Filed 4/28/14 P. v. Gaspar CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039761
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1116084)

         v.

JOSE ANTONIO GASPAR,

         Defendant and Appellant.



                                                INTRODUCTION
         Defendant Jose Antonio Gaspar pleaded no contest to two counts of assault with
a deadly weapon (Pen. Code, § 245, subd. (a)(1)).1 As to both counts, defendant
admitted allegations that he inflicted great bodily injury (§ 12022.7, subd. (a)) and that
he committed the offenses for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)).
         The trial court sentenced defendant to 13 years in prison. For count 1, the trial
court imposed the three-year midterm, with a consecutive 10-year term for the associated
gang enhancement and a concurrent three-year term for the associated great bodily injury
enhancement. For count 2, the trial court imposed a concurrent two-year term and struck
both enhancements. The trial court also ordered defendant to pay a presentence

         1
             All further statutory references are to the Penal Code unless otherwise indicated.
investigation fee “not to exceed [$]450” and a $6,800 restitution fine (§ 1202.4), and it
imposed but suspended a $6,800 parole revocation restitution fine (§ 1202.45).
       On appeal, defendant contends and the Attorney General agrees that the trial court
erred in imposing both the great bodily injury enhancement and the gang enhancement as
to count 1. Defendant also contends and the Attorney General concedes that the abstract
of judgment and sentencing minute order should be modified to delete any reference to a
waiver of appeal rights. Furthermore, defendant argues that the trial court erred in
calculating the restitution fine and the parole revocation restitution fine. Lastly,
defendant argues that the court erred by imposing a presentence investigation fee because
the court failed to follow statutory procedure and did not determine his ability to pay.
       For the reasons stated below, we will modify the judgment to stay the great bodily
injury enhancement as to count 1, delete the reference to a waiver of appeal rights from
the abstract of judgment and sentencing minute order, and reduce the restitution fine and
the suspended parole revocation restitution fines to $5,200 each.
                   FACTUAL AND PROCEDURAL BACKGROUND2
       A.       Count 1
       On September 19, 2011, Jaime Florentino walked past defendant and another
individual. Thereafter, defendant and the other individual chased Florentino and stabbed
him. Florentino sustained a laceration to his right arm and a deep stab wound to his right
torso. Florentino stated that he was affiliated with the “Southside” gang. Defendant was
affiliated with the “West Side” northern street gang.
       B.       Count 2
       On June 24, 2011, defendant and another individual approached Pedro Valdez,
who was standing outside his apartment with his girlfriend and his daughter. Defendant
asked Valdez whether he “banged” and Valdez answered that he was not affiliated with


       2
           The factual background is taken from the probation reports.

                                              2
any gangs. Defendant told Valdez that his name was “Flaco” and that he “kicked it with
VST.” Defendant then shook Valdez’s hand, took out a 6-inch knife, and stabbed
Valdez. Valdez sustained a broken rib on his left side, a laceration to his left lung, and a
laceration to his liver.
       C.      Charges, Pleas, and Sentencing
       The District Attorney filed a consolidated first amended complaint charging
defendant with two counts of assault with a deadly weapon (§ 245, subd (a)(1)). As to
both counts, the complaint alleged that defendant personally inflicted great bodily injury
(§ 12022.7, subd. (a)) and that he committed the offenses for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(C)).
       On August 10, 2012, defendant pleaded no contest to both assault counts and
admitted the associated gang and great bodily injury allegations.
       On May 31, 2013, the trial court sentenced defendant to an aggregate prison term
of 13 years. On count 1, the court sentenced defendant to the midterm of three years,
with a consecutive 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)(C))
and a concurrent three-year term for the great bodily injury enhancement (§ 12022.7,
subd. (a)). On count 2, the court imposed the low term of two years to run concurrent
with count 1. The enhancements on count 2 were stricken. The court imposed several
fines and fees, including a $6,800 restitution fine and a suspended $6,800 parole
revocation restitution fine. The court also imposed a presentence investigation fee not to
exceed $450. The court stated that “all these fees will be referred for evaluation to
determine your ability to pay.”
                                      DISCUSSION
       A.      Great Bodily Injury Enhancement on Count 1
       Defendant asserts and the Attorney General concedes that as to count 1, the trial
court erred by imposing a concurrent three-year enhancement for great bodily injury



