Filed 10/23/17 P. v. Dibartolomeo CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Appointed counsel for defendant Joseph Anthony Dibartolomeo has filed an opening brief that sets forth the facts of the underlying cases and 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 (Wende).) After reviewing the entire record, we have found two sentencing errors and four clerical errors that must be corrected. We will modify the judgment to correct the sentencing errors and direct the trial court to prepare an amended abstract of judgment. Finding no other arguable error on appeal that would result in a disposition more favorable to defendant, we affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

We provide the following brief description of defendant’s cases. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

A. Case No. SF122755A

On November 5, 2013, defendant was charged by information with unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property, a motor vehicle (Pen. Code, § 496d, subd. (a)),[1] resisting, delaying, or obstructing a public officer (§ 148, subd. (a)), and failure to appear on a felony charge (§ 1320.5). It was also alleged that defendant had three prior convictions for unlawfully driving or taking a vehicle (§ 666.5) and had served five prior prison terms (§ 667.5, subd. (b)).

B. Case No. SF127734A

On October 5, 2015, defendant was charged by amended complaint with failure to appear on a felony charge (§ 1320.5) and resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1)). It was also alleged that defendant failed to appear while he was released from custody on bail or his own recognizance. (§ 12022.1.)

C. Pleas and Sentencing

On October 7, 2015, defendant entered no contest pleas and guilty pleas. In case No. SF122755A, defendant pleaded no contest to unlawful driving or taking of a vehicle and pleaded guilty to failure to appear. He also admitted he had a prior conviction for unlawful driving or taking of a vehicle and had served two prior prison terms. In case No. SF127734A, defendant pleaded guilty to failure to appear and resisting of a peace officer.

The trial court sentenced defendant to an aggregate term of six years in county jail with no period of supervision to follow. In case No. SF122755A, the court sentenced defendant to the upper term of four years on the unlawful driving or taking of a vehicle count, a concurrent term of 16 months on the failure to appear count, and two years consecutive on the prior prison term enhancements. In case No. SF127734A, the court sentenced defendant to a concurrent term of 16 months on the failure to appear count and a concurrent term of one year on the resisting a peace officer count. The trial court also imposed various fines and fees, including a $39 law enforcement fine in case No. SF122755A.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that describes the underlying cases and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we have found two sentencing errors and clerical errors that must be corrected.

At sentencing, the trial court failed to orally impose a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)) for each count of which defendant was convicted as required by statute. (People v. Sencion (2012) 211 Cal.App.4th 480, 484-485.) Instead, the trial court orally imposed $30 and $40 assessments for “each case.” Therefore, we will modify the oral pronouncement of judgment to correct this error. However, the abstracts of judgment correctly reflect that defendant must pay a total of $160 in operations assessments ($40 for each conviction in each case) and a total of $120 ($30 for each conviction in each case) in court facilities assessments; therefore, the abstracts need not be amended to correct the error in the oral pronouncement.

In addition, we conclude the trial court erred in imposing a $39 law enforcement fine. Defendant was not convicted of a qualifying offense under section 1202.5,[2] and thus to impose a fine under that statute amounted to an unauthorized sentence. (See People v. Chambers (1998) 65 Cal.App.4th 819, 823 [erroneous imposition of two restitution fines on one case].) Accordingly, we will strike the law enforcement fine and direct the trial court to prepare an amended abstract of judgment.

Finally, we have found a clerical error. In case No. SF122755A, the trial court sentenced defendant to the upper term of four years on the unlawful driving or taking of a vehicle count, a concurrent term of 16 months on the failure to appear count, and two years on the prior prison term enhancements. However, the abstract of judgment for this case does not reflect that defendant was sentenced to a consecutive term of two years for the prison priors. Instead, the abstract reflects that defendant was sentenced to a total of four years for the substantive offenses. Therefore, the abstract of judgment must be corrected to reflect that the trial court imposed an aggregate sentence of six years, including two years for the prison priors. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order abstracts of judgment corrected that do not accurately reflect oral judgments of sentencing courts].)

Because we find no other arguable error that would result in a disposition more favorable to defendant, we affirm the judgment as modified.

DISPOSITION

The oral pronouncement of judgment is modified to impose a $40 court operations assessment (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) as to each conviction in both cases. The $39 law enforcement fine imposed in case No. SF122755A is stricken. The trial court is directed to correct the abstract of judgment in case No. SF122755A to eliminate the law enforcement fine, to correctly reflect that the trial court imposed two years consecutive for the prison priors, and to increase the aggregate sentence by two years. (§ 667.5, subd. (b).) The court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

MURRAY , J.

We concur:

RAYE , P. J.

NICHOLSON , J.