P. v. Fonseca CA2/4 ( 2013 )

Filed 6/24/13 P. v. Fonseca CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B241882
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA096955)
v.
XAVIER FONSECA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Steven D. Blades, Judge. Affirmed as Modified.
Law Offices of Allen G. Weinberg and Derek K. Kowata, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Michael R.
Johnsen and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Defendant Xavier Fonseca appeals from the judgment entered following his
conviction for lewd acts upon a child (Pen. Code,1 § 288, subd. (c)(1)), unlawful
sexual intercourse (§ 261.5, subds. (c), (d)), and oral copulation of a person under
age 18 (§ 288a, subd. (b)(1)). He contends that the court erred in imposing a $40
criminal assessment for each conviction instead of a $30 fee for each. Further, he
contends that the trial court miscalculated both his presentence custody and
conduct credits. Finally, he asserts that the matter should be remanded to the trial
court to prepare an amended abstract of judgment itemizing the statutory bases for
the penalty assessments imposed. The Attorney General concedes each of these
points, and we agree. As modified, the judgment is affirmed.
PROCEDURAL BACKGROUND
Fonseca was charged with the above sexual offenses involving his minor
niece, with the first offense occurring between September and November of 2010
and the last in April or May 2011.2 The criminal information, alleging six counts,
was filed on March 20, 2012. On May 9, 2012, a jury convicted Fonseca of each
of the six counts with which he was charged. He was sentenced on June 7, 2012 to
a total of six years four months in prison, consisting of the middle term of three
years for count 2 (§ 261.5, subd. (d)), plus consecutive terms of eight months (one-
third the middle term) each for count 1 (§ 288, subd. (c)(1)), count 3 (§ 261.5,
subd. (c)), count 4 (§ 288a, subd. (b)(1), count 5 (§ 261.5, subd. (c)), and count 6
(§ 288a, subd. (b)(1)). He was ordered to pay a $240 restitution fine (§ 1202.4,
1
All further statutory references are to the Penal Code unless otherwise stated.
2
Because the only issue on appeal relates to the calculation of fines and presentence
custody credits, we do not summarize the facts of the offense.
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subd. (b)), a $240 parole revocation fine (§ 1202.45), a $300 sexual assault fine
(§ 290.3, subd. (a)) plus penalty assessments of $840 and a surcharge of 20 percent
($60), a $40 court operation assessment for each conviction (§ 1465.8, subd.
(a)(1)), and a $40 criminal conviction assessment for each conviction (Gov. Code,
§ 70373). He was also ordered to register as a sex offender (§ 290).
The court determined Fonseca‟s presentence credits to be 37 days of actual
custody and 5 days of conduct credit, for a total of 42 days of credit to offset his
sentence.
Fonseca timely appealed.
DISCUSSION
I. Criminal Conviction Assessment
Fonseca contends, and the Attorney General concedes, that that trial court
erroneously imposed a $40 criminal conviction assessment for each of the six
convictions, when the proper amount is $30 for each. (Gov. Code, § 70373, subd.
(a)(1) [“The assessment shall be imposed in the amount of thirty dollars ($30) for
each misdemeanor or felony.”].) Therefore, we order the sentence corrected to
reflect that the total fine under Government Code section 70373 is $180, rather
than $240. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [an unauthorized
sentence “is subject to judicial correction whenever the error comes to the attention
of the reviewing court.”].)
II. Presentence Custody and Conduct Credits
At sentencing, the trial court awarded Fonseca 37 days of actual custody
credit plus 5 days of conduct credit, calculated at 15 percent, for a total of 42 days.
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Fonseca challenges the calculation of both credits. The Attorney General concedes
that these credits were miscalculated, and we agree.
