People v. Carrell-Stephens CA3

Filed 5/19/16 P. v. Carrell-Stephens 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C080672
Plaintiff and Respondent, (Super. Ct. No. 15F03231)
v.
DUSTIN DANIEL CARRELL-STEPHENS,
Defendant and Appellant.
This is an appeal pursuant to People v. Wende (1979) 25 Cal. 3d 436. On May 30,
2015, defendant Dustin Daniel Carrell-Stephens and his accomplices entered a home
improvement store and stole tools and other property. The total amount of the property
stolen exceeded $950.
Defendant pleaded no contest to grand theft of property with a value exceeding
$950 (Pen. Code, § 487, subd. (a))1 and admitted a strike prior (2006 first degree
burglary) (§§ 667, subds. (b)-(i), 1170.12) with a court-indicated sentence of three years
1 Undesignated statutory references are to the Penal Code.
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in state prison. The trial court (Judge Davidian) immediately dismissed the strike prior.
(§ 1385; People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.)
After defendant waived his right pursuant to People v. Arbuckle (1978) 22 Cal. 3d
749, the trial court (Judge Orr) imposed the upper term of three years for the offense.
Defendant appeals. The trial court denied his request for a certificate of probable
cause. (§ 1237.5.)
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. (People v. 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.
We note an error at sentencing. A $40 court operation assessment (§ 1465.8) and
a $30 criminal conviction assessment (Gov. Code, § 70373) appear on the abstract of
judgment. The court stated it was imposing a “court security surcharge” but did not refer
to any statutory authority and did not specify an amount. The trial court should have
orally imposed the assessments before the clerk added them to the abstract of judgment,
but the trial court had no discretion on imposing the two fees. Both the court operation
assessment and the criminal conviction assessment are mandatory. Generally, an oral
pronouncement of judgment controls (People v. Mesa (1975) 14 Cal. 3d 466, 471), but
where assessments are mandatory, “their omission may be corrected for the first time on
appeal” (People v. Castellanos (2009) 175 Cal. App. 4th 1524, 1530). Thus, there is no
need for defendant to be given an opportunity to address their imposition. The trial
court’s failure to impose these assessments is sentencing error which we correct on
appeal. We will order the judgment modified to provide for these two assessments.
Since the abstract of judgment already reflects their imposition, we need not order the
trial court to prepare an amended abstract.
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Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to provide for a $40 court operations assessment and a
$30 criminal conviction assessment. An amendment of the abstract is not required since
these fees already appear on the abstract. As modified, the judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
NICHOLSON, Acting P. J.
/S/
MURRAY, J.
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