P. v. Jachens CA3 ( 2013 )

Filed 6/3/13 P. v. Jachens 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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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THE PEOPLE, C072490
Plaintiff and Respondent, (Super. Ct. No. 12F02636)
v.
JUSTIN JACHENS,
Defendant and Appellant.
Defendant Justin Jachens was sentenced to six years in state prison following his
conviction for felony driving under the influence (DUI) and causing great bodily injury to
his passenger. Defendant’s ensuing appeal is subject to the principles of People v. Wende
(1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In
accordance with the latter, we will provide a summary of the offenses and the
proceedings in the trial court.
1
In November 2011, defendant drove a car at 100 miles per hour and struck a brick
wall, causing a skull fracture and shoulder injuries to passenger Matthew Moreshed.1
Defendant tested positive for alcohol (0.19 percent blood-alcohol level), cocaine
metabolite, and marijuana. He had a May 2011 prior conviction for DUI. (Veh. Code,
§ 23152, subd. (a).)
Defendant pleaded no contest to driving with a blood-alcohol level of 0.08 percent
or more (Veh. Code, § 23153, subd. (b)—count two) and admitted allegations that he
inflicted great bodily injury upon Moreshed (Pen. Code, § 12022.7, subd. (a)) and that the
offense occurred within 10 years of the prior DUI conviction (Veh. Code, § 23540, subd.
(a)). Defendant also pleaded no contest to driving while his license was suspended or
revoked for DUI. (Veh. Code, § 14601.2, subd. (a)—count four.) In exchange, two
related counts were dismissed with a Harvey waiver.2
Defendant was sentenced to state prison for six years. Execution of sentence was
suspended and defendant was placed on probation on the conditions, among others, that
he abstain from alcohol and serve one year of incarceration. He was awarded one day of
custody credit, ordered to make restitution to his victims, and ordered to pay a $1,015
fine on count two, a $300 fine on count four, a $200 restitution fine (Pen. Code,
§ 1202.4), a $200 restitution fine suspended unless probation is revoked (Pen. Code,
§ 1202.44), a $4 emergency air transportation fee (Gov. Code, § 76000.10), a $50 alcohol
abuse education penalty assessment (Veh. Code, § 23645), an $80 court operations fee
(Pen. Code, § 1465.8, subd. (a)(1)), a $60 court facilities assessment (Gov. Code,
§ 70373), a $331.98 main jail booking fee, and a $20.75 classification fee (Gov. Code,
§ 29550.2).
1 Because the matter was resolved by plea, our statement of facts is taken from the
probation officer’s report and the prosecutor’s statement of the factual basis for the plea.
2 People v. Harvey (1979) 25 Cal.3d 754.
2
A petition was filed alleging defendant violated probation by having a measurable
amount of alcohol in his blood after having consumed alcohol the previous evening. He
admitted the allegation. Execution of the prison sentence was ordered. The trial court
ordered defendant’s restitution, fines, and fees to remain intact. Defendant appeals. His
request for a certificate of probable cause was granted.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests 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 of the opening brief. More than 30 days have elapsed, and
we have received no communication from defendant.
Our review of the record discloses some errors with respect to fines and fees. The
probation department filed a report recommending that probation be denied and that
defendant pay, among other things, a $340.01 main jail booking fee, a $40 court security
(now operations) fee, a $30 court facilities fee, and a stayed parole revocation restitution
fine (Pen. Code, § 1202.45).
The trial court ordered the probation department to “write up alternative terms and
conditions” under which probation would be granted. Unlike the original report, the
“alternative” lowered the main jail booking fee to $331.98 and recommended a stayed
probation revocation restitution fine. Moreover, in recognition of defendant having been
convicted of two counts, the “alternative” recommended that the court security fee be
doubled to $80 and the court facilities fee be doubled to $60.
When the trial court suspended execution of sentence and granted probation, it
orally pronounced the “alternative” booking fee, security fee, and facilities fee. By
reference to the alternative terms, the court imposed and stayed the probation revocation
restitution fine.
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Thereafter, when the trial court ordered execution of the prison sentence, it
ordered that “all of the fines and fees will remain intact.” The court did not order
execution of the stayed probation revocation restitution fine or impose and stay a parole
revocation restitution fine.
The minute order and the abstract of judgment mistakenly reflected the original
booking fee, court security fee, and court facilities fee rather than the “alternative” fees
that had been orally pronounced. The minute order and abstract did not order execution
of the stayed probation revocation fine but did purport to reflect a stayed parole
revocation fine that had not been orally pronounced.
Defendant’s appellate counsel brought the $8.03 booking fee error to the trial
court’s attention. The court duly corrected its minutes and issued an amended abstract of
judgment. Because appellate counsel did not mention the errors with the probation and
parole revocation fines, the security fee, or the facilities fee (which were not in
defendant’s favor), the scarce resources of this court and the trial court must now be
expended to correct those errors.
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 modified to order execution of the stayed $200 probation
revocation restitution fine and to impose and stay a $200 parole revocation restitution
fine. As so modified, the judgment is affirmed. The trial court is directed to amend the
abstract of judgment to reflect the executed probation revocation fine, the stayed parole
revocation fine, an $80 court security fee and a $60 court facilities fee. The court is
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reminded to check the box for an “Amended Abstract.” A certified copy of the amended
abstract shall be forwarded to the Department of Corrections and Rehabilitation.
BUTZ , J.
We concur:
RAYE , P. J.
HULL , J.
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