People v. Virk CA3

Filed 9/18/15 P. v. Virk CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C077407

Plaintiff and Respondent, (Super. Ct. No. CRF134302)

v.

SHAWN VIRK,

Defendant and Appellant.

Granted probation following a no contest plea to first degree burglary, defendant Shawn Virk contends the trial court imposed an unauthorized fine and assessment under Penal Code section 672.1 Because the record does not show under what provisions the court imposed the amounts in question, we remand the matter so that the court may clarify the record.

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

1

PROCEDURAL BACKGROUND2 Defendant was sentenced simultaneously on three matters: first degree burglary (case No. 13-4302); possession of heroin and petty theft (case No. 13-4189); and receiving stolen property (case No. 13-3804).3 In case No. 13-4302, the order of formal probation, signed by defendant, included the following terms: “[] Pay $300 as a restitution fine for each felony case and $150 as a restitution fine for each misdemeanor case to the State Restitution Fund pursuant to [] [section] 1202.4(b); plus a processing fee of $20 for each felony case and a $10 processing fee for each misdemeanor case; [¶] [] Pay the same amount as ordered above . . . as a probation revocation fine to the State Restitution Fund pursuant to [] [section] 1202.44, said fine to become effective upon the revocation of probation or a conditional sentence. . . .” The order also included a $30 court construction fee for each conviction (Gov. Code, § 70373, subd. (a)(1)) and a $40 court operations assessment for each conviction (§ 1465.8). It mentioned other unspecified fees and assessments which might be imposed, including probation fees, attorney’s fees, and a sentencing fee. In addition, the order bore a stamped entry reading: “FINE & PENALTY ASSESSMENT [¶] Pay $500 as a fine plus $1,550 penalty assessment; plus a processing fee of $35.” Immediately following the probation order in the record is a page that begins: “The Court of Appeal of the State of California, Third Appellate District, has directed this Court to articulate within the probationary order the statutory basis of all penalty assessments that are attached to any fine imposed.” It then lists a set of statutes, including provisions of the Penal Code, the Government Code, and the Health and Safety Code, and sets out the calculation for assessments added to fines according to those