                                              3
under section 12022.7, subdivision (a) in addition to a 10-year gang enhancement under
section 186.22, subdivision (b)(1)(C). We find the concession appropriate.
       Section 186.22, subdivision (b)(1)(C) provides that when the underlying “felony is
a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be
punished by an additional term of 10 years.” A violent felony includes “[a]ny felony in
which the defendant inflicts great bodily injury on any person other than an accomplice
which has been charged and proved as provided for in Section 12022.7 . . . .” (§ 667.5,
subd. (c)(8).)
       Section 12022.7, subdivision (a) provides that “[a]ny person who personally
inflicts great bodily injury on any person other than an accomplice in the commission of a
felony or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.”
       Under section 1170.1, subdivision (g): “When two or more enhancements may be
imposed for the infliction of great bodily injury on the same victim in the commission of
a single offense, only the greatest of those enhancements shall be imposed for that
offense.”
       In People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), the court held that
section 1170.1, subdivision (g) prohibits the imposition of both a three-year enhancement
under section 12022.7, subdivision (a) and a 10-year enhancement under section 186.22,
subdivision (b)(1)(C) when “[t]he same infliction of great bodily injury on the same
victim” turns an “underlying assault offense into a ‘violent felony’ under section 667.5.”
(Gonzalez, supra, at p. 1332.) Instead, the court held that the trial court should impose
“only the greatest of those enhancements.” (Ibid.)
       In this case, the trial court imposed a 10-year term for the gang enhancement
(§ 186.22, subd. (b)(1)(C)) and a concurrent three-year term for the great bodily injury
enhancement (§ 12022.7, subd. (a)). Both enhancements were imposed based on
defendant’s infliction of great bodily injury on the same victim in the commission of a

                                             4
single offense. Thus, section 1170.1, subdivision (g) precludes the imposition of both
enhancements; only the 10-year gang enhancement should have been imposed.
(Gonzalez, supra, 178 Cal.App.4th at pp. 1331-1332.)
       The Attorney General suggests that this case should be remanded for resentencing,
contending that the trial court may not have stricken the great bodily injury enhancement
as to count 2 if it knew that it could not impose that enhancement as to count 1. In
Gonzalez, the trial court had imposed consecutive terms for the great bodily injury and
gang enhancements. (Gonzalez, supra, 178 Cal.App.4th at pp. 1327.) After concluding
the trial court erred, the appellate court remanded the matter so the trial court could
“restructure” the defendant’s sentence. (Id. at p. 1332.) Here, the trial court imposed a
concurrent term for the great bodily injury enhancement associated with the assault
charged in count 1. Further, the trial court imposed a concurrent term for the assault
charged in count 2. Remanding for resentencing will have no foreseeable effect on
defendant’s sentence. Therefore, we will order the great bodily injury enhancement as to
count 1 stayed. (See Cal. Rules of Court, rule 4.447.)
       B.     References to Waiver of Appeal Rights
       Next, defendant contends and the Attorney General concedes that references to
waiver of appeal rights should be deleted from the abstract of judgment and the
sentencing minute order. We agree.
       Both the sentencing minute order and the abstract of judgment state that
defendant’s appeal rights were waived. However, nothing in the record indicates
defendant entered such a waiver. In fact, defendant expressly indicated at sentencing that
he would file an appeal at some point in time.
       Errors in the abstract of judgment may be corrected by this court on appeal.
(People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will order that
references to defendant’s waiver of appeal rights be deleted from the abstract of judgment
and the sentencing minute order.

                                              5
       C.     Restitution Fine and Parole Revocation Restitution Fine
       Defendant contends that the trial court erred in calculating the restitution fine and
the parole revocation restitution fine at $6,800 each. He claims that the amount of these
fines was erroneously based on the probation-recommended prison sentence of 17 years
rather than the 13-year prison sentence that the trial court imposed.
       The Attorney General argues that defendant forfeited his challenge to the amount
of these fines because he did not object in the trial court. Defendant contends that the
claim was not forfeited as the trial court failed to exercise informed discretion.
Alternatively, defendant argues that defense counsel’s failure to object to the court’s
calculation error constituted ineffective assistance.
       1.     Procedural History
       The probation report that was prepared on October 19, 2012 recommended that the
trial court impose a 17-year sentence. The probation report further recommended that the
trial court impose a restitution fine of $6,800 “under the formula permitted by Penal Code
Section 1202.4 (b) (2),” and that it impose but suspend “[a]n additional Restitution Fine
of an amount equal to that imposed under Penal Code Section 1202.4.”
       At sentencing, the trial court stated that it would “follow the recommendations of
the probation department” with the exception of the recommended 17-year prison
sentence. The court imposed a 13-year prison sentence and imposed various fines and
fees. The court ordered: “Restitution fund fine is $6,800. There is an equal amount that
I am going to impose and suspend that [sic] under 1202.45 of the Penal Code.”
       2.     Analysis
       Section 1202.4, subdivision (a) provides that when a person is convicted of a
crime, the court must order the defendant to pay a restitution fine unless the court finds
extraordinary and compelling reasons for not doing so. Former section 1202.4,




