Opinion
C086342
10-05-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EDWARD SWIM, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17F4044)
Appointed counsel for defendant Michael Edward Swim 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.) We conclude the trial court erred in imposing various fines and fees, and shall modify the judgment to impose the proper amounts. We affirm the judgment as so modified.
BACKGROUND
We provide the following brief description of the facts and procedural history of the cases. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In July 2017, while defendant was subject to a restraining order directing him not to contact his wife, he harassed and threatened her via text messages, and then drove his vehicle head-on toward hers in an attempt to run her off the road. Their children were in his wife's car at the time.
An August 2017 complaint in case No. 17F4044 charged defendant with stalking (Pen. Code, § 646.9, subd. (a)), criminal threats (§ 422), assault with a deadly weapon, a vehicle (§ 245, subd. (a)(1)), five felony counts of child abuse (§ 273a, subd. (a)), and misdemeanor violation of a court order (§ 273.6, subd. (a)). The complaint further alleged that defendant had a prior strike (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)).
Undesignated statutory references are to the Penal Code.
In September 2017, defendant pleaded guilty to stalking, assault with a deadly weapon, and one count of felony child abuse. He admitted the enhancements and also admitted violations of probation in two other cases, case No. 16F2616 (corporal injury to a spouse and criminal threats) and case No. 15T8142 (reckless driving).
Item No. 11 on defendant's plea form stated: "My privilege to operate a motor vehicle in the State of California may be suspended or revoked for 2 years, ___ months. I may also be declared to be a habitual traffic offender." Defendant initialed item No. 11.
Defendant was released from custody with a Cruz waiver. Under the terms of the plea agreement, if defendant returned to court as ordered he would be permitted to withdraw his guilty pleas to the stalking and child abuse offenses and be sentenced to nine years in state prison; if he failed to appear as ordered he would be sentenced to 16 years four months in state prison.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz). --------
Defendant failed to appear at the date set for sentencing, and a warrant was issued for his arrest. He was later apprehended and the date for sentencing was reset. Prior to sentencing, defendant informed the court that he wished to withdraw his guilty plea. He filed a motion to withdraw, claiming that his counsel incorrectly advised him that pleading guilty to the assault with a deadly weapon by use of a vehicle charge would result in a two-year driver's license suspension instead of the lifetime revocation mandated by Vehicle Code section 13351.5. Had he been properly advised of the lifetime suspension, he would not have pleaded guilty to the charges.
At the hearing on the motion to withdraw, the court stated it was inclined to change the complaint's description of the weapon used to commit the assault so as to eliminate the possibility of any driver's license suspension or revocation. With the prosecution's consent, and over defendant's objection, the court corrected the charge by interlineation to reflect that the assault was committed with a " 'large metal object' " rather than a "vehicle," and denied defendant's motion without allowing him to testify.
Pursuant to the terms of the Cruz waiver and the plea agreement, defendant was sentenced to an aggregate term of 16 years four months in state prison calculated as follows: the midterm of four years for the child abuse offense, one year (one-third the midterm) for the assault with a deadly weapon offense, and eight months (one-third the midterm) for the stalking offense, all of which were doubled for the strike prior, plus five years for the prior serious felony conviction. He was awarded 123 days of actual credit and 122 days of conduct credit.
Based on defendant's guilty pleas, the court revoked probation in case No. 16F2616 and case No. 15T8142. Defendant was sentenced to concurrent terms of three years for the corporal injury to a spouse offense and two years for the criminal threats offense in case No. 16F2616 and was awarded 209 days of actual credit and 208 days of conduct credit in that case. He was sentenced to a concurrent term of 90 days in jail for the reckless driving offense in case No. 15T8142.
The court imposed a $900 restitution fine (§ 1202.4) and a $900 parole revocation restitution fine (§ 1202.45), which was suspended unless parole was revoked. The court also imposed a $120 court operations assessment (§ 1465.8), and a $90 criminal conviction assessment (Gov. Code, § 70373), and imposed and stayed three felony fines of $780. 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 elapsed, and we have received no communication from defendant.
After reviewing the record, we have found several errors in the judgment regarding the fines and fees imposed in defendant's cases. We shall modify the judgment to correct the sentencing errors.
Although the trial court orally pronounced a $120 court operations assessment, $40 for each of defendant's convictions in case No. 17F4044, the abstract of judgment lists the fee amount as $200. Likewise, the court orally pronounced a $90 criminal conviction assessment, $30 for each of defendant's convictions in case No. 17F4044, but the abstract of judgment lists the amount as $150. It appears the trial court did not orally impose the mandatory fees for each of defendant's two convictions in case No. 16F2616. (§ 1465.8, subd. (a)(1) ["To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense . . . ."]; Gov. Code, § 70373, subd. (a)(1) ["To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . in the amount of thirty dollars ($30) for each misdemeanor or felony . . . ."].) We shall modify the judgment to impose a $200 court operations assessment under section 1465.8 and a $150 criminal conviction assessment under Government Code section 70373 to properly reflect defendant's five convictions. Because the abstract of judgment correctly reflects the proper court operations assessment and criminal conviction assessment amounts, no amendment to the abstract is necessary.
Prior to being sentenced, defendant was on probation in case No. 16F2616. The court revoked probation in that case and sentenced defendant to state prison for the domestic violence and criminal threats charges he pleaded to in that case. The abstract of judgment lists a $1,200 restitution fine in case No. 16F2616 imposed under section 1202.4, an identical $1,200 probation revocation restitution fine under section 1202.44, which was now due since probation had been revoked, and imposed a matching $1,200 parole revocation restitution fine under section 1202.45, which was suspended unless parole was revoked. The trial court, however, did not mention these restitution fines in its oral pronouncement of judgment.
Because the court likely imposed the $1,200 restitution fine and identical $1,200 probation revocation restitution fine when defendant was first placed on probation in case No. 16F2616, and the court had a mandatory duty to lift the stay on the probation revocation restitution fine once probation was revoked and to impose an identical $1,200 parole revocation restitution fine when defendant was sentenced to state prison (§ 1202.45), we shall modify the judgment to reflect the $1,200 restitution fines. (People v. Holman (2013) 214 Cal.App.4th 1438, 1469 [the trial court's duty to impose a mandatory order for a restitution fine is triggered by conviction; a mandatory restitution fine survives revocation of probation because it is tied to the fact of conviction].) As the abstract of judgment already reflects the restitution fines, the abstract need not be amended.
DISPOSITION
The judgment is modified to impose a $200 court operations assessment under section 1465.8, and a $150 criminal conviction assessment under Government Code section 70373. The judgment is further modified to reflect a $1,200 restitution fine in case No. 16F2616 pursuant to section 1202.4, an identical $1,200 probation revocation restitution fine under section 1202.44, which is due as probation has been revoked, and a $1,200 parole revocation restitution fine, suspended unless parole is revoked. As so modified, the judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Robie, J. /s/_________
Butz, J.