Filed 4/10/15 P. v. Simpson 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                            C077154

                   Plaintiff and Respondent,                                (Super. Ct. No. 13F3576)

         v.

SCOTT CALVIN SIMPSON,

                   Defendant and Appellant.




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       In exchange for dismissal of the remainder of the charges and enhancements,
defendant Scott Calvin Simpson entered a plea of guilty to reckless evasion of a police
vehicular pursuit, assault with a deadly weapon (a car), and driving with a level of blood
alcohol in excess of 0.08 percent. The trial court sentenced him to state prison for the
maximum term specified in the plea bargain (four years).

       On appeal, defendant argues the trial court transgressed the doctrine of separation
of powers in sentencing, erroneously classified him as a habitual traffic offender, and
improperly calculated penalty assessments on his criminal fine. The People concede the
second issue. We shall strike the classification, reduce a state surcharge by 80 cents, and
affirm as modified with directions to prepare an amended abstract of judgment.

                               FACTUAL BACKGROUND

       The circumstances underlying defendant’s convictions are not material to this
appeal. As reflected in the police report (the stipulated factual basis for the plea), in the
early evening of June 9, 2013, a highway patrolman saw defendant driving erratically in
his truck, ultimately veering off the interstate and into the perimeter fence. As the officer
approached, defendant backed the truck out of the fence and sped back onto the highway.
He attempted to outrun the pursuit of another officer at speeds of up to 125 miles per
hour. The pursuit left the freeway and continued through residential neighborhoods,
defendant violating numerous rules of the road (including steering the truck directly at
one of his pursuers and forcing the officer to take evasive action). A breath test indicated
a level of blood alcohol in excess of 0.19 percent.

                                       DISCUSSION




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1.0 The Court’s Remarks Did Not Violate the Doctrine of Separation of Powers

       The trial court did not indicate its intentions before imposing sentence. After
ordering defendant to surrender his driver’s license for transmittal to the DMV for
revocation, defendant being subject to a lifetime license revocation (see Veh. Code,
§ 13351.5), the trial court “ordered [defendant] not to drive a motor vehicle without a
valid California driver’s license” and “to complete whatever alcohol programs are going
to be required of you in order to get your license back.” The proceedings ended at this
point without any invitation to the parties to respond or further opportunity to object.

       Defendant concedes the trial court could have properly advised him of these two
requirements. He contends, however, that the trial court was not authorized pursuant to
any statute to order him as a consequence of his present offenses not to drive and to
complete an alcohol program in connection with any reinstatement of his license, and
therefore violated the doctrine of separation of powers with respect to the determination
of the punishment for a crime. (See People v. Rodriguez (1998) 66 Cal.App.4th 157,
173, fn. 14 [noting punishment is uniquely a prerogative of the legislative branch, which
restricts judicial intrusion on issue as a matter of separation of powers].) He argues the
judgment could result in his punishment for contempt for violating these “orders.”

       We reject the People’s invocation of forfeiture for failing to object. The trial court
did not provide a reasonable opportunity to object because it did not announce a proposed
sentence and invite comment. (See People v. Gonzalez (2003) 31 Cal.4th 745, 752, 755.)

       We note that these “orders” are not reflected in either the court’s minute order or
the abstract of judgment. Defendant cites to the recommendations in the probation
report, which do not have any force of law. More importantly, to the extent the
pronouncement of judgment can be viewed as including “orders” to this effect, such
orders would not amount to anything more than the equivalent of the standard statutory
condition to which all postrelease supervisees are subject: to “obey all laws.” (Pen.


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Code, § 3453, subd. (b).) We thus reject any claim of a violation of the separation of
powers.

2.0 The Finding That Defendant Is a Habitual Traffic Offender Is Unauthorized

         The pronouncement of judgment included the recommendation in the probation
report of a finding that defendant was a habitual traffic offender. Again, this is not
reflected in the court’s minute order or the abstract of judgment. We must address the
matter nonetheless because the pronouncement of judgment prevails over the clerk’s
minutes or the abstract. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388; People
v. Sanchez (1998) 64 Cal.App.4th 1329, 1332; People v. Hong (1998) 64 Cal.App.4th 1071,
1080.)

