Filed 6/6/16 P. v. Franco 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NOT TO BE PUBLISHED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
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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, C080328
Plaintiff and Respondent, (Super. Ct. No. CM043394)
v.
FRANCISCO MANUEL FRANCO,
Defendant and Appellant.
Appointed counsel for defendant Francisco Manuel Franco has asked this court to
review the record to determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal.3d 436.) We need not remand the matter to the trial court
although an improper sentencing procedure persists despite prior admonitions to correct
it. In any event, we affirm the judgment.
I
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.) The factual
summary is taken from the probation report, as stipulated by the parties.
1
On July 20, 2015, defendant threw a rock through the window of a business.
When police arrived and ordered defendant to get on the ground, he took an aggressive
stance and with clenched fists said, “Fuck you bitch. I’ll fuck you up.” Defendant
ignored the officer’s order to get on the ground and instead began to walk away. The
officer sprayed defendant in the face with “OC spray,” but defendant continued to walk
away. When other officers arrived and instructed defendant to get on the ground, he
again took an aggressive stance and with clenched fists said, “I’ll fuck you up.” One of
the officers kicked defendant causing him to fall. However, defendant continued to yell,
“Fuck you” and refused orders to roll onto his stomach. He continued to resist and
struggle until he was taken into custody, after which he continued to yell, “fuck you” and
call officers “bitch.”
Defendant was charged by criminal complaint with felony vandalism of property
valued over $400 (Pen. Code, § 594, subd. (a)),1 and misdemeanor resisting an officer
(§ 148, subd. (a)(1)). The complaint alleged defendant had two prior strike convictions
(§§ 667, subds. (b)-(j) & 1170.12) and six prior prison terms (§ 667.5, subd. (b)).
Defendant entered a negotiated plea of no contest to both charges and admitted
two prior prison terms in exchange for dismissal with a Harvey2 waiver of the balance of
charges and allegations against him. The parties stipulated that the factual basis could be
taken from the probation report.
The trial court denied probation and sentenced defendant to the upper term of
three years, plus two consecutive one-year terms for the prior prison term enhancements,
for an aggregate sentence of five years in state prison. The court awarded defendant 104
days of presentence custody credit (52 actual days plus 52 conduct credits) and imposed
1 Unspecified statutory references are to the Penal Code.
2 People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
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fees and fines as follows: a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole
revocation fine, stayed pending successful completion of parole (§ 1202.45), an $850 fine
(§ 672), a $39 theft fine (§ 1202.5), a $40 court operations assessment (§ 1465.8), and a
$30 criminal conviction fee (Gov. Code, § 70373). The court reserved jurisdiction on the
issue of victim restitution. The abstract of judgment contains a detailed recitation of all
fees, fines, penalties, and assessments and the statutory bases therefor.
Defendant filed a timely notice of appeal. He did not obtain a certificate of
probable cause.
II
Counsel filed an opening brief that sets forth the facts of the case and requests us
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.
As appears to be the custom and practice in Butte County, the trial court’s oral
pronouncement of judgment imposed fees and fines using a unique, cumulative fine and
fee imposition regimen, purportedly applying section 672, which provides for a separate
fine for violations whose statutes do not include fine amounts. Section 672 is not,
however, a vehicle for imposing all mandatory and permissive fines and fees that arise
from separate statutes. In this instance, we need not remand the matter to the trial court
for further proceedings. The abstract of judgment provides a “detailed recitation of all
the fees, fines and penalties on the record,” including their amounts and statutory bases,
as required by this court’s decision in People v. High (2004) 119 Cal.App.4th 1192,
1200. However, we nonetheless admonish the trial court to discontinue its improper
practice of pronouncing a cumulative fine under section 672 and defaulting to its clerk to
parse it correctly in the abstract of judgment.
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Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
BUTZ , J.
DUARTE , J.
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