                                              6
subdivision (b)(1)3 provided that the restitution fine must be set at the discretion of the
court, commensurate with the seriousness of the offense but not less than $200 and not
more than $10,000. Former section 1202.4, subdivision (b)(2) provided that “[i]n setting
a felony restitution fine, the court may determine the amount of the fine as the product of
two hundred dollars ($200) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted.” Former section 1202.4, subdivision (d) provided that in setting
the fine in excess of the felony minimum, the court shall consider any relevant factors
and it lists several nonexclusive factors, including the defendant’s inability to pay, the
seriousness and gravity of the offense and the circumstances of its commission, any
economic gain derived by the defendant as a result of the crime, the extent to which any
other person suffered any pecuniary or intangible losses, and the number of crime
victims. Finally, section 1202.45 requires the court to impose an additional parole
revocation restitution fine in the same amount imposed under section 1202.4,
subdivision (b), with the additional fine suspended unless and until parole is revoked.
       Defendant relies on People v. Le (2006) 136 Cal.App.4th 925 (Le), in which the
trial court imposed a $4,800 restitution fine and a suspended $4,800 parole revocation
fine, specifying it was using the statutory formula to calculate the fines. (Id. at pp. 930,
932.) This court found that section 654 applied to a burglary count for which a one year
four month sentence had been imposed, and that “the section 654 ban on multiple
punishment is violated when the trial court considers a felony conviction for which the
sentence should have been stayed pursuant to section 654 as part of the court’s
calculation of the restitution fine under the formula provided by section 1202.4,
subdivision (b)(2).” (Id. at pp. 932, 934.) Further, this court found it “reasonably

       3
        Section 1202.4, subdivision (b) was amended effective January 1, 2011, to
increase the minimum amount of the fine, but the prior versions of the statute are
applicable in this case. (Stats. 2010, ch. 351, § 9; Stats. 2011, ch. 45, § 1.)

                                              7
probable that the trial court would have imposed a smaller restitution fine (and thus a
smaller corresponding parole revocation fine)” if it knew that it could not have used
the burglary count to calculate the restitution fine under the section 1202.4,
subdivision (b)(2) formula. (Id. at p. 935.) This court therefore ordered the fines
reduced. (Id. at p. 936.)
       This case did not involve a section 654 error, and in this case, the trial court at
sentencing did not expressly state that it calculated the restitution fine and the parole
revocation restitution fine based on the formula under section 1202.4, subdivision (b).
However, the trial court did specify that it would “follow the recommendations of the
probation department.” The probation report recommended that the fines be set at $6,800
“under the formula permitted by Penal Code Section 1202.4 (b) (2).” Application of the
statutory formula based on the 17-year term that the probation department recommended
results in a $6,800 fine: the product of $200 times 17 (number of years of imprisonment
that the probation department recommended) times two (number of felony convictions).
Thus, the record supports an inference that the court imposed the $6,800 restitution fine
and parole revocation restitution fine based on application of the statutory formula to the
17-year term that the probation department recommended, rather than for any other
reason. We will therefore order the restitution fine and the parole revocation restitution
fine modified, i.e., so as to use the correct number of years of imprisonment to calculate
the amount of fines. (See Le, supra, 136 Cal.App.4th at p. 934.) Accordingly, we will
reduce the restitution fine and the parole revocation restitution fine to $5,200 each: the
product of $200 times 13 (number of years of imprisonment) times two (number of
felony convictions).
       D.     Presentence Investigation Fee
       Lastly, defendant contends that the trial court erred in ordering a presentence
investigation fee “not to exceed $450.00” because there is no evidence in the record that
he has the ability to pay that fee. Defendant also argues that the trial court failed to

