally ordered defendant to pay a court security fee of $80 (§ 1465.8, subd. (a)(1)), a court facilities assessment fee of $60 (Gov. Code, § 70373), a sex offender fine of $1,200 (§ 290.3), and victim restitution in an amount to be determined. Defendant was ordered to register as a sex offender (§ 290) and to have no contact with J. while in he was in the Department of Corrections. Defendant was allowed to have contact with J.’s child “through Family Court.”
Defendant filed a timely notice of appeal on February 10, 2011, in which he stated that his appeal was based upon the grounds that the trial court had committed sentencing error.
III. DISCUSSION
This court received a handwritten letter from defendant on May 3, 2011. We understand defendant to argue that his trial counsel was ineffective in failing to obtain a plea agreement with a state prison term of less than 21 years. Defendant also states that he agreed to the stipulated sentence of 21 years because he was afraid that if he went to trial he would receive a sentence of 29 years to life.
Having carefully reviewed the entire record and defendant’s letter, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.) The general rule is that an appellate court should not find ineffective assistance of counsel unless all facts relevant to that claim have been developed in the record on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) We have, however, noted two trial court errors that are capable of correction by this court. (People v. Wrice (1995) 38 Cal.App.4th 767, 773.)
A. Presentence Custody Credits
First, the trial court made a computational error in calculating presentence custody credits under section 2933.1, subdivision (a). That section provides that “any person convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” (§ 2933.1, subd. (a).) (People v. Ramos (1996) 50 Cal.App.4th 810, 815.) The offenses listed in section 667.5, subdivision (c), include continuous sexual abuse of a child in violation of section 288.5. (§ 667.5, subd. (c)(16).)
The trial court adopted the probation officer’s calculation of presentence custody credits under section 2933.1, subdivision (a), as follows: “Credit for time served of 859 days plus 125 days good and work time, for a total of 984 days.” By our calculation, 15 percent of 859 days is 128.85 days, which we round down to 128 days. (People v. Ramos, supra, 50 Cal.App.4th at p. 816.) Defendant is therefore entitled to an additional three days of conduct credit, which results in total presentence custody credits of 987 days (859 days plus 128 days equals 987 days). We will direct the trial court to prepare an amended abstract of judgment reflecting the correct amount of presentence custody credits.
B. Section 290.3 Fine and Penalty Assessments
Second, the trial court imposed a sex offender fine under section 290.3 of $1,200 without reciting the penalty assessments added to the base fine.
Section 290.3 currently provides that every person convicted of an offense specified in section 290 must pay “a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction....” Lewd conduct (§ 288) and continuous sexual abuse of a child (§ 288.5) are crimes listed in section 290, subdivision (c).
Prior to September 2006, the fine under section 290.3 was $200 for the first conviction and $300 for each subsequent conviction. (Stats. 1994, ch. 866, § 1; Stats. 1994, ch. 867, § 3.5; Stats. 2006, ch. 337, §§ 18, 62, effective Sept. 20, 2006.) Because the fine in section 290.3 is punitive on its face, to avoid the prohibition against ex post facto laws (People v. Alford (2007) 42 Cal.4th 749, 755), the amount of the fine must be determined as of the date of the offense.
A sex offender fine under section 290.3 fine is subject to several mandatory penalty assessments, as provided by section 1464, subdivision (a); section 1465.7, subdivision (a); Government Code section 76000, subdivision (a)(1); and Government Code section 70372, subdivision (a)(1). (People v. Valenzuela (2009) 172, Cal.App.4th 1246, 1249.) The abstract of judgment must “separately list, with the statutory basis, all fines, fees and penalties imposed.” (People v. High (2004) 119 Cal.App.4th 1192, 1201; People v. Eddards (2008) 162 Cal.App.4th 712, 717.) “Although... a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts.” (People v. High, supra, at p. 1200.)
Here, the abstract of judgment states only that defendant is to pay a “$1,200 fine pursuant to [section] 290.3, ” and does not separately list the amount of the base fine or the penalty assessments that were included in the $1,200 total. The penalty assessments are also not specified in the record on appeal. We will therefore direct the trial court to prepare an amended abstract of judgment that separately lists, with the statutory basis, each penalty assessment and the base fine included in the $1,200 sex offender fine imposed under section 290.3.
IV. DISPOSITION
The trial court is directed to prepare an amended abstract of judgment that reflects 859 days of actual custody credit and 128 days of conduct credit, for a total award of 987 days of presentence custody credit. The trial court is also directed to prepare an amended abstract of judgment that separately lists, with the statutory basis, each penalty assessment and the base fine included in the $1,200 fine imposed under Penal Code section 290.3. The clerk of the superior court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment, as modified, is affirmed.
WE CONCUR: DUFFY, J., WALSH, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.