Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 206965
Haerle, J.
I. INTRODUCTION
Because, appellant claims, the court imposed certain fines on him in amounts greater than those agreed to in the plea agreement made in that court, and also erred in ordering restitution (because such was not discussed in the plea agreement), the case should be remanded to the trial court and appellant allowed to withdraw his plea if the judgment is not corrected to provide as he believes it should. We disagree and, instead, remand the matter to the trial court with instructions to correct inconsistencies between the amount of two fines the trial court ordered at the sentencing hearing and the amounts of those fines shown in the abstract of judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The details of the offenses with which appellant was charged do not, in view of his later plea, need to be gone into in detail at all. Suffice it to say that, on April 8, 2008, two African-American males robbed one victim by pointing a gun at him in front of a residence on Rhode Island Street in San Francisco, and attempted to rob another (the first victim’s aunt) who had let the first victim off at that residence. The robbers secured a wallet from the first victim, but nothing from the second, and then fled the scene. The two victims subsequently gave the police descriptions of the two robbers and, two days later, an undercover officer observed two young African-American males who matched the descriptions provided by the victims. Other officers then detained both suspects and, in the process of searching them for police security reasons, found a loaded.380 semi-automatic pistol in appellant’s possession and an operational walkie-talkie in the possession of the other person stopped. Cold shows were then conducted and the second victim of the robbery and attempted robbery two days before positively identified appellant as the person who had attempted to rob her at gunpoint two days earlier.
On November 6, 2008, the San Francisco District Attorney filed a six-count information charging appellant with (1) robbery (Pen. Code, § 211), (2) assault with a firearm (§ 245, subd. (a)(2)) (two counts), (3) attempted robbery (§§ 664 and 211), (4) possession of a concealed weapon in a public place (§ 12025, subd. (a)(2)), and (5) possession of a firearm by a prohibited person (§ 12031, subd. (a)(1).)
All statutory references are to the Penal Code, unless otherwise noted.
As to the robbery and attempted robbery counts, the information alleged an enhancement of personal use of a firearm (§ 12022.53, subd. (b)) and did the same as to the assault with a firearm counts. (§ 12022.5, subd. (a)).
On April 6, 2009, the district attorney amended one of the assault counts to allege a violation of section 245, subdivision (a)(1), and also amended the charged enhancement on the robbery count to allege a violation of section 12022.5.
On the same date, and pursuant to a negotiated disposition, appellant withdrew his earlier pleas of not guilty and pled guilty to the robbery count and one of the two assault with a firearm counts (specifically, counts one and two of the amended information) and admitted the enhancements as to those counts.
On April 29, 2009, the court imposed a term of five years on count 1 (the robbery count) plus a three-year consecutive term for the admitted enhancement thereto; a concurrent term was imposed regarding count 2, making appellant’s total prison sentence eight (8) years.
Regarding the fines payable by appellant—the issue on this appeal—the court stated at the sentencing hearing:
“He is to pay $200.00 to the restitution fund for each count he pled to consecutive, he is to pay a $20.00 court security fee for each count consecutive, he is to pay a $30.00 I.C.N.A. fee, he is to pay $200.00 to the parole violators fund, which will be stayed. It will be permanently stayed pending successful completion of parole.”
Referring to the “Immediate and Critical Needs Assessment” statute, i.e., Government Code section 70373.
“He is to pay restitution, if any, to the victim or victims, and this court will retain jurisdiction over any issues of restitution.”
On June 22, 2009, appellant filed a timely notice of appeal; he also requested a certificate of probable cause, which the trial court denied.
III. DISCUSSION
Appellant contends that (1) the fines actually imposed, as reflected in the abstract of judgment, are inconsistent with the sentence the court verbally stated at the April 29, 2009, sentencing hearing and (2) “[n]o mention was made of restitution to victims at the time appellant’s plea agreement was made.” As a consequence, he contends, appellant should be permitted to withdraw his plea because of the imposition of a sentence harsher than that expressly agreed to.
We agree that there is an apparent inconsistency between two of the fines mentioned by the trial court at the sentencing hearing and the amounts thereof noted in the abstract of judgment, but the remedy first proposed by appellant, i.e., permission to withdraw his plea, is entirely unnecessary. Rather, the appropriate remedy, as appellant properly concedes in his opening brief, “is to correct the sentence so that it does not violate the terms of the plea agreement.”
First of all, at the April 6, 2009, plea hearing, appellant’s own counsel specifically addressed the amounts of fines that had been agreed to in the negotiated disposition: “There is also $200.00 to the restitution fund, $20.00 court security fee, $30.00 critical funds fine, and $200.00 to the parole violators fund, which will be stayed, and will be permanently stayed pending successful completion of parole.”
The Attorney General, in his brief to this court, states that this statement was made by the prosecutor. This is incorrect, as the reporter’s transcript clearly reflects that it was made by appellant’s trial counsel.
The court then asked appellant if he both understood and agreed with all of the statements previously made by his counsel, the prosecutor, and the court, and appellant stated that he did.
