People v. Bailey CA3

Opinion

Filed 9/29/26 P. v. Bailey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C104317 Plaintiff and Respondent, (Super. Ct. No. 25CF01892) v. DONALD JENE BAILEY, Defendant and Appellant.

Appointed counsel for Donald Jene Bailey 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.) Finding no arguable error that would result in a disposition more favorable to him, we will affirm the judgment. We will, however, order the trial court to issue a corrected abstract of judgment to reflect the fines and fees the court imposed at sentencing. BACKGROUND Bailey and an accomplice broke into an occupied residence they mistakenly believed was an unoccupied “ ‘drug house.’ ” The two fled when Bailey discovered the owner in her bedroom. The People charged Bailey with first degree burglary. Bailey pleaded no contest. At the sentencing hearing, the trial court sentenced Bailey to the upper term of six years in prison. With respect to fines and fees, the trial court “referred [the parties] to page 15 1 in the probation report.” The court then imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a corresponding $300 parole revocation fine (suspended unless parole is revoked) (§ 1202.45), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373).1 The court also imposed a crime prevention fund fine (§ 1202.5) in the amount of $39, payable to the Oroville Police Department. The court added that the fine amount “include[d] the fines, fees, assessments, and surcharges in paragraph 4 on page 15 in the probation report.” Paragraph 4 on page 15 of the probation report stated in relevant part: “Pay a theft fine per § 1202.5 PC to … OPD … in the amount of $10.00, a $2.00 Court Surcharge (per § 1465.7 PC), a $5.00 State Court Facilities Construction Fund fee (per § 70372(a) GC), a $10.00 state penalty assessment (per § 1464 PC), a $1.00 DNA Identification Fund fee (per § 76104.6 GC), a $1.00 DNA Identification Fund fee (per § 76104.7 GC)[,] and a $7.00 county penalty assessment (per § 76000 GC)[.] Total: $39.00.” (Underlining and bolding omitted.) The abstract of judgment lists the crime prevention fund fine in the amount of $39 and does not list any associated penalty assessments. Bailey filed a timely notice of appeal. He did not request a certificate of probable cause. DISCUSSION Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Bailey was advised by counsel of the right to file a supplemental brief within 30 days of the filing of the opening 1 Undesignated statutory references are to the Penal Code.

2 brief. Bailey did not file a supplemental brief. Having undertaken an examination of the entire record, we find no arguable error that is favorable to Bailey. Our review of the record, however, disclosed an error in the abstract of judgment. “Courts may correct clerical errors at any time, and appellate courts … that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Here, the trial court orally imposed a section 1202.5 fine, which included “the fines, fees, assessments, and surcharges in paragraph 4 on page 15 in the probation report.” The abstract of judgment, however, does not list the individual penalty assessments imposed by the court or their statutory bases, as required. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Accordingly, we will direct the trial court to correct the clerical error in the abstract of judgment to reflect a $10 fine under section 1202.5 and assessments in the following amounts: a $2.00 court surcharge (§ 1465.7), a $5.00 state court facilities construction fee (Gov. Code, § 70372, subd. (a)), a $10.00 state penalty assessment (§ 1464), a $1.00 DNA identification fund fee (Gov. Code, § 76104.6), a $4.00 DNA identification fund fee (Gov. Code, § 76104.7), and a $7.00 county penalty assessment (Gov. Code, § 76000).2 2 The probation report incorrectly listed the Government Code section 76104.7 penalty assessment as $1. Government Code section 76104.7, subdivision (a) provides for a penalty assessment of “four dollars ($4) for every ten dollars ($10).” Because the section 1202.5 fine is $10, the correct section 76104.7 penalty assessment is $4. We construe the trial court’s judgment as imposing a $4 assessment under section 76104.7, because that is the amount provided by statute and is consistent with the total fine— $39—that the court orally imposed.

3 DISPOSITION The judgment is affirmed. The clerk of the superior court is directed to prepare a corrected abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.

/s/ FEINBERG, J.

We concur:

/s/ ROBIE, Acting P. J.

/s/ MAURO, J.