People v. Hendrix CA3 ( 2014 )

Filed 4/24/14 P. v. Hendrix 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C073341
Plaintiff and Respondent, (Super. Ct. No. 10F01072)
v.
JERMAINE HENDRIX,
Defendant and Appellant.
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436
(Wende).
An amended information accused defendant Jermaine Hendrix of one count of
lewd conduct with force or violence upon a child under the age of 14 (count 1; Pen.
Code, § 288, subd. (b)(1)),1 five counts of lewd conduct upon a child under the age of 14
1 Undesignated section references are to the Penal Code.
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(counts 2 & 4-7; § 288, subd. (a)), and one count of forcible rape against a child aged 15
or 16 (count 3; § 261, subd. (a)(2)). The information alleged that defendant committed
the offenses beginning on or about December 30, 2007, and ending on or about
December 11, 2009.
The evidence at trial showed that the victims were either relatives of defendant or
the daughters of defendant’s friend and sometime housemate. Some counts arose from
episodes that began with defendant “play fighting” or wrestling with the victims, then
proceeding to unwanted touchings. In other episodes, the victims awoke to find
defendant touching them lewdly. In one episode that began in this way, defendant went
on to detain the victim forcibly, overcoming her resistance, and to place his penis in her
vagina against her will.
A jury convicted defendant on all counts.
The trial court sentenced defendant to an aggregate state prison term of 32 years to
life, computed as follows: eight years (the upper term) on count 4, plus subordinate
terms of two years on counts 2, 5, 6, and 7, a full eight-year term on count 1, and a full
eight-year term on count 3, all run consecutive to sentence on count 4. The court
awarded defendant 1,220 days of presentence custody credit (1,061 actual days and 159
conduct days). The court imposed a $200 restitution fine and a suspended parole
revocation restitution fine in the same amount. (§§ 1202.4, subd. (b), 1202.45.) The
court retained jurisdiction as to victim restitution in amounts to be determined. The court
then stated: “Any other mandatory fines are imposed. Any discretionary fines are
stricken.”2
2 This method of imposing fines does not comport with our clear direction that trial
courts must state all fines and their statutory bases on the record at sentencing. (People v.
High (2004) 119 Cal. App. 4th 1192, 1200-1201.) It is improper for a trial court to
delegate the decision to the court clerk as to what fines and fees will appear on the
abstract of judgment. It is also likely to create needless error, as here.
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The abstract of judgment shows a $210 court facility fee (Gov. Code, § 70373),
which is mandatory (Gov. Code, § 70373, subd. (a)(1)). However, the abstract does not
show the following fines and fees that are also mandatory: the state penalty assessment
of $10 per criminal offense (§ 1464), the court operations fee of $40 per criminal offense
(§ 1465.8), and the state court construction penalty of $5 for every $10 per criminal
offense (Gov. Code, § 70372, subd. (a)(1)).
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 elapsed, and we
received no communication from defendant. Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition more favorable
to defendant.
We must remand the matter to the trial court, however, with directions to prepare
an amended abstract of judgment that reflects all mandatory fines and fees as set out
above (multiplying the base amounts by seven because defendant was convicted of seven
felonies), and to forward a certified copy thereof to the Department of Corrections and
Rehabilitation.
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DISPOSITION
The matter is remanded to the trial court with directions to amend the abstract of
judgment as described above. As modified, defendant’s conviction and sentence are
affirmed.
HULL , Acting P. J.
We concur:
ROBIE , J.
BUTZ , J.
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