At the sentencing hearing later the same month, the trial court essentially repeated the April 6 statement made by defense counsel regarding the fines to be imposed, albeit twice inserting the very confusing and ambiguous term “consecutive” therein. Inasmuch as (1) there was no consecutive prison sentence imposed on the two counts and (2) in any event, fines are not imposed “consecutively, ” we agree with respondent that the “most reasonable interpretation of the court’s comment is that it intended to impose the fines to which the parties had agreed.” Thus, the correct amount of the restitution fine should be $200, not the $400 stated in the abstract of judgment. This ministerial error in the abstract of judgment should be corrected, and we so order.
The trial court imposed a concurrent term for the second count. This makes the trial court’s use of the term “consecutive” in the context of the fines imposed even more confusing.
However, no correction is necessary regarding the other claims of error made by appellant. Both the court security fee and the ICNA assessment are required by statute and must, pursuant to those statutes, be imposed for each count on which appellant was convicted. Section 1465.8 specifically so provides regarding the court security fine (see People v. Roa (2009) 171 Cal.App.4th 1175, 1181; People v. Schoeb (2005) 132 Cal.App.4th 861, 865). Government Code section 70373, subdivision (a)(1), provides to the same effect regarding the ICNA fines.
Further, both fines (or fees, as they have sometimes been labeled) have also been designated as “nonpunitive” by several appellate court decisions, including one by our Supreme Court. (See People v. Alford (2007) 42 Cal.4th 749, 756-759; People v. Wallace (2004) 120 Cal.App.4th 867, 878, regarding the court security fine; and People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5-7, regarding the ICNA fine.)
In any event, even assuming the trial court misadvised appellant regarding the correct amount of those fines being imposed on him, “because the fine is mandatory... striking [it] altogether would violate this statutory mandate.” (People v. Walker (1991) 54 Cal.3d 1013, 1027 (Walker)). And per our Supreme Court’s unanimous decision in Walker, when, as here, an error in the imposition of fines or fees imposed “is first raised after sentencing, the proper remedy is to reduce the fine to the statutory minimum and to leave the plea bargain intact.” (Id. at p. 1029.) Per that principle, and also bearing in mind the just-noted mandatory “per count” nature of those fines, their correct amounts should be, as imposed and recorded here, $60 for the court security fines and $40 for the ICNA fines. The court’s judgment was thus correct as to these two fines, and there is no basis upon which appellant should be allowed to withdraw his guilty pleas.
Nor, as argued by appellant in his briefs to us, was there any “misadvisement” of appellant by the trial court regarding the amount of the restitution fine. As noted above, the only arguable mistake made by the trial court at that hearing related to the restitution fund fine, i.e., whether it was $200 or $400. And that error did not occur at either the plea hearing or the sentencing hearing but, rather, in the preparation—presumably by the court clerk—of the subsequent abstract of judgment, which we are directing the court to correct. Thus, what is involved here was and is, purely and simply, a clerical error. As corrected, the $200 amount corresponds exactly to the amount (1) which appellant was advised of by his own counsel when he entered his plea on April 6 and (2) imposed as a fine by the trial court a few weeks later. There was, therefore, no violation of the April 6 plea bargain and, as a consequence, appellant has no legal right to withdraw his plea. (See People v. Avila (1994) 24 Cal.App.4th 1455, 1461 (Avila).)
Disregarding, as noted previously, the inexplicable and inapplicable “consecutive” term used by the court.
Even if the trial court erred in its advisement of appellant relating to the amount of the restitution fine, Avila also makes clear that reversal is not warranted because appellant never demonstrated (or even asserted) prejudice in the trial court, and such a showing is required. (Avila, supra, 24 Cal.App.4that pp. 1459-1460.)
Finally, appellant is also incorrect in his initial assertion that the trial court improperly retained jurisdiction regarding the subject of the amount of restitution payable to the victims of the robbery and assaults because, at the time he entered his guilty pleas, there was “[n]o mention of restitution to [the] victims.” As this court held in People v. Rowland (1997) 51 Cal.App.4th 1745, 1750-1751, since the 1982 adoption of an initiative “establishing a new constitutional right for crime victims to obtain restitution for losses suffered as a result of a criminal act and directing the Legislature to enact laws empowering” trial courts to issue such orders, and the subsequent enactment of section 1202.4, “victim restitution is mandated by both the Constitution and section 1202.4. [Citations.] The only discretion retained by the trial court in this regard is in fixing the amount of the award.” (See also, to the same effect, People v. Brown (2007) 147 Cal.App.4th 1213, 1225-1226.)
He does not repeat this contention in his reply brief to us.
The law is clear—under authority cited by neither party in their briefs to us—that a trial court may, as this court did, retain jurisdiction to receive evidence concerning, and thereafter ruling, regarding the amount of restitution payable by a convicted defendant to his or her victim or victims. (See § 1202.46; People v. Bufford (2007) 146 Cal.App.4th 966, 970-971; People v. Moreno (2003) 108 Cal.App.4th 1, 7-11.) And, here, there was no objection made in the court below to its retention of such jurisdiction.
IV. DISPOSITION
This case is remanded to the trial court with instructions to the clerk of that court to correct the minutes and the abstract of judgment to reflect that a restitution fund fine of $200, and not $400, is imposed on appellant in this case. The clerk is further directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. Otherwise, the judgment is affirmed.
We concur: Kline, P.J., Lambden, J.