People v. Schmidt

RENNER, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CRF2000153)

Appointed counsel for defendant Dustin Schmidt filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the record, we conclude the trial court erred in failing to orally impose mandatory restitution fines. We shall affirm defendant's convictions and remand to allow the trial court to impose an appropriate restitution fine and parole revocation restitution fine.

I. BACKGROUND

On January 21, 2020, defendant was charged with inflicting a corporal injury on a spouse, cohabitant, or child's parent (Pen. Code, § 273.5, subd. (a)—count 1), willfully harming or injuring a child (§ 273a, subd. (a)—count 2), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)—count 3), and misdemeanor vandalism (§ 594, subd. (b)(2)(A)—count 4). That same day, the court issued a criminal protective order prohibiting defendant from contacting the victim, S.B.

Further undesignated statutory references are to the Penal Code.

A week later, defendant pled no contest to the corporal injury charge and entered a Harvey waiver as to counts two and four, and the remaining counts were subsequently dismissed. The parties stipulated that the police report could serve as the factual basis for the plea. According to the police report as recounted in the probation report, on January 19, 2020, defendant grabbed S.B., the mother of his child, by the throat, shoulders, and upper chest, leaving red marks on her neck and chest.

People v. Harvey (1979) 25 Cal.3d 754.

Under the terms of the plea agreement, defendant was released on a Cruz waiver with an order to attend a six-month residential drug treatment program prior to judgment and sentencing. If he successfully completed the program, the court would grant him probation; if he did not successfully complete the program, the court would sentence him to two, three, or four years in state prison. The protective order was terminated at the victim's request.

People v. Cruz (1988) 44 Cal.3d 1247. --------

On February 18, 2020, defendant was ordered to report to the Salvation Army program on February 20, 2020. If defendant was not admitted to the program, he was directed to report to the court within 24 hours. The court set a hearing on February 24 to review whether defendant had started the Salvation Army program.

Defendant did not enter the program and failed to appear at the February 24 hearing. During a Cruz waiver hearing in May 2020, defendant testified that he went to the Salvation Army program on February 20, but arrived shortly before they stopped doing intake. He was sent home and did not present himself within 48 hours to inform the court he was not in the program because he got nervous; he did not turn himself into law enforcement. After the hearing, the court found that defendant had violated the terms of his Cruz waiver.

At the sentencing hearing on June 15, 2020, the court sentenced defendant to state prison for the low term of two years. The court imposed a $40 court security assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373). The court found defendant had no ability to pay a $500 domestic violence fee and a $250 domestic violence prevention program fee. While the court stated that it had "already imposed the restitution fine, [c]ourt security fee, and conviction assessment," the court never actually orally imposed a restitution fine under section 1202.4 or a corresponding parole revocation restitution fine under section 1202.45. The court minutes and abstract of judgment reflect a minimum $300 restitution fine, however. Defendant was awarded 70 days of actual credit plus 70 days of conduct credit.

Defendant filed a timely notice of appeal without a certificate of probable cause.

II. DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his 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.

After examining the entire record, we have discovered a sentencing error related to the restitution fines. Although the abstract of judgment reflects $300 in minimum restitution fines, the trial court failed to orally impose a restitution fine and an identical parole revocation restitution fine, which are mandatory. (§§ 1202.4, 1202.45; People v. Mitchell (2001) 26 Cal.4th 181, 185-186 [Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls].) Based on the court's comments at the sentencing hearing, it appears the court mistakenly believed it had already imposed the restitution fines although it had not actually done so. Thus, we shall remand the matter for the trial court to impose the required restitution fines.

III. DISPOSITION

Defendant's convictions are affirmed. The matter is remanded to allow the trial court to orally impose a restitution fine under section 1202.4 and a parole revocation restitution fine under section 1202.45. The clerk is directed to prepare an amended abstract of judgment reflecting the restitution fines and to forward a copy to the Department of Corrections and Rehabilitation.

/S/_________

RENNER, J.

We concur:

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HULL, Acting P. J.

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MAURO, J.