P. v. Frank CA6

Filed 3/21/13 P. v. Frank CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037578 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC310019)

v.

LAWRENCE FRANK, JR.,

Defendant and Appellant.

Lawrence Frank, Jr. appeals a judgment of conviction that resulted from a no contest plea to carjacking (Pen. Code, § 215).1 On appeal, defendant asserts the court erred in calculating the penalty assessment on his fine. The Attorney General concedes that the court erred in calculating the assessment, but argues that because the amount is deminimus, this court should dismiss the appeal.2 STATEMENT OF THE CASE3 As the result of an incident that occurred on April 9, 2003, defendant was charged by information in September 2004 with four counts of second degree robbery

1 All further unspecified statutory references are to the Penal Code. 2 This court denied the Attorney General’s motion to dismiss the appeal, and deemed the motion to be the respondent’s brief. 3 The underlying facts of this case are irrelevant to the issue on appeal.

(§§ 211/212.5, subd. (c); counts 1, 2, 11, 12), two counts of false imprisonment (§§ 236/237; counts 3 and 4), two counts of carjacking (§ 215; counts 5 and 10), two counts of attempted first degree murder of a peace officer (§§ 664, subd. (f)/187, subd. (a); counts 6 and 7), one count of attempted carjacking (§§ 664/215; count 8), and one count of kidnapping (§ 207, subd. (a); count 9). The information also alleged weapons enhancements as to the charges (§§ 12022, subds. (a)(1), 12022.53, subd. (b)), that he had three prior strike convictions (§§ 667, subds. (b-i), two prior convictions for a serious felonies (§ 667, subd. (a)), and one prior felony conviction for which he served a prison term (§ 667.5, subd. (b)). As part of negotiated disposition, defendant pleaded no contest to one count of carjacking (§ 215; count 5), and admitted that he personally used a firearm in the commission of that crime (§§ 12022.53, subd. (b)). Defendant also admitted the three prior strike convictions, the two prior serious felony convictions, and the prison prior. The remaining charges in the information were dismissed. Prior to sentencing, the court dismissed one of defendant’s prior strike convictions pursuant to section 1385, and People v. Romero (1996) 13 Cal.4th 497. DISCUSSION Defendant asserts the trial court erred in imposing the penalty assessment addition to his $10 fine. Specifically, defendant argues the $28.50 penalty assessment was improperly calculated, and should actually be $22.50. Although the Attorney General argues the appeal should be dismissed because of the deminimus amount at issue, and the fact that defendant failed to raise the issue below, she also concedes the fact that the trial court erred in its calculation of the penalty assessment.4