Filed 9/21/16 P. v. Wesco CA2/5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B265284

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA428288)
         v.

RECONDAL WESCO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Edmund
Willcox Clarke, Jr., Judge. Affirmed as modified.
         Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                    I. INTRODUCTION
         Defendant, Recondal Wesco, appeals from his sentence following a jury trial. On
June 10, 2015, defendant was convicted of violating Penal Code sections 240 and 242.1
The judgment, as modified, is affirmed.
                                    II. BACKGROUND
         In an information, the Los Angeles County District Attorney charged defendant
with two felony counts from an incident on August 10, 2014 involving Mr. Daniel
Castilleja. In Count 1, the district attorney alleged defendant assaulted Mr. Castilleja
with a deadly weapon in violation of section 245, subdivision (a)(1). In Count 2, the
district attorney alleged defendant committed battery with serious bodily injury in
violation of section 243, subdivision (d). The district attorney also alleged both counts
constituted serious felonies under section 1192.7, subdivision (c) and hate crimes under
section 422.75, subdivision (a). The district attorney alleged these two counts were
serious felonies within the meaning of section 1192.7, subdivision (c)(8).
         Defendant plead not guilty. On June 10, 2015, following a jury trial, the jury
found defendant not guilty of the felony counts. The jury convicted defendant of the
lesser offenses of misdemeanor simple assault under section 240 for Count 1 and
misdemeanor battery under section 242 for Count 2. The jury found the hate crime
allegations were not true.
         Following his conviction, defendant was sentenced. The trial court denied
probation. The trial court orally sentenced defendant to 180 days in jail for each
conviction under Count 1 and Count 2. The Count 2 sentence was stayed. Defendant had
302 days of actual days served and 302 days of good time credit, for a total of 604 credit
days. The trial court ordered defendant released as soon as practical. The trial court
imposed fees of: $150 restitution fine; $30 criminal convictions facilities assessment;
and $40 court security fee. However, the trial court ordered all fines stricken in the



1   Further statutory references are to the Penal Code unless otherwise noted.

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interest of justice because defendant had served so much time in excess of his actual
sentence.
                                    III. DISCUSSION
       We appointed counsel to represent defendant on appeal. After examination of the
record, appointed appellate counsel filed an “Opening Brief” in which no issues were
raised. Instead, appointed appellate counsel requested we independently review the
entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See
Smith v. Robbins (2000) 528 U.S. 259, 227-284.) On May 13, 2016, we advised
defendant that he had 30 days within which to personally submit any contentions or
arguments he wishes us to consider. No response was received.
       We requested the parties provide additional briefing on whether the trial court
should have imposed an assessment as to each count. For the imposition of the court
facilities assessment, Government Code section 70373, subdivision (a)(1), provides in
part: “To ensure and maintain adequate funding for court facilities, an assessment shall
be imposed on every conviction for a criminal offense . . . . The assessment shall be
imposed in the amount of thirty dollars ($30) for each misdemeanor or felony . . . .” For
the court operations assessment, section 1465.8, subdivision (a)(1), provides in part: “To
assist in funding court operations, an assessment of forty dollars ($40) shall be imposed
on every conviction for a criminal offense . . . .” Defendant concedes that the court
facilities and court operations assessments should be per count.
       We also requested briefing on whether the trial court could strike the court
facilities and court operations assessments. Defendant contends the trial court’s striking
of the assessments should be affirmed. Defendant asserts the court facilities and court
operations assessments violate the Equal Protection and Due Process Clauses of the
United States and California Constitution.
       Defendant contends the assessments violate equal protection because they
differentiate between convicted and non-convicted defendants. Defendant contends the
lack of consideration regarding a defendant’s ability to pay indicates the assessments are
punishment.