Fonseca first contends that he should have received 39 days of actual
custody credit, rather than 37. “A defendant is entitled to actual custody credit for
„all days of custody‟ in county jail and residential treatment facilities, including
partial days. [Citations.] Calculation of custody credit begins on the day of arrest
and continues through the day of sentencing.” (People v. Rajanayagam (2012) 211
Cal.App.4th 42, 48 (Rajanayagam).) After Fonseca‟s conviction he was remanded
to custody on May 9, 2012, and was sentenced on June 7, for a total span of 30
days in custody. The trial court correctly calculated 30 days in custody for that
time span. However, the court miscalculated the days Fonseca had spent in
custody between his arrest on February 21, 2012 and his release on bail on
February 29, 2012, calculating only 7 days. Apparently the trial court did not
include the date of his arrest or the day he was bailed out. Because we must
include those partial days spent in custody, we calculate the time spent custody
between his arrest on February 21, 2012 and his release on bail on February 29,
2012 as totaling 9 days, not 7 days. Therefore, we adjust the custody credits to 39
days, instead of 37 days.
The trial court also erred in calculating Fonseca‟s presentence custody credit
under section 4019, which provides that a criminal defendant may earn additional
presentence credit against his or her sentence for performing assigned labor
(§ 4019, subd. (b)), and for complying with applicable rules and regulations
(§ 4019, subd. (c)). Section 4019 been amended numerous times in recent years to
alter the formula for earning credits.
Before January 25, 2010, defendants were entitled to “one-for-two” conduct
credits, or two days for every four days of actual time served in presentence
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custody. (Former § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp.
4553, 4554.) Effective January 25, 2010, the Legislature amended section 4019 to
accelerate the accrual of presentence conduct credit such that certain defendants
earned two days of conduct credit for every two days in custody, known as “one-
for-one” conduct credits. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50; see
Rajanayagam, supra, 211 Cal.App.4th at p. 48.) Exempted from this amendment
were registered sex offenders and defendants committed for a serious felony or
who had prior serious or violent felony convictions. These defendants were
subject to the pre-January 25, 2010 formula for calculating presentence credits.
(Former § 4019, subds. (b)(2) & (c)(2); People v. Kennedy (2012) 209 Cal.App.4th
385, 395.)
Effective September 28, 2010, the Legislature again amended section 4019
for crimes committed after that date. (Stats. 2010, ch. 426, §§ 1, 2, 5.)
Subdivisions (b) and (g) reinstated the less generous pre-January 25, 2010 one-for-
two formula whereby all local prisoners could earn two days of conduct credit for
every four days in jail. (Rajanayagam, supra, 211 Cal.App.4th at pp. 48-49, 51.)
As to most prisoners, however, that formula was superseded by a more liberal
formula provided by 2010 amendments to section 2933, subdivision (e)(1), that
allowed one-for-one credits. (Stats. 2010, ch. 426, § 1.) However, the enacting
statute declared that, as to certain classes of prisoners including defendants
required to register as sex offenders, this formula was inapplicable, and the one-
for-two formula set forth in section 4019 would continue to govern. (Former
§ 2933, subd. (e)(3); Stats. 2010, ch. 426, § 1.)
The statute was amended again in 2011 to provide that “a term of four days
will be deemed to have been served for every two days spent in actual custody.”
(§ 4019, subd. (f).) The amendment was expressly made operative only as to
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“prisoners who are confined . . . for a crime committed on or after October 1,
2011,” and thus this amendment is not applicable to Fonseca. (§ 4019, subd. (h),
as amended by Stats. 2011, ch. 39, § 53; see People v. Verba (2012) 210
Cal.App.4th 991, 993-994.)
Fonseca‟s first offense occurred between September and November of 2010,
and thus the calculation of conduct credit applicable to his sentence for this offense
could be subject to the version of the statute that was effective up until September
28, 2010. The other offenses took place between January and May of 2011, and
thus the version that was effective from September 28, 2010 until September 30,
2011, governs as to these offenses. However, under both versions, as discussed
above, Fonseca was entitled to one-for-two credits because he was required to
register as a sex offender. (Former § 4019, subds. (b)(2) & (c)(2), Stats. 2009, 3d
Ex. Sess. 2009–2010, ch. 28, § 50; former § 2933, subd. (e), Stats. 2010, ch. 426,
§ 1.) The Attorney General correctly concedes that the one-for-two formula should
have been applied.
