Filed 3/21/14 P. v. Garcia CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                      F065797

                   v.                                                    (Super. Ct. No. MCR041799)

GREGORY GARCIA,                                                                     OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Alex Coolman, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


        Before Kane, Acting P.J., Franson, J., and Peña, J.
       A jury convicted appellant, Gregory Garcia, of robbery (count 1/Pen. Code,
§ 211),1 and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury also
found true a personal use of a firearm enhancement in count 1 (§ 12022.53, subd. (b)). In
a separate proceeding, the court found true five prior prison term enhancements (§ 667.5,
subd. (b)).
       On September 11, 2012, the court sentenced Garcia to an aggregate term of 20
years eight months, the upper term of five years on his robbery conviction, a 10-year use
enhancement in that count, a consecutive eight-month term on Garcia’s possession of a
firearm conviction, and five one-year prior prison term enhancements.
       On appeal, Garcia contends the evidence is insufficient to sustain the court’s true
findings with respect to two of the prior prison term enhancements, and 2) the court
imposed an unauthorized fine of $870 that must be stricken. Respondent contends the
court erred by its failure to impose certain mandatory assessments. We will find merit
only to respondent’s contention.
                                         FACTS2
       On August 23, 2011, Garcia entered the Flores Market in Madera and robbed the
owner’s daughter of $150 at gunpoint.
       The following day, the daughter had her husband call 911 after seeing Garcia in
the parking lot of a store in Madera in a truck that resembled the one used in the robbery.
Sheriff’s deputies detained Garcia and during an ensuing search of the truck, found a
loaded revolver under the center cushion of the truck’s bench seat.




1      All further statutory references are to the Penal Code, unless otherwise indicated.
2     The facts pertaining to Garcia’s offenses are abbreviated because they are not
germane to the issues he raises.



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                                      DISCUSSION
                          The Sufficiency of the Evidence Issue
       One of Garcia’s prior prison term enhancements was based on his February 2,
1988, conviction in San Bernardino County Superior Court case No. SCR44609 for
receiving stolen property in violation of section 496. A second enhancement was based
on his June 24, 1992, conviction in San Bernardino County Superior Court case No.
SCR51512 for possession of a controlled substance in violation of Health and Safety
Code section 11370.1, subdivision (a). In order to prove these enhancements, the
prosecutor introduced certified copies of fingerprint cards from the Department of
Corrections and Rehabilitation (CDCR) for a Gregory Garcia with a birth date of June 5,
1958. One card referenced Garcia’s offense as “SBDNO CR-44609A, ... Ct.1A, RSP ...
[¶] … [¶] (496 PC) [¶] Ct. 1B, FAIL TO APPEAR (1320(b)PC).” It also indicated that
Garcia had been sentenced to a term of two years eight months and that Garcia was
received at “RCC/CIM” on March 10, 1988. The second card referenced Garcia’s
offense as “SCR51512 ..., POSS CS W/FA (11370.1(a) H&S).” It also indicated that
Garcia had been sentenced to a three-year term and that Garcia was received at “RCC
CIM” on June 24, 1992.
       Garcia cites People v. Williams (1996) 50 Cal.App.4th 1405 (Williams) and
People v. Miles (2008) 43 Cal.4th 1074 (Miles) to contend that a “fingerprint card,
standing alone, is insufficient evidence that a defendant has suffered a particular prior
conviction.” Thus, according to Garcia, the evidence is insufficient to prove he suffered
the two convictions alluded to above. We disagree.
       “Imposition of a sentence enhancement under ... section 667.5 requires proof that
the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of
that conviction; (3) completed that term of imprisonment; and (4) did not remain free for
five years of both prison custody and the commission of a new offense resulting in a
felony conviction. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563.) “The

