Filed 3/10/14 P. v. Elguez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Colusa)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072570

         v.                                                                       (Super. Ct. No. CR53780)

JEREMY ANTHONY ELGUEZ,

                   Defendant and Appellant.




         Defendant Jeremy Anthony Elguez stole his grandfather’s Jeep Cherokee and
stripped it of parts. Before trial, defendant pleaded guilty to misdemeanor driving with a
suspended or revoked license (Veh. Code, § 14601.1--count III), and admitted allegations
that he had a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)) and served a prior




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prison term (Pen. Code, § 667.5, subd. (b)).1 A jury subsequently convicted him of
unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)--count I).
       The trial court sentenced defendant to seven years in prison, awarded 274 days of
presentence credit, and orally ordered him to pay the following fines, fees, penalties and
assessments: a $240 restitution fine (§ 1202.4); a $240 parole revocation fine
(§ 1202.45); a $40 court security fee (§ 1465.8); a $30 conviction assessment (Gov.
Code, § 70373); a “criminal fine in the base amount of $200” (§ 1464); a $140 fine (Gov.
Code, § 76000); a $100 fine (Gov. Code, § 70372); $20 (Gov. Code, § 76104.7); $200
(Gov. Code, § 76000.5); $200 (§ 1465.7); and $4 (Gov. Code, § 76000.10).2
       The abstract of judgment lists the $240 restitution fine (§ 1202.4), the $240 parole
revocation fine (§ 1202.45), a $40 court operations assessment (§ 1465.8), which the trial
court orally described as a court security fee, and the $30 conviction assessment (Gov.
Code, § 70373).
       On appeal, defendant contends the trial court erred by failing to specify a valid
statutory basis for the $200 “base” fine. We agree.
       The Attorney General argues that because the abstract of judgment lists a different
set of fines and fees from those orally imposed, we must strike them from the abstract. In
addition, the Attorney General claims the trial court should have levied a $40 penalty
pursuant to Government Code section 76104.7 and a $40 penalty pursuant to Government
Code section 76000.5. The Attorney General adds that the $200 assessment imposed
pursuant to section 1465.7 could not be imposed under that statute, and that we should


1 Undesignated statutory references are to the Penal Code.

2 The probation report had recommended that defendant pay a fine of $899, including
penalty assessments, computed as follows: a $200 base fine; $200 (§ 1464); $140 (Gov.
Code, § 76000); $100 (Gov. Code, § 70372); $20 (Gov. Code, § 76104.6); $80 (Gov.
Code, § 76104.7); $40 (Gov. Code, § 76000.5); $40 (§ 1465.7); $40 (§ 1465.8); $35
(Gov. Code, § 70373); and $4 (Gov. Code, § 76000.10).

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modify the abstract of judgment to reflect the trial court’s purported intent to impose the
assessment pursuant to section 1464.
       We will affirm defendant’s convictions, prison sentence and award of presentence
credit. But we will reverse the sentence to the extent it imposes fines, fees, penalties and
assessments, and we will remand the matter for resentencing in that regard. As we
explain in this opinion, the trial court must state the statutory basis and amount of any
base fine it imposes. In addition, the penalty pursuant to Government Code section
76104.7 should be $40 rather than $20, and the penalty pursuant to Government Code
section 76000.5, subdivision (a)(1) should be $40 rather than $200. Moreover, the trial
court must explain how it calculates any penalty imposed pursuant to section 1464.
                                       DISCUSSION
                                               I
       The trial court orally ordered defendant to pay a “criminal fine in the base amount
of $200” pursuant to section 1464. Defendant contends the trial court failed to specify a
valid statutory basis for that “base” fine, because section 1464 does not provide for a base
fine. Defendant argues that even if the trial court intended to impose a $200 base fine
under some other authority and then impose an additional $200 penalty pursuant to
section 1464, the trial court failed to explain how a $200 penalty pursuant to section 1464
could be derived from the other fines, penalties, and assessments imposed by the court.
Defendant is correct.
       Section 1464, subdivision (a)(1), provides in pertinent part that there shall be
levied a 10 dollar penalty for every 10 dollars, or part of 10 dollars, of every fine,
penalty, or forfeiture imposed and collected by the courts for all criminal Vehicle Code
violations (except parking offenses). Accordingly, a penalty imposed under section 1464
cannot be a base fine or a fine in a “base” amount. The penalty must correspond to fines,
penalties or forfeitures imposed pursuant to other statutes.



