P. v. Smith

Filed 9/28/06 P. v. Smith CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

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A jury convicted defendant James Steven Smith of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a) (count one)), driving with a blood-alcohol level of .08 percent or higher (Veh. Code, § 23152, subd. (b) (count two)), and driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a) (count three)). Defendant admitted to three prior convictions of driving under the influence of alcohol. The court sentenced defendant to three years for count one and stayed the sentence for count two pursuant to Penal Code section 654. The trial court imposed a $1,758.90 “penal fine,” a $50 Alcohol Abuse Education and Prevention penalty (Veh. Code, § 23645), a $200 restitution fund fine (Pen. Code, § 1202.4), and stayed a $200 parole revocation fine (Pen. Code, § 1202.45).

On appeal, defendant contends: 1) there was insufficient evidence to support the trial court’s findings regarding his Arizona driving under the influence convictions; 2) the abstract overstated the restitution and parole revocation fines; 3) the trial court failed to include a breakdown of the fines, fees and penalties in the abstract; 4) the driving under the influence fine should be stricken; and 5) there was insufficient evidence of defendant’s ability to pay the alcohol abuse penalty. We conclude that since defendant admitted the Arizona prior convictions, he is barred from challenging the trial court’s findings on the Arizona prior convictions on appeal. We remand for resentencing on the fines and fees, and affirm the rest of the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2005, about 2:30 p.m., Nevada County Sheriff’s Deputy James Bennett received an anonymous call that Sarah Rowland was being driven to the Nevada County jail in a gray S10 Blazer, by a driver who was on his second 12-pack of beer. Deputy Bennett spotted the Blazer as it passed him going the opposite direction around 3:30 p.m. Defendant was the driver, and Rowland was in the passenger seat. Deputy Bennett made a U-turn as soon as he recognized the truck, but temporarily lost sight of the Blazer. The next time he saw the Blazer, it was stopped with Rowland standing outside next to the driver’s door and defendant in the passenger seat.

Deputy Bennett approached and asked Rowland, “Why are you changing drivers?” Rowland replied, “Because he’s too drunk.” Deputy Bennett “smell[ed] a strong odor of alcoholic beverage” on defendant. Defendant’s “eyes were extremely watery and bloodshot red.” When asked to try a breath test, defendant replied “just arrest me. I know I’m drunk.”

The prosecution alleged four prior convictions for driving under the influence, one from Nevada County and three from Arizona. Defendant moved to strike the Arizona priors for lack of evidence. The trial court struck one of the Arizona priors and denied the motion with respect to the other two. Defendant then waived court trial on the prior convictions and admitted the two Arizona and one Nevada County priors.

DISCUSSION

I

Defendant claims there was insufficient evidence that his Arizona prior convictions were for driving under the influence of alcohol rather than for being in control of the vehicle while intoxicated. The claim defendant raises on appeal is the same one raised in his motion to strike in the trial court--there was insufficient evidence that the Arizona prior convictions were for driving under the influence rather than being in control of the vehicle while under the influence. The trial court denied defendant’s motion to strike the remaining prior convictions finding that defendant’s Arizona convictions were for offenses that would be violations of Vehicle Code section 23152 if they were committed in California. Defendant then admitted the prior convictions. Defendant’s admission is no different from a guilty plea to the priors. (In re Yurko (1974) 10 Cal.3d 857, 862.) Issues going to the defendant’s guilt or innocence are not cognizable on appeal after a guilty plea. (People v. Jones (1995) 10 Cal.4th 1102, 1109, overruled on another point in In re Chavez (2003) 30 Cal.4th 643, 656.) Thus defendant is barred from raising this claim on appeal. (People v. LaJocies (1981) 119 Cal.App.3d 947, 956-957.)

II

Defendant claims the abstract incorrectly states the restitution and parole revocation fines ordered by the trial court. The Attorney General concedes the issue. We accept the concession.

The trial court pronounced a restitution fine of $200 and stayed a $200 parole revocation fine at sentencing. The abstract shows a $600 restitution fine and a stayed $600 parole revocation fine. Rendition of the judgment is normally an oral pronouncement, which the abstract of judgment summarizes without addition or modification. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Where the abstract is inaccurate, it must be corrected to reflect the judgment actually imposed. (Ibid.)

Under our inherent authority to correct such clerical errors, we order the abstract of judgment be corrected to reflect the imposition of a $200 restitution fine and a stayed $200 parole revocation fine.

III

The abstract shows a “penal fine” of $1,758.90, while referring to the presentence report for a breakdown of the components. Defendant claims a remand is necessary for the trial court to specify the amounts of the fines and fees in the abstract. The Attorney General concedes the issue. We accept the concession.

“All fines and fees must be set forth in the abstract of judgment.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) A bare reference to the presentence report does not fulfill the trial court’s obligation to set forth the components of the fines and fees. On remand, the trial court must separately list in the abstract of judgment the statutory basis of every fine, fee, and penalty.

IV

The presentence report lists Health and Safety Code section 11379.6, subdivision (a) (section 11379.6) as the statutory basis for the recommended $532 “DUI fine.” Defendant claims this portion of the penal fine must be stricken since section 11379.6 establishes a punishment for manufacturing a controlled substance. The Attorney General concedes section 11379.6 does not provide a statutory basis for the fine, and asks for a remand so the trial court can determine a proper statutory basis, if any, for the fine.

As noted above, the trial court referred to the presentence report rather than listing the statutory basis for the fines and fees in the “penal fine.” The reference to section 11379.6 in the presentence report may be a clerical error, since the Vehicle Code provides for a fine of $390 to $1,000 for any conviction under Vehicle Code section 23152. (Veh. Code, § 23550, subd. (a).) On remand, the trial court shall determine a proper statutory basis for the fine, or in the alternative, strike the fine.

V

The trial court imposed a $50 Alcohol Abuse and Prevention Penalty, but did not make an express finding that defendant had the ability to pay the fine. The trial court is required to make such a finding before imposing the penalty. (Veh. Code, § 23645, subd. (c).) Defendant never objected to the trial court’s error.

Contentions not raised in the trial court generally will not be considered on appeal. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) Based on the record before us, there is nothing to suggest defense counsel could not have objected to his ability to pay, and the objection is forfeited. (Id. at pp. 1467-1469.)

DISPOSITION

The trial court is directed to amend the abstract of judgment to state the statutory basis and amounts of all penalties, fines, and assessments and to show that the restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (b) is $200, and the parole revocation fine stayed pursuant to Penal Code section 1202.45 is $200. The trial court is ordered to determine a valid statutory basis for the $532 “DUI fine,” or in the alternative, to strike the fine and to send a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

DAVIS , Acting P.J.

HULL , J.

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