Opinion
C090070
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN ARON TALMADGE JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18NCR12866, 18NCR12875, 19CR13873)
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). In April 2018, defendant John Aron Talmadge, Jr., pleaded guilty to one count in each of two separate cases. In case No. 18NCR12875 (case No. 875), defendant pleaded guilty to driving a motor vehicle with willful and wanton disregard for the safety of others while attempting to elude a pursuing peace office. (Veh. Code, § 2800.2.) In case No. 18NCR12866 (case No. 866), defendant pleaded guilty to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) Defendant also admitted the special allegation that he personally inflicted great bodily injury upon the victim in the commission of that assault. (§ 12022.7, subd. (a).)
Undesignated statutory references are to the Penal Code.
In June 2018, the trial court placed defendant on probation for a period of five years for both cases and imposed a $300 restitution fine (§ 1202.4) and a $300 probation revocation fine, stayed pending successful completion of probation (§ 1202.44) in case No. 875, and a $300 restitution fine in case No. 866.
In March 2019, a deputy district attorney filed a petition for revocation of defendant's probation and a criminal complaint in case No. 873. A few weeks later, defendant pleaded guilty to a new violation of Vehicle Code section 2800.2 in case No. 19CR13873 (case No. 873), admitted the prior strike conviction from case No. 866 (the assault with a deadly weapon offense), and admitted violating the terms of his probation in case Nos. 866 and 875.
In May 2019, the trial court sentenced defendant to an aggregate term of nine years in prison consisting of the upper term of four years for the assault with a deadly weapon offense in case No. 866; a consecutive term of 16 months (one-third the middle term, doubled for the strike prior) for the evading offense in case No. 873; a consecutive term of eight months (one-third the middle term) for the evading offense in case No. 875; and a consecutive term of three years for the section 12022.7, subdivision (a) special allegation in case No. 866.
The trial court imposed the following fines and fees: a $600 restitution fine (§ 1202.4) with a matching $600 parole revocation fine to be suspended pending successful completion of parole (§ 1202.45) in case No. 873; a $2,100 restitution fine (§ 1202.4) and a matching $2,100 parole revocation fine (§ 1202.45) in case No. 866; and a $300 restitution fine (§ 1202.4) and a matching $300 parole revocation fine (§ 1202.45) in case No. 875. The trial court ordered the probation department "relieve[d] . . . from further collection of any unpaid fines or fees" from defendant. Defendant timely appealed and obtained a certificate of probable cause.
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.
But we note several errors regarding costs imposed, which require correction. (People v. Morales (2014) 224 Cal.App.4th 1587, 1594, 1600 [correcting errors regarding imposition of costs on review pursuant to Wende].)
The trial court failed to impose for each of defendant's three convictions a mandatory court operations assessment of $40 (§ 1465.8) and a mandatory criminal conviction assessment of $30 (Gov. Code, § 70373). The failure to impose mandatory assessment amounts constitutes an unlawful sentence and may be modified at any time. (See People v. Smith (2001) 24 Cal.4th 849, 853.) We will modify the judgment to impose the required mandatory assessment amounts.
The trial court also failed to impose mandatory probation revocation fines of $300 for both case Nos. 866 and 875. (See People v. Guiffre (2008) 167 Cal.App.4th 430, 434 [explaining that the revocation fine "be in the same amount as the section 1202.4(b)" restitution fine, and that "imposition of the probation revocation restitution fine under section 1202.44 was not only authorized, it was mandatory, since probation had been revoked"].)
Though the trial court orally imposed the probation revocation fine only as to case No. 875 at the June 2018 sentencing hearing, this mandatory fine also should have been imposed in case No. 866. (See People v. Morales, supra, 224 Cal.App.4th at p. 1594 ["Since imposition of the probation revocation restitution fine (§ 1202.44) is mandatory when probation has been granted and the amount of the probation revocation restitution fine is fixed by statute, we will correct the judgment"].)
At the May 2019 sentencing hearing, the trial court improperly imposed a restitution fine of $2,100 in case No. 866, as it had already imposed a restitution fine of $300 at the June 2018 sentencing hearing. (See People v. Guiffre, supra, 167 Cal.App.4th at p. 434 ["the trial court did not have the authority to impose a second section 1202.4(b) fine, because the original fine survived the revocation of probation"].)
DISPOSITION
The judgment is modified to impose a mandatory $120 court operations assessment (§ 1465.8); a mandatory $90 criminal conviction assessment (Gov. Code, § 70373); probation revocation restitution fines of $300 each in case Nos. 866 and 875; and a restitution fine of $300 and a suspended parole revocation fine in the same amount in case No. 866. The trial court is directed to prepare an amended abstract of judgment and to deliver a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
BLEASE, Acting P. J. I concur: /s/_________
HULL, J. MAURO, J., Concurring and Dissenting.
I fully concur in the majority opinion except to the extent it modifies the judgment to impose additional fines and assessments without remanding to give the trial court an opportunity to assess defendant's ability to pay.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I believe it is appropriate in certain cases to remand the matter to give the trial court an opportunity to consider defendant's ability to pay.
Here, defendant's May 2019 sentencing occurred months after Dueñas was decided, but defendant did not raise an ability to pay challenge at that sentencing hearing. Accordingly, an ability to pay challenge is forfeited regarding the fines imposed at the May 2019 sentencing. Nevertheless, because the majority now modifies the judgment to impose additional fines and assessments, I would remand to give the trial court an opportunity to assess defendant's ability to pay those additional fines and assessments.
/s/_________
MAURO, J.