P. v. Rich

Filed 10/26/06 P. v. Rich 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Butte)

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Defendant Brandy May Rich entered a negotiated plea of no contest to second degree burglary. (Pen. Code, § 459; further undesignated statutory references are to this code.) Defendant was sentenced to state prison for two years, and ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a $200 restitution fine stayed pending successful completion of parole (§ 1202.45), a $35 theft fine (§ 1202.5, subd. (a)), which included various penalty assessments and fees, and a $20 security surcharge (§ 1465.8).

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the 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 received no communication from defendant.

The abstract of judgment does not include the required specification of the theft fine, along with the penalties, assessments and fees, which necessitates correction. As we explained in People v. High (2004) 119 Cal.App.4th 1192, 1200: “All fines and fees must be set forth in the abstract of judgment. [Citations.] . . . . If the abstract does not specify the amount of each fine, the Department of Corrections [and Rehabilitation] cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (Pen. Code, § 1205, subd. (c).) Thus, even where the Department of Corrections [and Rehabilitation] has no statutory obligation to collect a particular fee, . . . the fee must be included in the abstract of judgment.”

The trial court imposed a theft fine of $35, which actually consisted of a $10 theft fine (§ 1202.5, subd. (a)), a 20 percent court surcharge ($2) (§ 1465.7, subd. (a)), a 100 percent state penalty assessment ($10) (§ 1464), a 10 percent penalty ($1) DNA Identification Fund fee (Gov. Code, § 76104.6), a 70 percent ($7) county penalty assessment (Gov. Code, § 76000), and a 50 percent ($5) state court facilities construction fund penalty (Gov. Code, § 70372). These items should be specified in the abstract of judgment. We will direct that it be corrected accordingly.

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

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to include the imposition of the theft fine and corresponding assessments and fees as follows: a $10 theft fine (§ 1202.5, subd. (a)), a $10 state penalty assessment (§ 1464), a $7 county penalty assessment (Gov. Code, § 76000), a $5 state court facilities construction fund fine/assessment (Gov. Code, § 70372), a $1 DNA Identification Fund fee (Gov. Code, § 76104.6), and a $2 court surcharge. (§ 1465.7, subd. (a).) The trial court is further

directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

NICHOLSON , Acting P.J.

We concur:

BUTZ , J.

CANTIL-SAKAUYE , J.

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