Filed 10/29/14 P. v. Rocco CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039859
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. F1345244)

         v.

FRANK ROCCO,

         Defendant and Appellant.



         Defendant Frank Rocco appeals a judgment of conviction following his guilty plea
to elder abuse in violation of Penal Code section 368, subdivision (b)(1).1 On appeal,
defendant asserts the trial court erred in imposing a $10,000 fine and a $31,000 penalty
assessment, because the court lacked authority to impose such fine.
                                          STATEMENT OF THE CASE2
         As a result of incidents of domestic violence perpetrated by defendant on his 86-
year-old mother, defendant was charged with elder abuse in violation of section 368,
subdivision (b)(1) in 2013. The complaint also contained an enhancement for great
bodily injury upon an elder in excess of 70 years. (§ 12022.7, subd. (c).)


         1
              All further statutory references are to the Penal Code.
         2
         The underlying facts of this case are omitted because they are not relevant to the
issues on appeal.
          Defendant pleaded guilty to the charge, and admitted the enhancement. The court
sentenced defendant to seven years in prison, consisting of the mitigated term of two
years for elder abuse, and five years for the enhancement. In addition to the prison term,
the court also ordered defendant to pay a restitution fine in the amount of $1,680, and
what it termed a “general fund fine” of $10,000 plus a penalty assessment of $31,000.
                                          DISCUSSION
          Defendant asserts the $10,000 fine and a $31,000 penalty assessment are
unauthorized in this case, and must be stricken.
          The court imposed the fine as follows: “Mr. Rocco, I am concerned—because of
the constellation of health issues and inability to sustain employment, I’m concerned that
you have been improperly relying on your mother’s assets for the last several years. I’m
concerned that you might otherwise inherit from the decedent. I do not believe that I
have the authority to affect probate or any inheritance that you might receive, but I do
have one other tool: I impose a general fund fine of $10,000 plus $31,000 penalty
assessment for a total of $41,000.”
          When imposing the fine in this case, the court did not specify any statutory
authority under which it was acting; it merely that it was imposing a “general fund fine.”
Moreover, the court abstract in the record states: “Cnt 1 $10,000 + PA $31,000.” The
abstract does not state the statutory basis for the fine imposed.
          Section 672 is the general catchall provision for the imposition of fines in criminal
cases, providing the “[a]mount of fine when none it fixed.” (§ 672) The provision states:
“Upon conviction for any crime punishable by imprisonment in any jail or prison, in
relation to which no fine is herein prescribed, the court may impose a fine on the offender
not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand
dollars ($10,000) in the case of felonies, in addition to the imprisonment prescribed.”
(Ibid.)

                                                2
        Here, defendant was convicted of physical elder abuse, which is a violation of
section 368, subdivision (b)(1). Section 368, subdivision (b)(1) fixes the maximum fine
for a violation of the section at $6,000. (§ 368, subd. (b)(1)). Because the statute under
which defendant was charged also states the fixed fine for a violation, the provisions of
section 672 do not apply, and section 672 cannot form a statutory basis for the fine this
case. Therefore, the court improperly ordered a fine in the amount of $10,000.
        Because defendant was convicted of violating section 368, subdivision (b)(1), he
was subject to a maximum fine in the amount of $6,000, and the court could have
properly ordered a fine under this Penal Code section. However, the record reflects the
court’s motivation for ordering the fine in this case was to disgorge defendant of any
inheritance he might receive from his mother’s estate. The court made no mention of
ordering the fine for the criminal conduct for which defendant was charged and
convicted.
        Defendant’s crime was physical elder abuse, not financial abuse or fraud. To
order a fine specifically intended to punish defendant for relying on his mother’s
financial support in the past, and to prevent defendant from inheriting from his mother’s
estate was improper. The $10,000 fine in this case served to punish defendant for
conduct for which he was neither charged, nor convicted. This was a violation of
defendant’s constitutional rights. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 478-
483.)
                                       DISPOSITION
        The $10,000 fine and $31,000 penalty assessment are stricken. As modified, the
judgment is affirmed.




                                             3
                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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