People v. Clark CA3 ( 2013 )

Filed 2/27/13 P. v. Clark 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
----
THE PEOPLE, C072130
Plaintiff and Respondent, (Super. Ct. No. 12F00337)
v.
CHARVONE LAMONT CLARK,
Defendant and Appellant.
Appointed counsel for defendant Charvone Lamont Clark 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 (Wende).) Although we find no errors which
favor defendant, we must remand for amendment of the abstract of judgment.
BACKGROUND
On January 10, 2012, defendant entered his victims’ home and, acting in concert
with two or more people, pointed a firearm at multiple victims and stole a safe.
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The People filed an amended information accusing defendant of kidnapping to
commit robbery (counts 1 & 2; Pen. Code,1 § 209, subd. (b)(1)), first degree robbery
(counts 3, 4, & 6; § 211), and assault with a firearm (count 5; § 245, subd. (a)(2)). As to
count 4, it was alleged that defendant voluntarily acted in concert with two or more other
persons. (§ 213, subd. (a).) As to counts 1 through 4, it was alleged that defendant
personally used a firearm. (§ 12022.53, subd. (b).) It was further alleged that defendant
had three prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12.)
Defendant pled no contest to count 4 and admitted the firearm enhancement on
that count and one prior strike, in return for a stipulated sentence of 28 years in state
prison and the dismissal of the remaining counts and allegations with a Harvey2 waiver
for restitution. Defendant waived referral to probation.
The trial court sentenced defendant to the stipulated 28-year term, consisting of
the upper term of nine years on count 4, doubled for the strike, plus 10 years consecutive
for the firearm use enhancement. The court awarded 216 days of credit for actual
custody, plus 31 days of conduct credit (§ 2933.1), for a total of 247 days of presentence
custody credit. The court imposed a $6,720 restitution fine (§ 1202.4, subd. (b)) and
reserved determination of victim restitution. The court also imposed a $10 crime
prevention fine (§ 1202.5), a $340.01 main jail booking fee (Gov. Code, § 29550.1),
a $62.09 jail classification fee (Gov. Code, § 29550.2), a $40 court operations assessment
(§ 1465.8), and a $30 court facility fee (Gov. Code, § 70373).
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and asks us to
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
1 Further undesignated statutory references are to the Penal Code.
2 People v. Harvey (1979) 25 Cal.3d 754.
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436.) Counsel advised defendant of the right to file a supplemental brief within 30 days
of the date of filing of the opening brief. More than 30 days have elapsed, and we have
received no communication from defendant. We have undertaken an examination of the
entire record and find no arguable error that would result in a disposition more favorable
to defendant. We do, however, find two errors that require the trial court to amend the
abstract of judgment.
First, the trial court failed to impose a suspended parole revocation restitution fine
pursuant to section 1202.45. Such a fine, in the same amount as the restitution fine
imposed pursuant to section 1202.4, subdivision (b), is mandatory in every case where a
prison term includes a period of parole. (People v. Tillman (2000) 22 Cal.4th 300, 302;
People v. Rodriguez (2000) 80 Cal.App.4th 372, 375-378; People v. Terrell (1999)
69 Cal.App.4th 1246, 1255-1256.) Where a fine under section 1202.4, subdivision (b)
has been imposed, the failure to impose a fine under section 1202.45 results in an
unauthorized sentence, which we may correct in the first instance on appeal. (People v.
Rodriguez, supra, 80 Cal.App.4th at p. 376.)
Second, the trial court’s oral pronouncement of sentence failed to specify the
statutory basis for the main jail booking fee and the jail classification fee, as does the
abstract of judgment, and the abstract also fails to specify the statutory basis for the crime
prevention fee, the court operations assessment, and the court facility fee. As we held in
People v. High (2004) 119 Cal.App.4th 1192, the trial court is required to include the
statutory bases of all fees, fines, and penalties imposed upon defendant in its oral
imposition of sentence and the corresponding abstract of judgment.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment in
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accordance with this opinion, and to provide a certified copy of the amended abstract to
the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
DUARTE , J.
We concur:
RAYE , P. J.
BUTZ , J.
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