Rather than applying the one-for-two formula, however, the trial court
concluded that Fonseca was entitled to only 15 percent of conduct credit under
section 2933.1, which provides for a 15 percent formula for any person who is
convicted of a felony offense listed in subdivision (c) of section 667.5. (§ 2933.1,
subds. (a)-(c).) The prosecutor and the defense advised the court that some of the
offenses for which Fonseca was convicted constituted violent felonies pursuant to
section 667.5. As both parties acknowledge on appeal, they were incorrect.
Fonseca was not convicted of a crime that constitutes a “violent felony” under
section 667.5. Therefore, the court should not have applied the 15 percent formula
in determining his conduct credit. (See People v. Brewer (2011) 192 Cal.App.4th
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457, 460.) Under the one-for-two formula that should have been applied, Fonseca
was eligible for 18 days of conduct custody.
Accordingly, the judgment is modified to reflect that Fonseca has earned 39
days of custody credit and 18 days of conduct credit.
III. Itemization of Penalty Assessments
Fonseca contends and the Attorney General concedes that this case must be
remanded to the trial court so that it may specify in the abstract of judgment the
statutory bases for the imposition of all fines and fees. We agree.
The trial court orally pronounced that it was imposing a $300 sex offender
fine under section 290.3, subdivision (a), plus unspecified penalty assessments.
The minute order and abstract of judgment reflect that penalty assessments in the
amount of $840, plus a 20 percent surcharge in the amount of $60, were imposed.
Neither the minute order nor the abstract of judgment describes the statutory basis
for imposing the $840 penalty assessments plus $60 surcharge.
“In Los Angeles County, trial courts frequently orally impose the penalties
and surcharge . . . by a shorthand reference to „penalty assessments.‟ The
responsibility then falls to the trial court clerk to specify the penalties and
surcharge in appropriate amounts in the minutes and, more importantly, the
abstract of judgment. This is an acceptable practice.” (People v. Sharret (2011)
191 Cal.App.4th 859, 864.) Ultimately, however, the abstract of judgment must
“separately list, with the statutory basis, all fines, fees and penalties imposed on
each count.” (People v. High (2004) 119 Cal.App.4th 1192, 1201 (High).) The
High court explained: “Although we recognize that a detailed recitation of all the
fees, fines and penalties on the record may be tedious, California law does not
authorize shortcuts. All fines and fees must be set forth in the abstract of
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judgment. [Citations.] . . . If the abstract does not specify the amount of each
fine, the Department of Corrections cannot fulfill its statutory duty to collect and
forward deductions from prisoner wages to the appropriate agency. [Citation.] At
a minimum, the inclusion of all fines and fees in the abstract may assist state and
local agencies in their collection efforts. [Citation.] Thus, even where the
Department of Corrections has no statutory obligation to collect a particular fee
. . . , the fee must be included in the abstract of judgment.” (High, supra, 119
Cal.App.4th at p. 1200; see People v. Eddards (2008) 162 Cal.App.4th 712, 718.)
The High court remanded the case with directions to amend the abstract of
judgment to “separately list, with the statutory basis, all fines, fees and penalties
imposed on each count.” (High, supra, 119 Cal.App.4th at p. 1201.)
Remand is similarly necessary here. Neither the oral pronouncement of
judgment, the sentencing minute order, nor the abstract of judgment specifies the
statutory basis for the penalty assessments and surcharge. Although the amount of
the penalty assessment appears to have been correctly calculated by reference to
the formula applied in People v. Voit (2011) 200 Cal.App.4th 1353, 1373-1374, the
trial court must correct the abstract of judgment to separately list, with the statutory
basis, all fines, fees and penalties, as well as the amount of each.
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DISPOSITION
The judgment is modified to reflect that Fonseca is subject to a $180
court facilities assessment fee under Government Code section 70373, rather than a
$240 fee, and that he has earned 57 days of presentence custody credit, consisting
of 39 days in actual custody and 18 days of conduct credit. The trial court is
directed to prepare an amended abstract to include the above modifications and
corrections, as well as to specify the statutory basis and amount of each fine,
penalty and fee, and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation. The judgment is affirmed as
modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
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