Filed 7/15/22 P. v. Jones 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Appointed counsel for defendant Shawn Jones has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).)

After examining the record, we will modify the judgment to correct a minor sentencing error. Finding no other errors that are favorable to defendant, we will affirm the judgment as modified.

I. BACKGROUND

While searching defendant’s car, deputy sheriffs found a handgun and ammunition. Defendant had been previously convicted of a felony. The prosecution charged defendant with one count of unlawful possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1))[1] and one count of unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1)).

Defendant filed a motion to suppress the evidence obtained in the detention and search of his car under section 1538.5. At the hearing on the motion, a deputy sheriff testified he stopped defendant’s car because the car did not have a front license plate, a violation of Vehicle Code section 5200, subdivision (a). While speaking with defendant, he saw an open beer container in the center console and asked defendant to step out of the car. Defendant first refused to get out of the car, but relented after the deputy opened the door and summoned additional deputies. While the deputy was detaining defendant, the front seat passenger got out of the vehicle and attempted to come to the driver’s side of the vehicle. Two other deputies arrived and one searched the car. During the search, the deputy found a box of ammunition in the driver side door panel, a bag of ammunition in the center console, and a loaded handgun on the floorboard behind the passenger seat. The trial court denied the motion.

Defendant then pled no contest to unlawful possession of a firearm and the prosecution dismissed the other count.[2] The trial court suspended imposition of sentence and placed defendant on a two-year term of formal probation. The court imposed a $300 restitution fine (§ 1202.4), a suspended $300 probation revocation fine (§ 1202.44), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373).

Defendant filed a notice of appeal, indicating the appeal was based on the denial of a motion to suppress evidence.

II. DISCUSSION

Appointed counsel filed an opening brief setting forth the facts of the case and asking 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 of the date of filing the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.

Our review of the record has found that the $30 criminal conviction assessment (Gov. Code, § 70373) is included as a term of probation. This assessment is not punishment and cannot be included as a term of probation; it should have been separately ordered. (People v. Kim (2011) 193 Cal.App.4th 836, 842-843.) We will modify the judgment to reflect that this assessment is not a condition of probation.[3]

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

III. DISPOSITION

The judgment is modified to reflect the $30 criminal conviction assessment under Government Code section 70373 was separately imposed and is not a condition of probation. As modified, the judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

MAURO, J.

[1] Undesignated statutory references are to the Penal Code.

[2] Defendant simultaneously entered pleas in two other trailing cases, which are not at issue in this appeal.

[3] The $40 court operations assessment (§ 1465.8, subd. (a)(1)), which the court also imposed, correctly includes a disclaimer that it “is a court ordered fee[,] not a condition of probation.”