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       The Attorney General asserts that although the trial court did not state a statutory
basis for its “base fine,” the trial court was apparently referring to “its power to assess a
base fine of up to $5000 for the commitment offense, as specifically allowed under
Vehicle Code section 10851, rather than under the stated authority of section 1464 which
generally addresses the computation of penalty assessments.” The Attorney General
therefore requests that we modify the abstract of judgment by entering a base fine of
$200 pursuant to Vehicle Code section 10851. We decline this request.
       The trial court said the fine it imposed in the base amount of $200 was pursuant to
section 1464. We will not speculate that the trial court had some other statute in mind, or
that it would have imposed a base fine in the same amount had it realized a different
statute applied.
       The trial court did not explain how it derived the $200 penalty imposed pursuant
to section 1464. It is possible the trial court misspoke, inadvertently omitting the $200
base fine recommended by the probation report immediately before the $200 penalty
under section 1464, and instead referring to the $200 penalty under section 1464 as the
“base amount.” But the probation report does not specify a statutory basis for the
recommended base fine. Accordingly, we will remand the matter to the trial court with
directions to state the statutory basis and amount of any base fine it imposes, and to
explain how it calculates any penalty imposed pursuant to section 1464.
                                              II
       The Attorney General argues the abstract of judgment “memorializes a different
set of fines and fees” from those recited orally by the trial court, and that we must strike
all of the fines and fees in the abstract of judgment because the oral pronouncement of
sentence prevails over any contradictory written order. (Cf. People v. Zackery (2007)
147 Cal.App.4th 380, 385). But the fines and fees listed in the abstract are mandatory.
(§ 1202.4, 1202.45, 1465.8; Gov. Code, § 70373.) Moreover, the trial court orally
imposed the fines and fees listed in the abstract of judgment; the only difference is that

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the trial court orally described a $40 court security fee pursuant to section 1465.8, but the
abstract lists a $40 court operations assessment pursuant to that section. The abstract
does not require correction in this regard. (§ 1465.8.)
       The Attorney General next claims the trial court should have levied a penalty of
$40 pursuant to Government Code section 76104.7, rather than $20. The Attorney
General is correct. The statute provides that “there shall be levied an additional state-
only penalty of four dollars ($4) for every ten dollars ($10), or part of ten dollars ($10), in
each county upon every fine, penalty, or forfeiture imposed and collected by the courts
for all criminal offenses[.]” (Gov. Code, § 76104.7, subd. (a).) Because defendant was
convicted of two offenses (one by the jury and one by the court on his pretrial plea), the
penalty under this provision should be $40.
       The Attorney General further asserts that the proper penalty under Government
Code section 76000.5 was $40, not $200 as imposed by the trial court. We agree. The
statute provides that “in addition to the penalties set forth in Section 76000, the county
board of supervisors may elect to levy an additional penalty in the amount of two dollars
($2) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or
forfeiture imposed and collected by the courts for all criminal offenses[.] . . . This
penalty shall be collected together with and in the same manner as the amounts
established by Section 1464 of the Penal Code.”3 (Gov. Code, § 76000.5, subd. (a)(1).)
Thus, there is no basis for imposing a $200 penalty pursuant to Government Code section
76000.5 where, as here, the defendant is convicted of only two offenses.




3 The last sentence means that the trial court must impose this penalty if a county board
of supervisors has elected to have it imposed. (People v. Castellanos (2009)
175 Cal.App.4th 1524, 1528-1529.) The record does not reflect whether the Colusa
County Board of Supervisors has done so, but because there was no objection in this case
to the imposition of the penalty, we presume proper authorization. (Cf. Evid. Code,
§ 664.)

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       Finally, the Attorney General asserts that the $200 assessment imposed under
section 1465.7 cannot be imposed under that statute, and requests that we modify the
abstract of judgment to reflect the trial court’s purported intent to impose this assessment
“under the authority of closely related section 1464.”
       The Attorney General’s statement that a $200 assessment cannot be imposed in
this case under section 1465.7 is correct. The statute provides in part: “(a) A state
surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty
assessment as specified in subdivision (a) of Section 1464. [¶] (b) This surcharge shall
be in addition to the state penalty assessed pursuant to Section 1464 of the Penal Code
and may not be included in the base fine used to calculate the state penalty assessment as
specified in subdivision (a) of Section 1464.” Absent a properly calculated base fine, we
cannot determine what assessment might be properly imposed under section 1465.7.
       But we decline the Attorney General’s request to modify the abstract to reflect a
$200 assessment pursuant to section 1464. On this record, we cannot determine that the
assessment would be properly imposed under section 1464. The trial court must consider
this matter on remand.
                                      DISPOSITION
       Defendant’s convictions, prison sentence and award of presentence credit are
affirmed. The portion of his sentence imposing fines, fees, penalties and assessments is
reversed, and the matter is remanded to the trial court for resentencing of the fines, fees,
penalties and assessments. The trial court is directed to state the statutory basis and
amount of any base fine it imposes, and to explain how it calculates any penalty imposed
pursuant to section 1464. The penalty pursuant to Government Code section 76104.7
should be $40 rather than $20, and the penalty pursuant to Government Code section
76000.5, subdivision (a)(1) should be $40 rather than $200. The trial court is further
directed to prepare a second amended abstract of judgment reflecting the imposition of



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fines, fees, penalties and assessments, and to forward a certified copy of the second
amended abstract of judgment to the Department of Corrections and Rehabilitation.


                                                              MAURO                     , J.


We concur:


               RAYE                  , P. J.


               DUARTE                , J.




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