P. v. Weaver

Filed 9/11/07 P. v. Weaver CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Modoc)

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After he kicked in a hotel room door and beat an acquaintance of his fiance, defendant Donald Gene Weaver entered a negotiated guilty plea to charges he committed first degree burglary and felony assault (Pen. Code, 459/460, subd. (a), 245, subd. (a)(1); additional statutory references are to the Penal Code).

His sole contention on appeal is that the trial court erred in failing to recite in detail the statutory basis for the restitution fine and probation revocation fines it imposed. We disagree.

At sentencing, the trial court first indicated its intention to impose an $800 restitution fine and a second $800 restitution fine under section 1202.45. Moments later, the prosecutor said, I would bring to the courts attention on the State Restitution Fine the Court ordered $800, and I think the standard--is it not $220 per felony case as opposed to $200? And if that is the case, the fine would be $880 as opposed to $800. The court ordered [an] $800 restitution fine. And I believe the restitution amounts currently being imposed are $220. The court responded, That is correct. And Ill change that number to $880 for both the original restitution fine and the parole revocation restitution fine.

The abstract of judgment reflects an $880 restitution fine imposed pursuant to section 1202.4, subdivision (b); and an $880 restitution fine (suspended unless parole is revoked) pursuant to section 1202.45.

This court has held that the trial court at sentencing must separately state all fines, fees, and penalties imposed, with the statutory basis specified for each; and the abstract of judgment must reflect these matters. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) This obligation is intended to ensure that the Department of Corrections can fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. (Ibid.) Contrary to the Peoples argument here, that duty is not forfeited by the defendants failure to object. Although we recognize that a detailed recitation of all of the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. (Ibid.)

Defendant hypothesizes that the increase in the restitution fine from $800 to $880 may reflect the trial courts attempt[] to place a ten-percent administrative surcharge on the standard restitution fine pursuant to section 1202.4, subdivision (l). Subdivision (l) allows the board of supervisors of any county, in its discretion, to impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court, the proceeds of which shall be deposited in the general fund of the county.

Defendant asks us to remand the matter for resentencing because [a]ll parties would be better served if the trial courts order were modified to specify how much of the fine is the statutory fine, and how much (if any) is an administrative surcharge.

Remand is unnecessary. At sentencing, the trial court separately stated its intention to impose a single restitution fine. And, although it did not identify the statutory basis as 1202.4, subdivision (b), its reference to a parole revocation restitution fine authorized by section 1202.45 compels the conclusion that it imposed the original restitution fine under section 1202.4, subdivision (b). Section 1202.45 states: In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. The abstract of judgment so reflects. Nowhere does the trial court suggest that any part of the amount assessed as a restitution fine was actually an administrative fee imposed pursuant to section 1202.4, subdivision (l).

There was no ambiguity; the courts order is not unclear. It apparently intended to assess $880 under section 1202.4, subdivision (b), as the abstract of judgment indicates, for the benefit of the state restitution fund.

DISPOSITION

The judgment is affirmed.

HULL, J.

We concur:

SIMS , Acting P.J.

BUTZ , J.

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