People v. Simard CA2/2

Filed 3/30/16 P. v. Simard CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B259920

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA395034) v.

DAVID SIMARD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert C. Vanderet, Judge. Affirmed.

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant David Simard (defendant) appeals from the judgment entered after his conviction of conspiracy and grand theft, raising only a sentencing issue. He contends that the trial court erroneously based penalty assessments and a surcharge upon the restitution fines imposed pursuant to Penal Code sections 1202.4 and 1202.44.1 Defendant’s contention is without merit as the record demonstrates that the penalty assessments and surcharge were not based upon the restitution fines, but properly based upon a fine imposed pursuant to section 672. We thus affirm the judgment. BACKGROUND2 Defendant and a codefendant were charged with 12 felonies, as follows: conspiracy to defraud another of property (count 1), in violation of section 182, subdivision (a)(4); three counts of grand theft of personal property (counts 2, 3, and 4), in violation of section 487, subdivision (a); one count of counterfeiting an official seal (count 5), in violation of section 472; four counts of forgery (counts 6, 7, 8, and 9), in violation of section 470, subdivision (d); two counts of preparing false documentary evidence (counts 10 and 11), in violation of section 134; and one count of procuring and offering a false or forged instrument (count 12), in violation of section 115, subdivision (a). As to each count, the information alleged that the value of the property taken exceeded $200,000 within the meaning of section 12022.6, subdivision (a)(2). On motion of defendant pursuant section 1118.1 made at the close of the prosecution case at trial, the trial court dismissed counts 3 through 12, leaving counts 1 and 2 for the jury’s determination. The jury found defendant guilty of both counts as charged. As to count 2, the jury found true the allegation that the value of the property exceeded $200,000. On November 3, 2014, the trial court suspended imposition of sentence, and placed defendant on formal probation for five years. As a term and condition of