People v. Nava CA2/4 ( 2014 )

Filed 1/27/14 P. v. Nava 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B248183
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA380638)
v.
ROGELIO NAVA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Henry J.
Hall, Judge. Vacated and remanded.
James Koester, 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, and Margaret E. Maxwell,
Deputy Attorney General, for Plaintiff and Respondent.
Defendant Rogelio Nava appeals from the judgment entered following the trial
court’s finding that he violated the terms and conditions of probation. He contends the
court erred by ordering him to pay restitution to a victim and failing to either impose or
strike a sentence for an enhancement. The Attorney General agrees with defendant and
also requests that we order the abstract of judgment amended to reflect the imposition of
mandatory fines. We will vacate the restitution order and direct the superior court to
correct the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND1
By an information filed March 2, 2011, defendant was charged with selling,
transporting, or offering to sell a controlled substance, to wit, cocaine base, a violation of
Health and Safety Code section 11352. He also was alleged to have served a prior prison
term within the meaning of Penal Code section 667.5, subdivision (b).2 On May 18,
2011, defendant entered a no contest plea to the charge and admitted that he had served a
prior prison term. The trial court suspended the imposition of sentence and placed
defendant on three years of formal probation and assessed various fines and fees.
On August 11, 2012, defendant was arrested for felony vandalism. (Pen. Code,
§ 594, subd. (b)(1).) The district attorney’s office filed a new case based on the
vandalism arrest, and defendant’s probation was summarily revoked.
On April 9, 2013, after a hearing, defendant was found in violation of probation.
He was sentenced to five years for the violation of Health and Safety Code section 11352.
No sentence was imposed for the prior prison term allegation. The felony vandalism case
was dismissed on the prosecution’s motion. The court signed an order requiring
1
Due to the nature of the appeal, we do not set forth the facts of the underlying
cases involved.
2
All further undesignated statutory references are to the Penal Code.
2
defendant to pay $1,200 for damage done to the victim of the vandalism, Pollo Campero
restaurant.3 This appeal followed.
DISCUSSION
The parties agree that in this posture of the case defendant cannot be compelled to
pay restitution for criminal conduct for which he was not convicted, and the matter must
be remanded for the trial court to render a sentencing decision on the prior prison term
allegation. They are correct on both counts.
Generally, restitution awards pursuant to section 1202.4 are limited to losses
resulting from criminal conduct for which a defendant is convicted. (People v. Woods
(2008) 161 Cal.App.4th 1045, 1049.) Although there is authority that allows a trial court
discretion to order restitution not caused by a defendant’s criminal conduct as a condition
of probation (People v. Carbajal (1995) 10 Cal.4th 1114, 1121), a court lacks the power
to do so when, as here, probation is revoked and sentence is imposed. (People v. Woods,
supra, 161 Cal.App.4th at p. 1050.)
With respect to the section 667.5, subdivision (b) prior prison term allegation, the
trial court’s failure to impose or strike the mandatory one-year term resulted in a legally
unauthorized sentence that may be corrected on appeal. (People v. Garcia (2008) 167
Cal.App.4th 1550, 1562.) The matter must be remanded for the trial court to exercise its
discretion to either impose the one-year term or strike it and provide reasons pursuant to
section 1385. (See People v. Bradley (1998) 64 Cal.App.4th 386, 391-392.)
The Attorney General also points out that when the trial court orally pronounced
judgment, it did not impose the mandatory $30 court construction fee pursuant to
Government Code section 70373. We agree. In addition, the minute order does not
reflect that the court imposed the $50 laboratory analysis fee pursuant to Health and
Safety Code section 11372.5. We further observed that the trial court failed to add the
3
We granted defendant’s motion to augment the record with a copy of the court’s
order.
3
required penalties pursuant to section 1464 and Government Code section 76000 to the
laboratory analysis fine. That oversight resulted in an unauthorized sentence. (People v.
Talibdeen (2002) 27 Cal.4th 1151, 1153.) When an assessment and penalties “are
mandatory, their omission may be corrected for the first time on appeal.” (People v.
Castellanos (2009) 175 Cal.App.4th 1524, 1530.)
DISPOSITION
The restitution order requiring defendant to pay $1,200 to the Pollo Campero
restaurant is vacated. The matter is remanded for the trial court to make a sentencing
decision with respect to the section 667.5, subdivision (b) prior prison term allegation and
to amend the abstract of judgment to reflect the sentence, if any, imposed with respect to
that allegation, the imposition of a $30 fee pursuant to Government Code section 70373,
the $50 laboratory analysis fee pursuant to Health and Safety Code section 11372.5, and
the penalties pursuant to section 1464 and Government Code section 76000. The clerk is
directed to forward a copy of the amended abstract to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
*
EDMON, J.
We concur:
EPSTEIN, P. J. WILLHITE, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
4