People v. Crosley CA3

Filed 12/11/20 P. v. Crosley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C091921
Plaintiff and Respondent, (Super. Ct. No. 19CF06035)
v.
JAMES LUCKY CROSLEY,
Defendant and Appellant.
Appointed counsel for defendant, James Lucky Crosley, has asked this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) We will modify the judgment to correct the
amount of the mandatory conviction assessment fee imposed and will direct the trial
court to correct other clerical errors and omissions in the sentencing order and abstract of
judgment. Finding no other errors that are favorable to defendant, we will affirm the
judgment as modified.
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FACTUAL AND PROCEDURAL BACKGROUND
The People’s September 18, 2019, complaint charged defendant with driving
under the influence (DUI) of alcohol within 10 years of a felony DUI or vehicular
manslaughter (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a);1 count 1) and driving
with a blood-alcohol content 0.08 percent or higher within 10 years of a felony DUI
conviction or vehicular manslaughter (§§ 23152, subd. (b), 23550.5, subd. (a); count 2).
It was also alleged as to both counts that defendant had suffered a conviction for driving
under the influence of alcohol in violation of section 23152, subdivision (a) in June of
2013 and that his blood-alcohol content had been more than 0.15 percent (§ 23578).
On January 8, 2020, defendant pled guilty to count 2 and admitted the
enhancements. The remaining count was dismissed with a Harvey2 waiver. The parties
stipulated the factual basis for his plea would be taken from the probation report.
On March 11, 2020, the trial court denied defendant’s request for probation and
sentenced defendant to the upper term of three years for defendant’s tenth DUI
conviction. Defendant was awarded credit for nine actual days, plus eight conduct days
for a total of 17 days custody credit.
The court also imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a
$300 suspended parole revocation restitution fine (Pen. Code, § 1202.45), as well as DUI
fines and fees as incorporated from page 10, number 3 of the probation report. These
amounts were a base fine of $460 (§ 23530) and penalty assessments of: $92 (Pen. Code,
§ 1465.7), $230 (Gov. Code § 70372, subd. (a)), $460 (Pen. Code, § 1464), $322 (Gov.
Code, § 76000), $46 (Gov. Code, § 76104.6), $184 (Gov. Code, § 76104.7), $4 “EMAT”,
and $50 (§ 23645). Also imposed in the incorporated portion of the probation report
1 Undesignated statutory references are to the Vehicle Code.
2 People v. Harvey (1979) 25 Cal.3d 754.
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were a $40 court operations assessment (Pen. Code, § 1465.8) and $30 without an
identified statutory basis, which we understand to be the $30 court conviction assessment
that must be imposed on each count of conviction pursuant to Government Code section
70373.3 The court recited some of these incorporated amounts, including “$40 pursuant
to 70373 of the Government Code.”
Defendant timely appealed and did not request a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history 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 from the date the opening brief was filed.
More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we
observe that the court misspoke when identifying the court conviction assessment fee as
$40, not the $30 it was required to impose. (Gov. Code, § 70373, subd. (a)(1) [requiring
a $30 assessment be imposed on every count of conviction for a felony or misdemeanor
offense].) We will modify the judgment to correct this error.
Further, we observe several other errors requiring trial court correction. Neither
the trial court, nor the probation report identified the statutory basis for the $4 EMAT.
We believe the statutory basis for that fee is Government Code section 76000.10,
subdivision (c). We will direct the court to confirm this is the statutory basis for
imposing that amount and to add the statutory basis to the abstract of judgment and
sentencing order.
3 The probation report’s financial chart of fines and fees also lists this $30 court
conviction assessment fee as being imposed pursuant to Government Code section 70373.
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The abstract of judgment inaccurately lists the statutory basis for the $50 penalty
assessment as Penal Code section 1463.16, not section 23645 as incorporated by
reference by the court at sentencing. Finally, all parties were incorrect in identifying the
statutory basis for defendant’s $460 base fine as section 23530 and not section 23550.5.
On June 26, 2020, defendant’s counsel submitted a Penal Code section 1237.2 request in
the trial court requesting the court correct this error. We will direct the trial court to
correct the statutory basis for the penalty assessment and base fine on the abstract of
judgment.
Our review has disclosed no other errors in defendant’s favor.
DISPOSITION
The judgment is modified to make clear that the court conviction assessment fee
imposed by the court was for $30, not the $40 orally stated by the court at sentencing.
(Gov. Code, § 70373.) The trial court is directed to correct the other errors identified in
this opinion, including consideration of defendant’s June 26, 2020, letter requesting
correction of the code section under which he was assessed a $460 base fine. The court
shall then modify the sentencing order and abstract of judgment and forward the amended
abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed
as modified.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
MURRAY, J.
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