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       Our Supreme Court has held the assessment fees are not punishment: “The
legislative history demonstrates that the court security fee [now the court operations
assessment] was enacted as part of an emergency budgetary measure for the nonpunitive
purpose of funding court security.” People v. Alford (2007) 42 Cal.4th 749, 756; People
v. Wallace (2004) 120 Cal.App.4th 867, 875-876; see People v. Castillo (2010) 182
Cal.App.4th 1410, 1413-1414 [applying People v. Alford rationale to Government Code
section 70373].) Our Supreme Court further held, “The court security fee is not so
punitive in nature or effect that it constitutes punishment.” (People v. Alford, supra, 42
Cal.4th at p. 757; People v. Wallace, supra, 120 Cal.App.4th at pp. 876-877; see People v.
Castillo, supra, 182 Cal.App.4th at p. 1413 [Government Code section 70373 not
punitive].)
       Where a disputed statutory disparity exists that does not implicate a suspect class
or fundamental right, equal protection is denied only where there is no rational
relationship between the disparity of treatment and some legitimate government
purposes. (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) Here, a
rational basis exists for both the court facilities and court operations assessments. The
purpose of the court operations assessment is “[t]o assist in funding court operations . . .
.” (§ 1465.8, subd. (a)(1).) The purpose of the court facilities assessment is “[t]o ensure
and maintain adequate funding for court facilities . . . .” (Gov. Code, § 70373, subd.
(a)(1).) Imposing this fee only on convicted defendants is rational. The United States
Supreme Court held in a case involving Oregon legislature’s decision to impose costs of
legal fees on certain convicted defendants and un-convicted defendants: “A defendant
whose trial ends without conviction or whose conviction is overturned on appeal has been
seriously imposed upon by society without any conclusive demonstration that he is
criminally culpable. His life has been interrupted and subjected to great stress, and he
may have incurred financial hardship through loss of job or potential working hours. His
reputation may have been greatly damaged. The imposition of such dislocations and
hardships without an ultimate conviction is, of course, unavoidable in a legal system that
requires proof of guilt beyond a reasonable doubt and guarantees important procedural

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protections to every defendant in a criminal trial. But Oregon could surely decide with
objective rationality that when a defendant has been forced to submit to a criminal
prosecution that does not end in conviction, he will be freed of any potential liability to
reimburse the State for the costs of his defense. This legislative decision reflects no more
than an effort to achieve elemental fairness and is a far cry from the kind of invidious
discrimination that the Equal Protection Clause condemns.” (Fuller v. Oregon (1974)
417 U.S. 40, 49-50 [fn. omitted.].) Thus, defendant has failed to demonstrate the
assessments violate equal protection.
       Defendant also contends the assessments violate due process because he did not
receive notice and did not have a meaningful opportunity to contest it. The United States
Supreme Court has held, “The fundamental requirement of due process is the opportunity
to be heard ‘at a meaningful time and in a meaningful manner.’ [Citation.]” (Mathews v.
Eldridge (1976) 424 U.S. 319, 333; People v. Allen (2008) 44 Cal.4th 843, 869; People v.
Lawrence (1956) 140 Cal.App.2d 133, 137; see People v. Ramirez (1979) 25 Cal.3d 260.
267-268.) Defendant received adequate notice as both section 1465.8 and Government
Code section 70373 clearly indicate imposition of assessments following a conviction.
(See Stark v. Superior Court (2011) 52 Cal.4th 368, 396 [ignorance of law is not an
excuse for violation]; People v. Hagedorn (2005) 127 Cal.App.4th 734, 748 [citizens are
presumed to know the law].) As for his meaningful opportunity to contest the imposition
of the assessments, defendant received one: his criminal trial. Defendant makes no
arguments concerning his due process rights at the trial. Thus, the assessments do not
violate due process.
       The trial court erred by failing to impose the court facilities and court operations
assessments for each count. The court facilities assessment and court operations
assessment are mandatory and the trial court lacks discretion to strike them. (People v.
Sencion (2012) 211 Cal.App.4th 480, 484; People v. Rodriguez (2012) 207 Cal.App.4th
1540, 1543, fn. 2; People v. Woods (2010) 191 Cal.App.4th 269, 272, 273.) The
judgment will be modified to impose a total of $60 court facilities assessment and $80
court operations assessment.

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       For restitution fines, section 1202.4, subdivision (b)(1), provides in part: “In every
case where a person is convicted of a crime, the court shall impose a separate and
additional restitution fine, unless it finds compelling and extraordinary reasons for not
doing so and states those reasons on the record. [¶] (1) The restitution fine shall be set at
the discretion of the court and commensurate with the seriousness of the offense. . . . If
the person is convicted of a misdemeanor, the fine shall not be less than . . . one hundred
fifty dollars ($150) starting on January 1, 2014, and not more than one thousand dollars
($1,000).” (People v. Woods, supra, 191 Cal.App.4th at p. 273.) Here, the trial court
found compelling and extraordinary reasons not to impose a restitution fine and stated
those reasons for the record. Striking imposition of the restitution fine was within the
discretion of the trial court.
                                      IV. DISPOSITION
       The oral pronouncement of judgment is modified to impose a $30 court facilities
assessment and a $40 court operations assessment as to each count for a total assessment
of $140. The judgment is otherwise affirmed.
                                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                 TURNER, P.J.
       We concur:


       KRIEGLER, J.




       RAPHAEL, J.



         Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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