                                              8
comply with statutory requirements of a hearing and determination of an ability to pay
before imposing the fee. Defendant argues that the proper remedy would be to strike the
presentence investigation fee. Although defendant acknowledges that he did not object in
the trial court, he claims that the court’s imposition of only a “ ‘maximum’ and
suggesting a future revenue referral” denied him the opportunity to object. Defendant
alternatively argues that trial counsel was ineffective for failing to object to the fee.
       Relying on People v. McCullough (2013) 56 Cal.4th 589, People v. Valtakis
(2003) 105 Cal.App.4th 1066, and People v. Snow (2013) 219 Cal.App.4th 1148, the
Attorney General contends that defendant has forfeited his claim.4
       1.     Procedural History
       The probation report prepared on October 19, 2012, recommended that a
“Presentence Investigation Fee not to exceed $450.00 be imposed pursuant to
Section 1203.1b of the Penal Code.” Defendant declined to participate in an interview
with the probation officer. As such, there is nothing in the probation report regarding
defendant’s employment history or other relevant social data.
       At sentencing, the trial court adopted the various fines and fees that were
recommended in the probation report. One such fee was the presentence investigation fee
“not to exceed [$]450.” The court stated that “all these fees will be referred for
evaluation to determine [defendant’s] ability to pay.”




       4
         The California Supreme Court is currently considering whether a defendant
who fails to object to an order for payment of fees that were imposed pursuant to
section 1203.1b forfeits a claim that the trial court erred in failing to make a finding
of an ability to pay. (People v. Aguilar (2013) 219 Cal.App.4th 1094, review granted
Nov. 26, 2013, S213571; People v. Trujillo, review granted Nov. 26, 2013, S213687
[nonpub. opn.].)


                                               9
       2.     Statutory Background
       Section 1203.1b authorizes the trial court to order a defendant “to pay all or a
portion of the reasonable cost” of “any probation supervision” and “any presentence
investigation.” (Id., subd. (a).) Before ordering a defendant to pay such costs, however,
the court must follow the procedures articulated in section 1203.1b.
       Section 1203.1b, subdivision (a) mandates the following procedures: “The court
shall order the defendant to appear before the probation officer, or his or her authorized
representative, to make an inquiry into the ability of the defendant to pay all or a portion
of these costs. The probation officer, or his or her authorized representative, shall
determine the amount of payment and the manner in which the payments shall be made
to the county, based upon the defendant’s ability to pay. The probation officer shall
inform the defendant that the defendant is entitled to a hearing, that includes the right to
counsel, in which the court shall make a determination of the defendant’s ability to pay
and the payment amount. The defendant must waive the right to a determination by the
court of his or her ability to pay and the payment amount by a knowing and intelligent
waiver.”
       Section 1203.1b, subdivision (b) further mandates: “When the defendant fails to
waive the right . . . to a determination by the court of his or her ability to pay and the
payment amount, the probation officer shall refer the matter to the court for the
scheduling of a hearing to determine the amount of payment and the manner in which the
payments shall be made. The court shall order the defendant to pay the reasonable costs
if it determines that the defendant has the ability to pay those costs based on the report of
the probation officer, or his or her authorized representative.”
       3.     Analysis
       Even assuming that the issue has not been forfeited, defendant’s challenge fails.
Section 1203.1b, subdivision (a) does not require the trial court to make a finding on a
defendant’s ability to pay the presentence investigation fee prior to ordering a defendant

                                              10
to report for a determination by the probation officer or the Department of Revenue on
the issue. Here, the trial court referred defendant “for evaluation to determine” his ability
to pay the fee, thereby complying with the statutory obligation of section 1203.1b,
subdivision (a). By conditioning defendant’s presentence investigation fee on the
determination of his ability to pay the fee, the order imposed no current financial
obligation on defendant. Instead, it set a maximum financial obligation of $450 and left
open what portion, if any, of that maximum defendant would pay. After the probation
officer or the Department of Revenue determined defendant’s ability to pay, defendant
would have the right to challenge that determination at an ability-to-pay hearing before
the trial court. Thus, any challenge to the presentence investigation fee is premature.
                                      DISPOSITION
       The judgment is modified to (1) reflect a stay on the great bodily injury
enhancement (Pen. Code, § 12022.7, subd. (a)) imposed as to count 1, (2) reflect that the
restitution fine (Pen. Code, § 1202.4, subd. (b)) and stayed parole revocation restitution
fine (Pen. Code, § 1202.45) are reduced to $5,200 each, and (3) delete any reference to
defendant’s waiver of appeal rights from the abstract of judgment and minutes of the
sentencing hearing. As modified, the judgment is affirmed.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.




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