P. v. Sear CA3 ( 2013 )

Filed 3/27/13 P. v. Sear 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C071398
Plaintiff and Respondent, (Super. Ct. No. 10F04592)
v.
DESMOND LEE SEAR,
Defendant and Appellant.
Pursuant to a negotiated disposition, defendant Desmond Sear pled no contest to
two counts of robbery (Pen. Code,1 § 211), and admitted he personally used a firearm
(§ 12022.53, subd. (b)), in exchange for a stipulated sentence of 13 years in prison. The
trial court also imposed various fines and fees.
On appeal, defendant contends the abstract of judgment must be corrected to
reduce the restitution fine (§ 1202.4) from $3600 to $240. He further contends the theft-
1 Further undesignated statutory references are to the Penal Code.
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related crime prevention fine (§ 1202.5) must be vacated because the trial court did not
orally impose it.
We shall remand to permit the trial court to clarify the amount of the restitution
fine and impose a mandatory parole revocation in like amount. We shall order the
abstract of judgment corrected to delete the crime prevention fine under section 1202.5.
BACKGROUND
Defendant and two others committed a home invasion robbery against a woman
and her 11-year-old son. Defendant personally used a gun.
In an amended information, the People charged defendant and the two others with
two counts of first degree robbery and one count of first degree burglary (§ 459) and
alleged defendant personally used a firearm in the commission of the robberies. Pursuant
to a plea bargain, defendant pled no contest to the two robbery counts and admitted the
personal use of a firearm as to the second count in exchange for a stipulated sentence of
13 years.
Defendant asked to delay sentencing so that the probation department could
review information that defendant had been admitted into a program at Delancey Street.
The People requested immediate sentencing, indicating they would not consent to
placement at Delancey Street. The trial court found delay fruitless because, in the court’s
view, Delancey Street was not an option in lieu of 13 years in prison.
After sentencing defendant to 13 years in prison, in accordance with the terms of
the plea bargain, the trial court turned to fines and fees. The court stated, “Mr. Sear is
being ordered to pay the restitution fine as outlined by the probation department. He’s
also being ordered to pay the minimum amounts of the mandatory fines and fees. That’s
a $40 court operations assessment, $30 dollar criminal conviction assessment, $240
restitution fine. Jail, booking, and classification fees are waived.”
The probation report recommended a restitution fine of $3,600, as well as an
additional restitution fine (parole revocation fine) in the same amount under section
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1202.45, suspended unless defendant’s parole was revoked. The report also
recommended a crime prevention fine of $20 ($10 for each offense) pursuant to section
1202.5.
The abstract of judgment reflects restitution fines of $3,600 pursuant to sections
1202.4, subdivision (b) and 1202.45. It also recites a $20 fine pursuant to section 1202.5.
DISCUSSION
I
Restitution Fine
The restitution fine under section 1202.4, subdivision (b)(1) is mandatory unless
the court finds and states on the record “compelling and extraordinary reasons” for not
imposing the fine. (§ 1202.4, subd. (b)(1); People v. Woods (2010) 191 Cal.App.4th 269,
272.) Here, the trial court imposed the fine. What is unclear is the amount. The court
first said the fine would be “as outlined by the probation department,” which
recommended a $3,600 fine. Then, the court ordered minimum mandatory fines and fees,
specifying a $240 restitution fine.
Defendant contends the restitution fine should be lowered to $240. The People
argue the record is ambiguous as to the amount of the fine. We agree with the People.
Accordingly, we will remand for clarification of the amount of the restitution fine.
Imposition of a parole revocation fine pursuant to § 1202.45, in the same amount
as the restitution fine under section 1202.4, is mandatory. (People v. Smith (2001) 24
Cal.4th 849, 853.) On remand, the trial court must also impose and suspend the
mandatory parole revocation fine required by section 1202.45.
II
Theft-Related Crime Prevention Fine
Section 1202.5 provides for a crime prevention fee for certain theft-related crimes.
(§ 1202.5, subds. (a) & (b).) The fine is mandatory unless the trial court determines that
the defendant has no ability to pay any part of the fine. “In any case in which a defendant
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is convicted of any of the offenses enumerated in Section 211 . . . , the court shall order
the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine
imposed. If the court determines that the defendant has the ability to pay all or part of the
fine, the court shall set the amount to be reimbursed and order the defendant to pay that
sum to the county in the manner in which the court believes reasonable and compatible
with the defendant's financial ability. In making a determination of whether a defendant
has the ability to pay, the court shall take into account the amount of any other fine
imposed upon the defendant and any amount the defendant has been ordered to pay in
restitution.” (§ 1202.5, subd. (a).)
Here, the trial court did not impose the fine or make a finding that the defendant
had no ability to pay any part of the fine. The court did, however, impose the minimum
amount of mandatory fines and waive other fines, suggesting it found defendant had a
limited ability to pay.
Defendant contends the fine must be vacated. The People, while conceding the
section 1202.5 fine is subject to a determination of ability to pay, argue that we should
permit the sentencing court to evaluate imposition of the fine on remand. We agree with
defendant and will vacate the fine. Where the trial court does not impose a fine that is
subject to defendant’s ability to pay, and the record is silent, we presume the trial court
found no ability to pay. (People v. Stewart (2004) 117 Cal.App.4th 907, 911; People v.
Burnett (2004) 116 Cal.App.4th 257, 261.)
DISPOSITION
The section 1202.5 fine is vacated. The matter is remanded for the trial court to
determine the amount of the section 1202.4 restitution fine, impose a parole revocation
fine in the same amount under section 1202.45, prepare an amended abstract of judgment
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in accordance with this opinion, and forward a certified copy of the amended abstract to
the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
DUARTE , J.
We concur:
HULL , Acting P. J.
MURRAY , J.
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