People v. Dumont CA3 ( 2014 )

Filed 10/14/14 P. v. Dumont 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
THE PEOPLE, C074622
Plaintiff and Respondent, (Super. Ct. No. P12CRF0521)
v.
RALPH EUGENE DUMONT,
Defendant and Appellant.
A jury found defendant Ralph Eugene Dumont guilty of driving under the
influence of alcohol (DUI) and driving with a blood-alcohol content of 0.08 percent or
greater and found true an allegation that he had a blood-alcohol level of 0.15 percent or
greater. The trial court sustained a strike, three prior prison terms, and two prior DUI
conviction allegations. Defendant was sentenced to nine years eight months in state
prison with various fines and fees, including a $2,374 fine, imposed. The fine was later
modified to $2,277.
1
On appeal, defendant contends there are numerous errors in the penalties, fees, and
assessments associated with the fine. Agreeing with defendant, we shall modify the
penalties, fees, and assessments associated with the base fine.
BACKGROUND1
At sentencing, the trial court imposed “a court fine and penalties and assessments
in the amount of $2,374” on the DUI conviction (DUI fine). The abstract of judgment
listed the fine but did not separately list the penalties, fees, and assessments associated
with it.
During the pendency of this appeal, defendant’s appellate counsel sent a letter to
the trial court on November 18, 2013, requesting the trial court provide the statutory basis
for certain fines, fees, and assessments, reconsider the restitution and parole revocation
fines, and correct errors in the abstract. The trial court modified the restitution and parole
revocation fines, modified the DUI fine to $2,277, issued what appeared to be a printout
of a computer program for calculating various fines, fees, penalties, and assessments, and
issued an amended abstract of judgment.
On January 8, 2014, appellate counsel again requested clarification of the DUI
fine. The trial court issued a table outlining the statutory basis for the fine and associated
fees, assessments, and penalties.
Appellate counsel requested further clarification on January 30, 2014. The trial
court promulgated another table. (See appendix.)
DISCUSSION
Defendant identifies numerous errors with the penalties, fees, and assessments
associated with the base fine. With one minor exception, the People agree. We agree
with defendant.
1 We dispense with a summary of the facts of defendant’s crimes as they are
unnecessary to resolve this appeal.
2
Defendant first notes the trial court misstated the statutory source of the base fine.
The purported source of the base fine, Penal Code2 section 1463.001, does not establish
any fine but instead sets forth the procedures for accounting for base fines. Vehicle Code
section 23550, subdivision (a) mandates a fine from $390 to $1,000 for any defendant
who is convicted of a DUI with three prior DUI convictions within the last 10 years.
Defendant and the People assert this is the statutory source of the base fine. We agree
and we shall direct the trial court to state as such in the amended abstract.
Next, defendant finds that the amounts incorporated into the DUI fine pursuant to
sections 1463.14, 1463.16, and 1463.18 are improper as those provisions address the
distribution of the DUI base fine into various categories rather than authorizing additional
fines to be paid by defendant. The People agree regarding sections 1463.16 and 1463.18,
but note that section 1463.14, subdivision (b) gives counties the discretion to impose an
alcohol testing penalty of no more than $50 when a defendant is convicted pursuant to
Vehicle Code sections 23152 or 23153.
Section 1463.16, subdivision (a) mandates that $50 from every DUI fine be
deposited in a special account for the county’s alcoholism program. Section 1463.18,
subdivision (a)(1) mandates the transfer of $20 from every DUI fine to the state
restitution fund. Since neither provision authorizes any additional fine, we shall strike
these amounts from the DUI fine calculus.
Section 1463.14, subdivision (a) mandates the transfer of $50 from every DUI fine
to a special account to pay for blood-alcohol tests. As the People point out, section
1463.14, subdivision (b) of this statute allows a county to impose an additional penalty of
up to $50 on defendants convicted of DUI to offset the cost of testing for alcohol content.
This provision requires the county board of supervisors to authorize the penalty by
2 Undesignated statutory references are to the Penal Code.
3
resolution, and “shall be imposed only in those instances where the defendant has the
ability to pay.” Since the trial court made no finding defendant had the ability to pay and
there is no evidence El Dorado County authorized this penalty, we conclude the trial
court imposed a $50 fee pursuant to subdivision (a) of section 1463.14. This fee is also
unauthorized and we shall therefore strike it.
The next error found by defendant is the section 1464 penalty assessment of $510.
Section 1464, subdivision (a)(1) mandates an assessment of “ten dollars ($10) for every
ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture
imposed and collected by the courts for all criminal offenses” other than certain parking
offenses. The $510 assessment is based on the trial court mistakenly adding the
unauthorized amount of $120 under sections 1463.14, 1464.16, and 1463.18 to the $390
base fine. We shall modify the section 1464 penalty assessment to $390.
Government Code section 76000, subdivision (a)(1) authorizes a county penalty
assessment of $7 for every $10 of fine, penalty or forfeiture imposed. As applied to the
DUI fine, this authorizes a $273 penalty rather than three separate assessments of
$127.50, $25.50, and $102. (See appendix.) We shall modify the penalty to $273.
