People v. Stevens CA2/5 ( 2016 )

Filed 2/3/16 P. v. Stevens CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B265482
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA101531)
v.
JAMES CHARLES STEVENS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L.
Meyer, Judge. Affirmed as modified.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, and Nathan Guttman, Deputy Attorney General,
for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, James Charles Stevens, pled guilty to three counts of grand theft (Pen.
Code, § 484e, subd. (d))1 and one count of forgery (§ 475, subd. (a)). Defendant also
admitted prior conviction and prison term allegations were true. (§§ 667, subd. (d),
667.5, subd. (b), 1170.12, subd. (b).) He was sentenced to five years in state prison. We
modify the oral pronouncement of judgment with respect to the court operations
assessment. We affirm the judgment in all other respects.
II. DISCUSSION
A. Defendant’s Notice of Appeal is Operative
Defendant filed his notice of appeal without securing a probable cause certificate.
(§ 1237.5; Cal. Rules of Court, rule 8.304(b).) However, the notice of appeal properly
indicates a noncertificate ground for appeal, “This appeal is based on the sentence or
other matters occurring after the plea that do not affect the validity of the plea. (Cal.
Rules of Court, rule 8.304 (b).)”2 Therefore, defendant’s appeal is operative as to
postplea matters. (Rule 8.304(b)(4)(B); People v. Buttram (2003) 30 Cal. 4th 773, 780-
781; People v. Jones (1995) 10 Cal. 4th 1102, 1105, 1108, disapproved on another point
in In re Chavez (2003) 30 Cal. 4th 643, 656.) Defendant may assert postplea claims that
do not attack the plea’s validity. (Rule 8.304(b)(5); People v. Buttram, supra, 30 Cal.4th
at pp. 776, 780; People v. Panizzon (1996) 13 Cal. 4th 68, 74-75.)
1 Further statutory references are to the Penal Code.
2 Further references to a rule are to the California Rules of Court.
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B. Appointed Appellate Counsel has Fully Complied with her Responsibilities
We appointed counsel to represent defendant on appeal. After examining the
record, appointed appellate counsel filed an “Opening Brief” in which no issues were
raised. Instead, appointed appellate counsel requested we independently review the
entire record on appeal pursuant to People v. Wende (1979) 25 Cal. 3d 436, 441. (See
Smith v. Robbins (2000) 528 U.S. 259, 277-284.) We have examined the entire record
and are satisfied appointed appellate counsel has fully complied with her responsibilities.
There are no arguable postplea issues favorable to defendant.
C. Defendant’s Claims are not Cognizable on Appeal Absent a Probable Cause
Certificate
On December 10, 2015, we advised defendant of his right to file a supplemental
brief within 30 days. Defendant timely filed a letter brief. Defendant asserts he was
offered four years but, without objection, was sentenced to five years. In the trial court,
defendant was represented by Harvey Sherman. According to defendant, Mr. Sherman
failed to file any motions including a motion to strike prior conviction allegations. And
defendant does not feel the crime warranted the punishment imposed. The record
demonstrates defendant agreed to the five-year sentence and admitted the prior
conviction and prison term allegations as part of his plea bargain. At the outset of the
plea hearing, Mr. Sherman stated, “Your Honor, he would accept the five years.” The
trial court subsequently advised defendant he was facing up to 15 years, but it was willing
to offer 5 years. Defendant’s claims challenge the validity of his plea and are not
cognizable on appeal absent issuance of a probable cause certificate. (People v. Buttram,
supra, 30 Cal.4th at pp. 776, 780; People v. Hester (2000) 22 Cal. 4th 290, 295; People v.
Panizzon, supra, 13 Cal.4th at pp. 72-73, 76-79, 89.)
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D. The Oral Pronouncement of Judgment Must be Modified as to the Court Operations
Assessment
We asked the parties to brief the question whether the oral pronouncement of
judgment must be modified to impose a $160 court operations assessment under section
1465.8, subdivision (a)(1)). The trial court orally imposed a $120 court operations
assessment. However, because defendant was convicted on four counts, the correct
amount was $160. (§ 1465.8, subd. (a)(1); People v. Sencion (2012) 211 Cal. App. 4th
480, 484-485; People v. Crittle (2007) 154 Cal. App. 4th 368, 370-371; see People v.
Alford (2007) 42 Cal. 4th 749, 758, fn. 6.) Moreover, the assessment is mandatory.
(People v. Rodriguez (2012) 207 Cal. App. 4th 1540, 1543, fn. 2; People v. Woods (2010)
191 Cal. App. 4th 269, 272.) Therefore, the failure to properly impose it results in an
unauthorized sentence which may be corrected on appeal even absent an objection in the
trial court. (People v. Smith (2001) 24 Cal. 4th 849, 852; People v. Robinson (2012) 209
Cal. App. 4th 401, 405.)
Defendant cites People v. Tillman (2000) 22 Cal. 4th 300, 302-303, for the
proposition the prosecution forfeited the issue by failing to object. That argument has no
merit. In Tillman, the trial court failed to articulate a discretionary sentencing choice and
the prosecution did not object. Here, the trial court imposed a legally unauthorized
sentence. The trial court had no discretion with respect to the amount of the court
operations assessment. Such an error is reviewable regardless of whether the prosecution
objected in the trial court. (People v. Smith, supra, 24 Cal.4th at pp. 852-853; In re K.F.
(2009) 173 Cal. App. 4th 655, 660.)
The oral pronouncement of judgment must be modified to reflect a $160 court
operations assessment. The abstract of judgment is correct in this regard and need not be
amended.
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III. DISPOSITION
The oral pronouncement of judgment is modified to impose a $160 court
operations assessment under Penal Code section 1465.8, subdivision (a)(1). The
judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
BAKER, J.
KUMAR, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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