People v. Sencion

California Court of Appeal Nov 28, 2012 No. No. B236985Published

Before: Turner

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Holding. The court held that court security fees and court facilities assessments are not punitive and must be imposed for every count of conviction, including those stayed under Penal Code section 654. The court also ordered the judgment modified to award 1,341 days of presentence custody credit and to reflect that the sentence on count 2 runs concurrently with count 1.

Issues

Whether court security fees and court facilities assessments must be imposed on counts stayed under Penal Code section 654.
Whether the defendant is entitled to 1,341 days of presentence custody credit.
Whether the abstract of judgment must be corrected to reflect that the sentence on count 2 runs concurrent with the sentence on count 1.

Disposition. modified and affirmed; remanded for correction of abstract of judgment

Quotations verified verbatim against the opinion

“It is well settled that a court facilities assessment also is not punitive in nature.”

“It follows that, because the court facilities assessment, like the court security fee, is not punishment, section 654, subdivision (a) also does not apply to the assessment.”

“The oral pronouncement of judgment is modified to impose a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) as to each count.”

[482]Opinion

TURNER, P. J. I. INTRODUCTION

A jury convicted Santiago Gerardo Sencion, Jr., of second degree murder (Pen. Code,1 § 187, subd. (a)) (count 1); two counts of assault with a semiautomatic firearm (§ 245, subd. (b)) (counts 2 and 4); and discharge of a firearm with gross negligence (§ 246.3, subd. (a)) (count 3). The jury further found defendant personally discharged a firearm in the commission of the murder. (Former § 12022.53, subd. (d).) And the jury found defendant used a firearm in the commission of the two firearm assaults. (Former § 12022.5, subds. (a) & (d).) Defendant was sentenced to 40 years to life in state prison. We modify the judgment and affirm. We hold the trial court was required to impose a court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) as to each count including those stayed under section 654, subdivision (a).

II. DISCUSSION

A. Presentence Custody Credit

The trial court failed to award defendant presentence custody credit. Defendant was in presentence custody from February 23, 2008, to October 25, 2011. Defendant contends, the Attorney General concedes, and we agree he was entitled to 1,341 days of presentence custody credit. (People v. Johnson (2010) 183 Cal.App.4th 253, 288-289 [107 Cal.Rptr.3d 228]; People v. Taylor (2004) 119 Cal.App.4th 628, 645-647 [14 Cal.Rptr.3d 550].) The judgment must be modified to so provide.

B. Restitution Fines

With respect to restitution fines, the trial court orally ordered: “Mandatory minimum restitution fine is imposed as to each count. As to count one, that would be a parole fine of $500, a minimum fine of $500, plus mandatory state fines, and then minimum fines as to the remaining three counts, the $200 level for the parole fine, $200 for the restitution fine.” The trial court’s order is arguably unclear. But the parties agree the trial court imposed a $500 restitution fine (§ 1202.4, subd. (b)) and a $500 parole revocation restitution fine (§ 1202.45) on count 1. And the parties agree the trial court imposed $200 restitution and parole revocation restitution fines on each of the [483]

People v. Sencion

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TURNER, P. J. I. INTRODUCTION

II. DISCUSSION

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C. Count 2: Assault with a Semiautomatic Firearm

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