P. v. Richard CA3

Filed 5/13/13 P. v. Richard CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C071124

v. (Super. Ct. No. SF119537A)

ISAAC AARON RICHARD,

Defendant and Appellant.

Defendant Isaac Aaron Richard pled guilty to robbery (Pen. Code, § 211) and street terrorism (Pen. Code, § 186.22, subd. (a)). Defendant also admitted a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)). In accordance with the terms of his plea, the trial court sentenced defendant to serve an aggregate term of 18 years in state prison. At sentencing, the trial court ordered defendant to pay numerous fines and fees including restitution in an amount to “be determined by the Department of Corrections [and Rehabilitation].” The trial court also ordered defendant to pay a $240 restitution fine (Pen. Code, § 1202.4) and a $24 “surcharge.” On appeal, defendant contends the trial court erred in ordering the Department of Corrections and Rehabilitation to calculate restitution. We disagree and conclude the trial court‟s order was proper.

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Defendant also contends the trial court erred in imposing a $24 “surcharge” without identifying the statutory authority for that fee and asks this court to vacate the fee. The People concede the trial court was required to identify the statutory basis for the surcharge and request remand on that issue alone. DISCUSSION1 A. Restitution Defendant contends the trial court‟s imposition of restitution in an amount “[to] be determined by the Department of Corrections [and Rehabilitation],” violates both statutory and constitutional law. Specifically, defendant asserts the order violated his right to due process and Penal Code section 1202.4, subdivision (f). Even assuming defendant has not forfeited this claim for failing to raise his objection in the trial court, the claim fails. (People v. Scott (1994) 9 Cal.4th 331, 352, fn. 15; People v. Keele (1986) 178 Cal.App.3d 701, 708.) Penal Code section 1202.4 states, in relevant part, “in every case in which a victim has suffered economic loss as a result of the defendant‟s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court.” (Pen. Code, § 1202.4, subd. (f); italics added.) Our decision in People v. Lunsford (1998) 67 Cal.App.4th 901 (Lunsford) is directly on point. In Lunsford, we found proper a trial order directing the Office of Revenue Reimbursement to calculate restitution. (Id. at pp. 903-904.) Defendant attempts to distinguish Lunsford on the ground that the Office of Revenue