Filed 2/14/20 (unmodified opinion attached)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION FIVE


 THE PEOPLE,                                  B296613

        Plaintiff and Respondent,             (Los Angeles County
                                              Super. Ct. No. BA471975)
        v.
                                              ORDER MODIFYING OPINION
 EDWIN VILLATORO,                             AND DENYING PETITION FOR
                                              REHEARING
        Defendant and Appellant.              [There is no change in judgment]

       On page 6, replace the first full paragraph “We also
note . . .” with:
       We also note that the defendant has a right to be present when
a fine is imposed upon him. In a criminal case, the trial court’s oral
pronouncement of sentence constitutes the judgment. (People v. Mesa
(1975) 14 Cal.3d 466, 471.) The judgment in a felony case must be
imposed in the presence of the accused (People v. Zackery (2007)
147 Cal.App.4th 380, 386–387), and where a defendant is charged
with a felony and an infraction, the case is treated as a felony case
(§ 691, subd. (f)). Because fines are punishment, a “judgment includes
a fine.” (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.)
Therefore, in a felony case a fine may only be imposed in the presence
of the accused. (Zackery, at pp. 386–389.) Here, the court imposed
the fine at a “nonappearance” hearing in a felony case at which
Villatoro was not present.4
       There is no change in judgment.
       Petition for rehearing is denied.




____________________________________________________________
RUBIN, P. J.                MOOR, J.              KIM, J.




4      In a petition for rehearing, respondent argues correctly
that in infraction cases a defendant need not be present when the
sentence is imposed. (See People v. Kriss (1979) 96 Cal.App.3d
913, 919 [The “defendant may be absent when the court
adjudicates guilt and sentences in a misdemeanor or infraction
proceeding if (1) he is represented by counsel, or (2) he knowingly
and intelligently waives his right to be present.”].) Respondent
has now applied this principle to the present case. However, this
is not an “infraction case” but a felony case, and no lawful
infraction was filed.



                                 2
Filed 1/16/20 (unmodified version)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION FIVE


 THE PEOPLE,                                   B296613

        Plaintiff and Respondent,              (Los Angeles County
                                               Super. Ct. No. BA471975)
        v.

 EDWIN VILLATORO,

        Defendant and Appellant.

      APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed in part and
reversed in part.
      Ricardo D. Garcia, Public Defender, Albert J. Menaster,
Dana Branen, and Nick Stewart-Oaten, Deputy Public
Defenders, for Defendant and Appellant
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Michael C.
Keller and David A. Voet, Deputy Attorneys General, for Plaintiff
and Respondent.
                  ____________________________
       Appellant Edwin Villatoro appeals from the trial court’s
order imposing a $100 fine under Penal Code section 29810 for
failure to complete a firearms disclosure form.1 Section 29810
provides that the failure to timely file a completed firearms
disclosure form “shall constitute an infraction punishable by a
fine not exceeding one hundred dollars ($100).” (§ 29810,
subd. (c)(5).) Villatoro contends the $100 fine is unauthorized by
law in this case because the prosecutor never charged him with
an infraction in violation of section 29810. The Attorney General
takes the position that the trial court properly charged and
convicted Villatoro of the infraction because the prosecutor’s
silence at the proceedings implied the prosecutor’s “concurrence
and approval.” Given that the statutory procedures for
prosecuting an infraction were not followed here, we conclude the
trial court had no authority to impose punishment for committing
an infraction under these circumstances. The trial court’s order
is reversed.
        FACTUAL AND PROCEDURAL BACKGROUND
       Villatoro was charged and pled no contest to assault (§ 245,
subd. (a)(4)). The court accepted Villatoro’s plea and placed him
on three years of formal probation. At the sentencing hearing,
the court imposed a $30 conviction assessment (Gov. Code,
§ 70373), a $40 operations assessment (§ 1465.8), a $300
restitution fine (§ 1202.4), and imposed and stayed a $300 parole
revocation restitution fine (§ 1202.45).
       Villatoro declined to complete the Prohibited Persons
Relinquishment Form, invoking his Fifth Amendment right

1     All further statutory references are to the Penal Code
unless otherwise stated.




                                2
against self-incrimination. The court declined to “uphold[] the
privilege” because Villatoro had no prior convictions. The court
informed Villatoro: “It’s going to be a $100 fine if you don’t sign
this form” and then set a “nonappearance date” for a “Prop. 63
report.”2
       At the subsequent hearing, the following exchange occurred
between Villatoro’s counsel and the trial court, Villatoro not
being present:
       “[Counsel]: Your Honor, if the court’s going to [] set the
fine, he has a right to an infraction and our office is taking it up.
       [Court]: What? You should have had him come in. . . . I told
you at the time of the agreement I was going to do this when I
sentenced him. He waived his appearance.
       [Counsel]: I didn’t want my client to sign a form that’s
going to be seen by the federal government when he faces
collateral consequences of his plea.
       [Court]: Great. Excellent. He has no record. I said that at
the time of the agreement that I was going to impose the fine
because he had no record. So this is his infraction hearing. We
can do it right now. Go ahead.”
       After defense counsel made an argument, the court found
that Villatoro had failed to complete the Prohibited Persons
Relinquishment Form as required by section 29810 and imposed
a $100 fine.
       Villatoro timely appealed.