The Government Code section 76104.1 fine of $102 is unauthorized, as the statute
was repealed by its own terms on January 1, 2014, and applied only to fines, fees, and
assessments in Santa Barbara County. We shall strike this fine.
Government Code section 76104.6 imposes a fee of $1 for every $10 of every fine
to help implement the DNA Fingerprint, Unsolved Crime and Innocence Protection Act.
The trial court erroneously imposed a $51 fee rather than $39, or $1 for every $10 of the
$390 base DUI fine. We shall modify the fee accordingly.
The trial court imposed a Government Code section 76104.7, subdivision (a) DNA
identification fund penalty of $102. This provision imposes a penalty assessment of $4
for every $10 on the base fine. Since the base fine is $390, the assessment should be
$156. We shall modify the penalty to this amount.
4
Government Code section 70372, subdivision (a)(1) establishes a state court
construction penalty of $5 for every $10 on the base fine. Taking the $390 base fine, this
should be $195. The trial court imposed a “GC 70372(a) . . . ICNA assessment 2/10” of
$102 and a “FC70372(a) . . . State Facilities Surcharge” of $153. Finding that these both
refer to the Government Code section 70372 penalty, we shall modify them to a single
penalty of $195.
The trial court imposed a section 1465.7, subdivision (a) surcharge of $102.
Section 1465.7 authorizes a 20 percent state surcharge on the base fine. As defendant
notes, the proper amount is $78 and we shall modify the surcharge accordingly.
Defendant also correctly claims the trial court erred in imposing a $50 assessment
pursuant to section 1463.25. This provision addresses allocation of “the moneys from
alcohol abuse education and prevention penalty assessments collected pursuant to Section
23196 of the Vehicle Code” and does not impose any additional fine, fee, penalty, or
assessment. (§ 1463.25.) We shall strike the $50 “assessment.”
The trial court’s next error is the imposition of a $120 misdemeanor restitution
fine pursuant to section 1202.4. At the time of defendant’s August 1, 2012 crimes,
section 1202.4 authorized a minimum restitution fine of $120 for misdemeanors and $240
for felonies. (§ 1202.4, subd. (b)(1).) Since defendant was convicted of felonies and the
trial court imposed the felony restitution fine, the misdemeanor fine was unauthorized
and we shall therefore strike it.
Finally, defendant finds an error in the “AB1273” emergency medical transport
penalty. The proper statutory basis is Government Code section 76000.10, subdivisions
(a) and (c)(1), the Emergency Medical Transportation Act, which imposes a $4 penalty
for every conviction for a Vehicle Code violation. We agree with defendant that the trial
court intended to impose this penalty, which was enacted by Assembly Bill No. 2173,
effective January 1, 2011. (Stats. 2010, ch. 547, § 2.)
5
DISPOSITION
The amounts imposed pursuant to sections 1463.14, 1463.16, 1463.18, 1202.4,
subdivision (b)(1), 1463.25, and Government Code section 76104.1 are stricken.
Penalties, fees, and assessments are modified as follows: Section 1464 to $390, section
1465.7 to $78, Government Code section 76000 to $273, Government Code section
76104.6 to $39, Government Code section 76104.7 to $156, and Government Code
section 70372 to $195. As modified, the judgment is affirmed. The trial court shall
prepare an amended abstract of judgment making these modifications. The trial court is
directed to state the correct basis for the $390 fine as “VC 23550(a)” and $4 penalty as
“Gov Code 76000.10” and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
MURRAY , J.
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DUI VC 23152-3
Statute Authority   AS OF 07/16/2012*
Incorporated in DUI Fine
PC1463.001 S-M Agency Major (base amount) 390.00 (range)
PC1463.14 ALP Alcohol Lab Fee 50.00
PC1463.16 ADP Alcohol/Drug Program 50.00
PC1463.18 RDI DUI Restitution 20.00
510.00
PC1464 SPE State Penalty 510.00
GC76000 JCF Jailhouse Construction 127.50
GC76000 AFF Automated Fingerprint 25.50
GC76000 EMF Emergency Medical Fund 102.00
GC76104.1 EMS Additional EMS eff 8-07 102.00
GC76104.6 DNA DNA 51.00
GC76104.7 SON State DNA additional 102.00
GC76104.6 SD3 State DNA additional 102.00
FC70372(a) SFC State Facilities Surcharge 153.00
PC1465.7 SCH Surcharge 102.00
GC70372(a) ICN ICNA assessment 2/10 102.00
GC70373 ICM ICNA Surcharge per Chg Conv 30.00
PC1465.8(a) CSA Court Security Assmt PC 1465.8a 40.00
PC1463.25 AEP Alcohol Education PC 1463.25 50.00
Fines Charged Separately 2,109.00
PC1202.4 RMI Misdemeanor Restitution PC 1202.4 120.00
VC40508.6(A) DMV DMV Fees VC 40508.6 10.00
PC1205 ADM Admin Fees PC 1205 60.00
AB1273 EMA Emergency Medical Transport 4.00
TOTAL 2,303.00
* Defendant’s offenses occurred on August 1. 2012
APPENDIX
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