People v. Irving CA3

Filed 2/24/14 P. v. Irving CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento)

THE PEOPLE, C072953

Plaintiff and Respondent, (Super. Ct. No. 10F01569)

v.

BOYDD IRVING,

Defendant and Appellant.

On November 13, 2009, while confined at the California State Prison in Sacramento, defendant Boydd Irving ran toward Correctional Officer Mark Roberts, raised his right leg, and struck Roberts in the groin area.1

1 Because the matter was resolved by plea and defendant waived referral to the probation department, our statement of facts is taken from the prosecutor’s statement of factual basis for the plea.

1

After his Marsden2 motions were denied, defendant pleaded no contest to battery upon a nonconfined person while confined in prison (Pen. Code, § 4501.5)3 and admitted a 2002 prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The prosecution dismissed 16 strike allegations and an unrelated case (No. 05F02299) in which a jury had deadlocked and a mistrial had been declared. Defendant was sentenced to prison for a stipulated term of four years consecutive to the term he was then serving and was awarded no presentence credit. He was ordered to pay a $240 restitution fine (§ 1202.4), a $240 restitution fine suspended unless parole is revoked (§ 1202.45), a $10 criminal history fee (Veh. Code, § 40508.6), a $20 criminal justice administration fee (Gov. Code, § 29550, subd. (c)), a $340.01 main jail booking fee, and a $62.09 main jail classification fee (Gov. Code, § 29550.2, subd. (a)). We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Our review of the record reveals three errors with respect to fines and fees. Proceeding without the benefit of a probation report, the trial court obtained from the clerk “a sheet” listing statutory fines and fees. The court imposed various fines and fees from the sheet. Among them was a $10 criminal history fee pursuant to Vehicle Code section 40508.6, which allows a superior court to establish administrative assessments, not to exceed $10, for clerical and administrative costs related to a defendant’s Vehicle