People v. Villatoro

Filed 2/14/20 (unmodified opinion attached) 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. ORDER MODIFYING OPINION EDWIN VILLATORO, AND DENYING PETITION FOR REHEARING Defendant and Appellant. [There is no change in judgment]

On page 6, replace the first full paragraph “We also note . . .” with: We also note that the defendant has a right to be present when a fine is imposed upon him. In a criminal case, the trial court’s oral pronouncement of sentence constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The judgment in a felony case must be imposed in the presence of the accused (People v. Zackery (2007) 147 Cal.App.4th 380, 386–387), and where a defendant is charged with a felony and an infraction, the case is treated as a felony case (§ 691, subd. (f)). Because fines are punishment, a “judgment includes a fine.” (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) Therefore, in a felony case a fine may only be imposed in the presence of the accused. (Zackery, at pp. 386–389.) Here, the court imposed

the fine at a “nonappearance” hearing in a felony case at which Villatoro was not present.4 There is no change in judgment. Petition for rehearing is denied.

____________________________________________________________ RUBIN, P. J. MOOR, J. KIM, J.

4 In a petition for rehearing, respondent argues correctly that in infraction cases a defendant need not be present when the sentence is imposed. (See People v. Kriss (1979) 96 Cal.App.3d 913, 919 [The “defendant may be absent when the court adjudicates guilt and sentences in a misdemeanor or infraction proceeding if (1) he is represented by counsel, or (2) he knowingly and intelligently waives his right to be present.”].) Respondent has now applied this principle to the present case. However, this is not an “infraction case” but a felony case, and no lawful infraction was filed.

2

Filed 1/16/20 (unmodified version) CERTIFIED FOR PUBLICATION