         A finding designating a defendant as a habitual traffic offender is authorized only
for certain convictions involving an iterated alcohol-related offense. (See Veh. Code,
§ 13350, subd. (b) [cross-referencing provisions that authorize this designation].)
Defendant does not have any previous alcohol-related driving offenses. We will modify
the judgment to strike this designation, as the People properly concede.

3.0 The Penalty Assessments

         Defendant was subject to a $481 base criminal fine (Veh. Code, § 23536. subd.
(a)) and assessments (totaling $1,420, as calculated in the probation report). After
obtaining a waiver from defendant of an oral breakdown of the figures, the court’s
pronouncement of judgment imposed a figure of $1,901 for the fine and assessments.
(This is not reflected in either the minute order or the abstract of judgment.) Defendant
faults two assessments included in the fine.

         Defendant argues the “county penalty” assessment in Shasta County should have
been $3.50 per $10 of the base fine, not $7. (Gov. Code, § 76000, subds. (a), (e).) Even
if the issue is not forfeited for want of a reasonable opportunity to object, nevertheless


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defendant’s claim omits pertinent facts from the record on appeal, e.g., whether Shasta
County has in fact established a local courthouse construction fund (id., § 76100 [we take
judicial notice, however, of § 76245 of this code that “tombstones” the existing fund in
honor of a former state assemblymember]), whether it is in fact transferring such funds to
the state (id., § 70402), and whether its bonded indebtedness for its local court facilities is
yet retired (ibid.). Defendant thus fails to satisfy his burden on appeal to establish that
the trial court erred. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181,
187 [failure to provide adequate record on issue results in issue being resolved against
appellant].)

       Defendant also argues the state surcharge (on top of the state penalty of $10 per
$10 or part of $10 on the base fine) of 20 percent of the base fine (Pen. Code, §§ 1465.7,
subd. (a), 1464) only amounts to $96.20, not $97 as calculated in the probation report. It
is daunting to contemplate the cost of responding to this claim of an 80-cent error.1
Rather than further compound those costs, we will simply assume that defendant is
correct (and await a case in which this would be a material distinction): the statute
calculates the surcharge as a flat percentage rather than $2 for every $10 or part of $10
(which would amount to $98, not $97). We therefore will modify it to the lesser figure.

4.0 Restitution/Parole Revocation Fines Are Incorrect in the Minutes and Abstract

       On our own motion, we observe that the oral pronouncement of judgment imposed
$2,240 as a restitution fine (and imposed and stayed the concomitant parole revocation
fine). The probation report’s calculation reflected $280 per two counts, per each year of
defendant’s sentence. (Pen. Code, § 1202.4, subd. (b)(2).) However, the minute order


1 The Legislature should contemplate whether making such literally nickel-and-dime
issues cognizable on appeal is an effective use of scarce judicial resources, rather than
limiting fee/fine/assessment issues to a postjudgment motion addressed in the first
instance to the trial court and subject only to writ review.


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and abstract of judgment impose only $280 for the two fines. Neither party on appeal
appears to have taken this discrepancy into account.

       In addition to the other necessary corrections, we will direct sua sponte the trial
court to correct these errors in an amended order and abstract because the issue seems to
be straightforward. Any party purporting to be aggrieved may petition for rehearing.
(People v. Taylor (2004) 118 Cal.App.4th 454, 457; Gov. Code, § 68081.) We further
direct the trial court to ensure that the amended abstract complies with People v. High
(2004) 119 Cal.App.4th 1192, 1200.

                                      DISPOSITION

       The judgment is modified to strike the finding that defendant is a habitual traffic
offender and to reduce the state surcharge on the base criminal fine to $96.20. The trial
court is directed to issue an amended minute order and abstract of judgment that reflects
these modifications as well as all components of the oral pronouncement of judgment,
including (pursuant to High) a breakdown of the base fine and penalty assessments for
the benefit of the Department of Corrections and Rehabilitation (to whom it should send a
certified copy of the amended abstract). As modified, the judgment is affirmed.




                                                        BUTZ                   , J.



We concur:



      RAYE                  , P. J.



      NICHOLSON             , J.

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