People v. Zhao CA6

Filed 6/30/14 P. v. Zhao CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039228 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. B1257929)

v.

TONG ZHAO,

Defendant and Appellant.

Defendant Tong Zhao was sentenced to prison for a term of three years and was ordered to pay several fines, fees, and penalty assessments in connection with his criminal convictions. Defendant challenges the imposition of a $900 aggregate penalty assessment as set forth in the trial court’s minutes and the abstract of judgment. Finding no error in the aggregate penalty assessment, we will affirm the judgment but direct the trial court clerk to amend the abstract of judgment to identify the amount and statutory basis for each component of that assessment. I. TRIAL COURT PROCEEDINGS Defendant was charged with sexual penetration of a victim who was unconscious of the nature of the act (Pen. Code, § 289, subd. (d))1 and misdemeanor sexual battery (§ 243.4, subd. (e)(1)). Defendant pleaded no contest to both counts and was sentenced to three years prison. As part of its sentencing pronouncement, the trial court ordered defendant to pay victim restitution in an amount to be determined by the parties, a $720

1 Unspecified statutory references are to the Penal Code.

restitution fine, an $80 court security fee, a $60 criminal conviction fee, and a $129.75 criminal justice administration fee. The court also imposed a “$300 fine plus penalty assessment … pursuant to Section 290.3 of the Penal Code,” but it did not quantify the penalty assessment or break it down into its subparts. The sentencing minutes and abstract of judgment accurately reflected the fines and fees pronounced by the court. Both documents also showed a $900 penalty assessment pursuant to section 290.3. Defendant timely appeals the $900 penalty assessment.2 II. DISCUSSION Defendant contends that the trial court erred by failing to specify the statutory basis for the $900 penalty assessment. Defendant relies on People v. High (2004) 119 CalApp.4th 1192, 1200, where the court, although recognizing the task as tedious, required “all fines and fees [to] be set forth in the abstract of judgment.” High remanded with instructions to prepare an amended abstract of judgment “separately list[ing], with the statutory basis, all fines, fees and penalties imposed on each count.” (Id. at pp. 1200– 1201.) The Attorney General argues that the trial court did not err because it is not required to orally specify the amount of penalty assessment, relying on People v. Voit (2011) 200 Cal.App.4th 1353 and People v. Sharret (2011)