Filed 10/10/18 P. v. Ibarra CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

Appointed counsel for defendant Jesus Javier Ibarra has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We shall order the modification of the sentence to include the mandatory parole revocation fine included within the abstract of judgment, but not included by the trial court in its oral pronouncement. We shall also order the amendment of the abstract of judgment to include the county collection fee imposed by the court, but not included in the abstract. We otherwise affirm the judgment.

BACKGROUND

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

Defendant was charged with manufacture or attempted manufacture of a prohibited weapon while in confinement (Pen. Code, § 4502, subd. (b)),[1] with sentencing enhancement allegations of a prior serious felony (§ 667, subds. (c) & (e)(1)) and a prior prison term (§ 667.5, subd. (b)). He pleaded no contest to the section 4502, subdivision (b) charge and prior serious felony enhancement in exchange for the dismissal of the prior prison term enhancement.

The factual basis for his plea was that “[o]n May 4th, 2017[,] [i]n Yolo County Jail, defendant was discovered having a metal bolt in his possession. He was attempting to grind down the end of it into a point creating a weapon in jail. [¶] . . . [¶] There was a metal plate on the wall and he was scratching it back and forth along the plate filing it into a tip.”

According to the terms of the plea bargain, the trial court sentenced defendant to four years for the section 4502, subdivision (b) violation (the two-year middle term doubled to four years based on the prior serious felony enhancement). The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)) with a restitution collection fee of $30 (§ 1202.4, subd. (l)). The court further ordered defendant to pay a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)) and a $40 court operations assessment (§ 1465.8). Defendant waived the right to have the court calculate his custody credits, instead agreeing to have the Department of Corrections and Rehabilitation calculate those credits.

Defendant’s request for permission to file a late notice of appeal under the constructive filing doctrine was granted, and defendant thereafter filed a notice of appeal and was granted a certificate of probable cause.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to 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 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 find no arguable error that would result in a disposition more favorable to defendant.

However, our review of the record has disclosed a parole revocation fine (§ 1202.45) in the amount of $300 reflected in the abstract of judgment that was not imposed by the trial court at sentencing. The section 1202.45 fine is mandatory and must accompany the section 1202.4, subdivision (b) fine in an amount equal to the restitution fine imposed. (People v. Smith (2001) 24 Cal.4th 849, 853 [parole revocation fine must be imposed in an amount equal to the restitution fine].) We can and will modify defendant’s sentence to correct this error. (Id. at pp. 852-854.) We also order the correction of the abstract of judgment to include the $30 restitution collection fee associated with the $300 restitution fine (§ 1202.4, subd. (l)), which was imposed by the trial court at sentencing, but is not reflected on the current abstract.

DISPOSITION

Defendant’s sentence is modified to include a mandatory parole revocation fine (§ 1202.45) of $300 that was included within the abstract of judgment, but not provided for by the trial court in its oral pronouncement. This fine shall be suspended until parole is revoked. The trial court shall amend the abstract of judgment to include the $30 restitution collection fee (§ 1202.4, subd. (l)) imposed by the trial court, and the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.

/s/
Blease, Acting P. J.

We concur:

/s/
Robie, J.

/s/
Butz, J.