2     In November 2016, the voters passed Proposition 63, the
“Safety for All Act of 2016,” which amended section 29810 to
provide for the use of the Prohibited Persons Relinquishment
Form. (People v. Romanowski (2017) 2 Cal.5th 903, 904, fn. 2;
§ 29810; Prop 63, § 10.4.)



                                 3
                           DISCUSSION3
       Villatoro argues the trial court lacked the authority to
sentence him for a violation of section 29810 because the
prosecutor never charged him with this infraction. The Attorney
General argues the trial court had the authority to charge
Villatoro because the prosecutor “did not object to the court
holding an infraction proceeding” and, therefore, “the trial court
had the implicit concurrence and approval of the district attorney
to initiate infraction proceedings under section 29810.” The
Attorney General does not cite to any authority for this novel
argument, and we cannot support it.
       Section 29810 provides that the trial court shall, upon
conviction of a defendant for a felony, provide the defendant with
a Prohibited Persons Relinquishment Form. (§ 29810,
subd. (a)(2).) The form requires the defendant to declare any
firearms in his possession and their location “to enable a designee
or law enforcement officials to locate the firearms.” (§ 29810,
subd. (b)(3).) Prior to final disposition or sentencing, the court
must make findings as to whether the court received the

3      Respondent argues we should dismiss the appeal or
transfer it to the superior court appellate division because the
imposition of the $100 fine was analogous to an independent
infraction case. (See § 1466.) Leaving aside the issue of
efficiency, we cannot view the fine in this manner given that the
prosecutor never charged an infraction and no trial was held on
such a charge. Rather, these unusual proceedings involve the
imposition of a fine in conjunction with the sentencing on
Villatoro’s felony plea; no separate charges were filed and the
infraction proceedings were part and parcel with the felony plea
and sentence. We conclude jurisdiction properly rests in this
court, as part of an appeal from a felony conviction. (People v.
Rivera (2015) 233 Cal.App.4th 1085, 1095–1096.)


                                4
completed form. (§ 29810, subd. (c)(3).) “Failure by a defendant
to timely file the complete Prohibited Persons Relinquishment
Form with the assigned probation officer shall constitute an
infraction punishable by a fine not exceeding one hundred dollars
($100).” (§ 29810, subd. (c)(5).)
       Villatoro cites to People v. Municipal Court for Ventura
Judicial District (Pelligrino) (1972) 27 Cal.App.3d 193 for the
principle that a criminal complaint filed without the district
attorney’s authorization is a nullity. (Id. at p. 204.) The
Pelligrino court observed that “all criminal proceedings must be
brought in the name of the People of the State of California”
citing to article six, section 20 of the California Constitution. (Id.
at p. 201.) “Due process of law requires that criminal
prosecutions be instituted through the regular processes of law.
These regular processes include the requirement that the
institution of any criminal proceeding be authorized and
approved by the district attorney.” (Id. at p. 206.)
       Here, the trial court essentially charged defendant with an
infraction, conducted a trial, found him guilty, and imposed the
$100 fine on him for violating section 29810—all in the presence
of the district attorney. Yet, the district attorney did not charge
or approve the charging of an infraction. The People’s position
that the district attorney may “implicitly concur” to a trial court’s
“initiation of infraction proceedings under section 29810” by
simply not voicing opposition is not supported by any authority.
Certainly the district attorney had the opportunity to file the
infraction. Even if it could be said that the prosecutor impliedly
concurred with court’s initiation of infraction proceedings,
nothing in the Attorney General’s appellate briefs suggests that




                                  5
the court has the power to initiate proceedings at all, with or
without the concurrence of the prosecutor, express or implied.
       We also note that the defendant has a right to be present
when a fine is imposed upon him. In a criminal case, the trial
court’s oral pronouncement of sentence constitutes the judgment.
(People v. Mesa (1975) 14 Cal.3d 466, 471.) The judgment must
be imposed in the presence of the accused. (People v. Zackery
(2007) 147 Cal.App.4th 380, 386–387 (Zackery).) Because fines
are punishment, a “judgment includes a fine.” (People v. Hong
(1998) 64 Cal.App.4th 1071, 1080.) Therefore, a fine may only be
imposed in the presence of the accused. (Zackery, at pp. 386–
389.) Here, the court imposed the fine at a “nonappearance”
hearing at which Villatoro was not present.
       Although we reverse the order imposing the fine, we
recognize the practical dilemma that trial courts and district
attorneys may face in order to secure defendants’ compliance
with a law founded on strong public policy. However, frustration
is not a substitute for authority. If prosecuting an infraction is
too onerous a requirement for district attorneys seeking
compliance with section 29810, one remedy would be to seek
legislative change. In the present case, Villatoro was placed on
probation. We express no opinion whether completing the
Prohibited Persons Relinquishment Form could be included as a
term of probation. We hold only that the court may not initiate
infraction proceedings on its own.

///

///




                                6
                        DISPOSITION
      The January 30, 2019 order imposing a $100 fine is
reversed. The judgment is otherwise affirmed.




                                        RUBIN, P. J.
WE CONCUR:




     MOOR, J.




     KIM, J.




                               7
