People v. Villatoro

Filed 1/16/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B296613

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA471975) v.

EDWIN VILLATORO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed in part and reversed in part. Ricardo D. Garcia, Public Defender, Albert J. Menaster, Dana Branen, and Nick Stewart-Oaten, Deputy Public Defenders, for Defendant and Appellant Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Michael C. Keller and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

Appellant Edwin Villatoro appeals from the trial court’s order imposing a $100 fine under Penal Code section 29810 for failure to complete a firearms disclosure form.1 Section 29810 provides that the failure to timely file a completed firearms disclosure form “shall constitute an infraction punishable by a fine not exceeding one hundred dollars ($100).” (§ 29810, subd. (c)(5).) Villatoro contends the $100 fine is unauthorized by law in this case because the prosecutor never charged him with an infraction in violation of section 29810. The Attorney General takes the position that the trial court properly charged and convicted Villatoro of the infraction because the prosecutor’s silence at the proceedings implied the prosecutor’s “concurrence and approval.” Given that the statutory procedures for prosecuting an infraction were not followed here, we conclude the trial court had no authority to impose punishment for committing an infraction under these circumstances. The trial court’s order is reversed. FACTUAL AND PROCEDURAL BACKGROUND Villatoro was charged and pled no contest to assault (§ 245, subd. (a)(4)). The court accepted Villatoro’s plea and placed him on three years of formal probation. At the sentencing hearing, the court imposed a $30 conviction assessment (Gov. Code, § 70373), a $40 operations assessment (§ 1465.8), a $300 restitution fine (§ 1202.4), and imposed and stayed a $300 parole revocation restitution fine (§ 1202.45). Villatoro declined to complete the Prohibited Persons Relinquishment Form, invoking his Fifth Amendment right