People v. Gutierrez CA3

Filed 4/27/21 P. v. Gutierrez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092128

Plaintiff and Respondent, (Super. Ct. No. CRF201612)

v.

JOSE LUIS GUTIERREZ, JR.,

Defendant and Appellant.

Appointed counsel for defendant, Jose Luis Gutierrez, Jr., has asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Our review of the record has found errors in the court’s imposition of fines, fees, and assessments that we will direct the trial court to correct; we otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2020, the prosecution charged defendant with driving under the influence of alcohol (DUI) within 10 years of three or more DUI convictions; driving with a blood-

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alcohol content of 0.08 percent or above within 10 years of three or more DUI convictions; driving under the influence of alcohol within 10 years of a prior DUI conviction; driving with a blood-alcohol content of .08 percent or above within 10 years of a prior DUI conviction; driving with a suspended or revoked license; and operating a vehicle without an ignition interlock device. As to the first four counts, the prosecution alleged defendant had a blood-alcohol content of 0.15 percent or more. The prosecution also alleged defendant had prior convictions in 2019, 2017, and 2011 for DUI as to the first two counts and a prior conviction in 2019 for DUI as to the third and fourth counts. Defendant pled no contest to the driving with a blood-alcohol content of 0.08 percent or above within 10 years of three or more DUI convictions count, and admitted the excessive blood-alcohol content enhancement. The parties stipulated to a factual basis for the plea, saying defendant had been driving under the influence with a blood- alcohol content of 0.23 percent and had four prior DUI convictions, three of which had occurred in the last 10 years. The remaining counts were dismissed. At the sentencing hearing, the trial court imposed a two-year split sentence, with 364 days to be served in custody or alternative custody and 366 days to be served on mandatory supervision. The court did not orally impose any fines or fees, but stated it would stay “all fines and fees in this case” to give defendant “some breathing space.” The abstract of judgment reflects the imposition of a $300 restitution fine, a $40 court operations assessment, and a $30 conviction assessment. The minute order for the hearing does not reflect any fines or fees, but notes the fines and fees were stayed, while a county prison minute order indicates a $300 restitution fine and $300 probation revocation fine. The mandatory supervision order imposes a $300 restitution fine, a $300 mandatory supervision revocation restitution fine, a $30 processing fee, a DUI fine of $700, $2,100 in penalty assessments on the DUI fine, an unspecified $35 processing fee on that fine, an unspecified $50 alcohol education fee, a $50 laboratory analysis fee, a $50 alcoholism program fee, a $50 alcohol abuse education and prevention fund fee, a