People v. Steward CA3 ( 2016 )

Filed 8/11/16 P. v. Steward 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C080326
Plaintiff and Respondent, (Super. Ct. No. 15F02230)
v.
ROBERT MANUEL STEWARD,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende).
Having reviewed the record as required by Wende, we modify the judgment to include
certain mandatory fees. Finding no arguable error that would result in a disposition more
favorable to defendant, we will affirm the judgment as modified.
BACKGROUND
We provide the following brief description of the facts and procedural history of
this case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
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At approximately 9:00 p.m. on April 17, 2015, Kerrye Wheeler was sitting in the
driver’s seat of her car at 3113 Huntsman Drive in Sacramento. Her window was open
and she was talking to her 13-year-old son, Joey, who was sitting in the front passenger
seat. An individual, later identified as defendant, approached the driver’s side of the car
and punched Wheeler in the face. Defendant told Wheeler to “[g]et out of the car” and
said, “I’m not playing.”
After defendant struck Wheeler, Joey got out of the car and ran inside to get his
father. Meanwhile, defendant reached inside Wheeler’s car and opened the door. He
then undid her seat belt, yanked her out of the car, and threw her into the street.
Defendant got into the car and attempted to start it but was unable to do so. Eventually,
defendant got out of the car and walked away, leaving some of his papers behind. A
search of the car by the police revealed numerous papers with defendant’s name on them.
Defendant was charged by an amended information with attempted carjacking in
violation of Penal Code sections 664 and 215, subdivision (a).1 It was further alleged
that defendant had served a prior prison term within the meaning of section 667.5,
subdivision (b), and had suffered a prior serious felony conviction within the meaning of
section 667, subdivision (a), which qualified as a strike (§§ 667, subds. (b)-(i), 1170.12).
Following a jury trial, defendant was found guilty of the charged offense. In a
bifurcated proceeding, the trial court found true the sentence enhancement allegations.
The trial court sentenced defendant to an aggregate term of 15 years in prison, consisting
of the upper term of four years and six months for the attempted carjacking, doubled to
nine years for the prior conviction, plus five years for the prior strike and one year for the
prison prior.
Defendant filed a timely notice of appeal.
1 Undesignated statutory references are to the Penal Code.
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DISCUSSION
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 from the date the opening brief was filed. To date, defendant has not filed a
supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we find
no arguable error that would result in a disposition more favorable to defendant.
However, we have found an error in the abstract of judgment that must be corrected. The
reporter’s transcript reveals that the trial court imposed a $384.94 main jail booking fee,
but the abstract of judgment does not reflect the imposition of this fee. Accordingly, this
omission requires correction of the abstract to reflect the judgment imposed. (See People
v. Mitchell (2001) 26 Cal. 4th 181, 185 [abstract of judgment must fully and accurately
capture all components of a defendant’s sentence]; People v. High (2004)
119 Cal. App. 4th 1192, 1201 [the trial court is required to “separately list, with the
statutory basis, all fines, fees and penalties imposed”].)
In addition to the error in the abstract of judgment, we note a sentencing error.
After imposing the mail jail booking fee, the trial court stated that “[a]ll other fines and
fees are waived.” The trial court erred in failing to impose a court operations assessment
and a criminal conviction assessment both of which are statutorily mandated. (§ 1465.8,
subd. (a)(1); Gov. Code, § 70373, subd. (a)(1); see also People v. Alford (2007)
42 Cal. 4th 749, 754 [court operations assessment is mandatory for all convictions];
People v. Robinson (2012) 209 Cal. App. 4th 401, 405 [court operations and criminal
conviction assessments “are a required part of defendant’s sentence and may be corrected
on appeal”].) Failure to impose mandatory fees, fines, penalties, and assessments
constitutes an unauthorized sentence, which may be corrected by an appellate court even
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in the absence of an objection or argument below. (People v. Turner (2002)
96 Cal. App. 4th 1409, 1413-1415.)
DISPOSITION
We modify the judgment to impose the court operations assessment and a criminal
conviction assessment. The trial court is directed to prepare an amended abstract of
judgment and to forward a certified copy thereof to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
/s/
Blease, J.
We concur:
/s/
Raye, P. J.
/s/
Duarte, J.
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