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definition of substantial evidence in a criminal case is a familiar one. It is ‘evidence
which is reasonable, credible, and of solid value―such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶] A trier of
fact is entitled to draw reasonable inferences from certified records offered to prove a
defendant suffered a prior conviction and served a prison term. [Citation.]” (Williams,
supra, 50 Cal.App.4th at p. 1413, italics added.)
       Here, the court could reasonably find from the information on one fingerprint card
that in San Bernardino County Superior Court case No. SCR44609, Garcia was convicted
of receiving stolen property in violation of section 496, and failed to appear in violation
of section 1320, subdivision (b), that he was sentenced to an aggregate prison term of two
years eight months, and that he was received by the CDCR on March 10, 1988, to begin
serving that term.3 From the other card, the court could reasonably find that in San
Bernardino County Superior Court case No. SCR51512, Garcia was convicted of
possession of a controlled substance in violation of Health and Safety Code section
11370.1, subdivision (a), that he was sentenced to a three-year prison term, and that he
was received by the CDCR on June 24, 1992, to begin serving that term.
       Miles and Williams are inapposite. In each of those cases, the court found that
information in a certified copy of a fingerprint card was insufficient to prove the nature of
the defendant’s conviction, i.e., that the defendant’s prior conviction qualified as a serious
felony under California law. (Miles, supra, 43 Cal.4th at pp. 1079, 1093-1094; Williams,
supra, 50 Cal.App.4th at pp. 1413-1414.) However, neither case held, as Garcia
contends, that the fact of a prior conviction cannot be proved based only on information
contained in a certified copy of a fingerprint card. Accordingly, we reject Garcia’s
sufficiency of evidence claim.

3     The court erroneously stated that the date of Garcia’s receiving stolen property
conviction was February 2, 1998.



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                                       The $870 Fine
       The probation department recommended that the court impose a base fine of $200
pursuant to section 211, which totaled $870 with assessments. At Garcia’s sentencing
hearing, the court followed the department’s recommendation and imposed a total fine of
$870 pursuant to section 211. Garcia contends this fine must be stricken because section
211 does not authorize a fine. He further contends that because the imposition of the fine
and assessments constitutes an unauthorized sentence, this issue is cognizable on appeal
even though he did not object in the trial court. Respondent contends that, pursuant to
section 672, the court could have imposed the base $200 fine on Garcia’s felon in
possession of a firearm offense. Therefore, according to respondent, since the trial court
had fundamental jurisdiction to impose the base fine, Garcia forfeited his right to
challenge the fine on appeal by his failure to object in the trial court. We agree with
respondent.
       Generally, a sentence is unauthorized “where it could not lawfully be imposed
under any circumstance in the particular case. Appellate courts are willing to intervene in
the first instance because such error is ‘clear and correctable’ independent of any factual
issues presented by the record at sentencing.... [¶] In essence, claims deemed waived on
appeal involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.” (People v. Scott (1994) 9 Cal.4th 331, 354.)
       Section 672, in pertinent part, provides:

              “Upon a 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
       cases of felonies, in addition to the imprisonment prescribed.”
       Section 672 authorizes a fine for any crime “in relation to which no fine is herein
prescribed.” Since no fine is prescribed for felon in possession of a firearm (see
§ 12021), the trial court could have imposed the $200 fine on that conviction pursuant to


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section 672. (Cf. People v. Allen (2001) 88 Cal.App.4th 986, 999 [although $2,000 fine
not authorized by Penal Code section pursuant to which it was imposed, trial court could
lawfully impose such fine pursuant to section 672].) Accordingly, we conclude the
imposition of the $200 fine, which totaled $870 with assessments, was not an
unauthorized sentence and Garcia forfeited his right to challenge this fine by his failure to
object in the trial court.
                               The Mandatory Assessments
       Respondent contends the court erred by its failure to impose two mandatory $40
court security assessments pursuant to section 1465.8 and two $30 court-operations
assessments pursuant to Government Code section 70373, subdivision (a)(1). Garcia
concedes and we agree.
       Section 1465.8 requires the court to impose a mandatory $40 court security
assessment on every conviction for a criminal offense; Government Code section 70373,
subdivision (a)(1) requires the trial court to impose a mandatory $30 assessment on every
conviction for a criminal offense. Since Garcia was convicted of two offenses, the trial
court erred when it imposed only one assessment pursuant to section 1465.8 and only one
assessment pursuant to Government Code section 70373, subdivision (a)(1).
                                      DISPOSITION
       The judgment is modified to include an additional $40 assessment pursuant to
Penal Code section 1465.8 and an additional $30 assessment pursuant to Government
Code section 70373, subdivision (a)(1). The trial court is directed to prepare an amended
abstract of judgment that is consistent with this opinion and to forward a certified copy to
the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.




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