Filed 10/16/17 P. v. Acklin CA3

Received for posting 10/17/17

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Appointed counsel for defendant Andrew David Acklin, Jr., asks 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 modify the judgment to strike the unauthorized fine imposed under Penal Code section 672[1] and all surcharges, fees, and assessments generated thereby, and otherwise affirm.

BACKGROUND

In October 2015, defendant and his wife, Jane Doe, lived together with their eight-year-old child. One night, they argued throughout the night and into the morning. The wife left the house but returned when defendant told her he was calm. Defendant threw her to the ground and began strangling her. He picked her up, threw her into the bedroom and punched her in the face, stomach, and back. He pulled a knife out of his pocket and told her she was “lucky it wasn’t your face.” The wife then realized her hand was cut. She asked if she could clean her hand and defendant told her to shower. As she got dressed, he threw her to the bed and raped her. Ultimately she was able to escape the house and get assistance from a neighbor. There had been numerous prior incidents of domestic violence and defendant was the subject of a domestic violence restraining order.

An information charged defendant with spousal rape (§ 262, subd. (a)(1), count 1), assault with a deadly weapon (a knife) (§ 245, subd. (a)(1), count 2), three counts of injuring a spouse or child’s parent after a prior conviction (§ 273.5, subd. (f)(1), counts 3, 4, and 5), making a criminal threat (§ 422, subd. (a), count 6), false imprisonment by force or violence (§ 236, count 7), vandalism with damages in excess of $400 (§ 594, subd. (a), count 8), stalking (§ 646.9, subd. (b), count 9), one count of misdemeanor violation of a domestic relations restraining order that results in physical injury (§ 273.6, subd. (b), count 10), one count of misdemeanor violation of a domestic relations restraining order (§ 273.6, subd. (a), count 11), and misdemeanor child endangerment (§ 273a, subd. (b), count 12). The information also alleged that defendant personally inflicted great bodily injury on the victim in the commission of count three (§ 12022.7, subd. (e)) and had previously served a prior prison term (§ 667.5, subd. (b)).

Defendant pleaded guilty to injuring a spouse or child’s parent after a prior conviction (count 4) and a misdemeanor violation of a domestic relations court restraining order with physical injury (count 10). Defendant also admitted the prior prison term enhancement. The People agreed to dismiss the remaining charges and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 and agreed they would not file any additional charges alleging violations of the domestic violence restraining order for violations that predated the pleas.

The trial court sentenced defendant to an aggregate term of six years in prison, and awarded him 776 days of presentence custody credit. The trial court also imposed various fines and fees, incorporating by reference a number of fines and fees recommended in the presentence report, including (as relevant here) a $100 fine per section 672 and six related surcharges, fees and assessments totaling an additional $290. (Pen. Code, §§ 1464, 1465.7; Gov. Code, §§ 70372, subd. (a), 76000, 76104.6, 76104.7.) The trial court also reissued the criminal protective order and issued a 10-year no-contact order. Defendant did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)

DISCUSSION

Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of the filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.

Our independent review of the record has revealed that the trial court imposed an unauthorized fine on count 10. Count 10 charged a violation of a protective order resulting in injury; the charged statute provides that a violation is punishable by, in addition to imprisonment, “a fine of not more than two thousand dollars.” (§ 273.6, subd. (b).) Section 672 provides in relevant part: “Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors . . . .” (Italics added.)

“The operative language of section 672 is the second phrase of the first sentence, ‘in relation to which no fine is herein prescribed.’ ” (People v. Breazell (2002) 104 Cal.App.4th 298, 302.) “The language used in section 672 demonstrates that it was meant to provide a fine for offenses for which another statute did not impose a fine. In other words, this is a catchall provision allowing a fine to be imposed for every crime, even if the statute criminalizing the conduct did not specifically authorize a fine. The limiting provision was meant to ensure that a fine pursuant to section 672 would not be imposed if another statute authorized a fine for the offense.” (Id. at p. 304.)

Because a separate fine for defendant’s offense was authorized by the statute of conviction on count 10, the imposition of a fine pursuant to section 672 on that same count was unauthorized and must be stricken. (People v. Breazell, supra, 104 Cal.App.4th at p. 304.) We will modify the judgment to strike the fine and the surcharges, fees, and assessments generated thereby.

Having undertaken an examination of the entire record, we find no additional arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to strike the unauthorized fine and the surcharges, fees and assessments generated thereby as described in this opinion. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.

/s/

Duarte, J.

We concur:

/s/

Mauro, Acting P. J.

/s/

Murray, J.