Filed 2/14/20 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWIN VILLATORO,

Defendant and Appellant.

B296613

(Los Angeles County

Super. Ct. No. BA471975)

ORDER MODIFYING OPINION

AND DENYING PETITION FOR 

REHEARING

[There is no change in judgment]

On page 6, replace the first full paragraph “We also 

note . . .” with:

We also note that the defendant has a right to be present when 

a fine is imposed upon him. In a criminal case, the trial court’s oral

pronouncement of sentence constitutes the judgment. (People v. Mesa

(1975) 14 Cal.3d 466, 471.) The judgment in a felony case must be 

imposed in the presence of the accused (People v. Zackery (2007) 

147 Cal.App.4th 380, 386–387), and where a defendant is charged 

with a felony and an infraction, the case is treated as a felony case

(§ 691, subd. (f)). Because fines are punishment, a “judgment includes 

a fine.” (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) 

Therefore, in a felony case a fine may only be imposed in the presence 

of the accused. (Zackery, at pp. 386–389.) Here, the court imposed 
2

the fine at a “nonappearance” hearing in a felony case at which 

Villatoro was not present.4

There is no change in judgment.

Petition for rehearing is denied.

____________________________________________________________

RUBIN, P. J. MOOR, J. KIM, J.

 

4 In a petition for rehearing, respondent argues correctly 

that in infraction cases a defendant need not be present when the 

sentence is imposed. (See People v. Kriss (1979) 96 Cal.App.3d 

913, 919 [The “defendant may be absent when the court 

adjudicates guilt and sentences in a misdemeanor or infraction 

proceeding if (1) he is represented by counsel, or (2) he knowingly 

and intelligently waives his right to be present.”].) Respondent 

has now applied this principle to the present case. However, this 

is not an “infraction case” but a felony case, and no lawful 

infraction was filed.
Filed 1/16/20 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWIN VILLATORO,

Defendant and Appellant.

B296613

(Los Angeles County

Super. Ct. No. BA471975)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, James R. Dabney, Judge. Affirmed in part and 

reversed in part.

Ricardo D. Garcia, Public Defender, Albert J. Menaster, 

Dana Branen, and Nick Stewart-Oaten, Deputy Public 

Defenders, for Defendant and Appellant

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Michael C. 

Keller and David A. Voet, Deputy Attorneys General, for Plaintiff 

and Respondent.

____________________________
2

Appellant Edwin Villatoro appeals from the trial court’s 

order imposing a $100 fine under Penal Code section 29810 for 

failure to complete a firearms disclosure form.1 Section 29810 

provides that the failure to timely file a completed firearms 

disclosure form “shall constitute an infraction punishable by a 

fine not exceeding one hundred dollars ($100).” (§ 29810, 

subd. (c)(5).) Villatoro contends the $100 fine is unauthorized by 

law in this case because the prosecutor never charged him with 

an infraction in violation of section 29810. The Attorney General 

takes the position that the trial court properly charged and 

convicted Villatoro of the infraction because the prosecutor’s 

silence at the proceedings implied the prosecutor’s “concurrence 

and approval.” Given that the statutory procedures for 

prosecuting an infraction were not followed here, we conclude the 

trial court had no authority to impose punishment for committing 

an infraction under these circumstances. The trial court’s order 

is reversed.

FACTUAL AND PROCEDURAL BACKGROUND

Villatoro was charged and pled no contest to assault (§ 245, 

subd. (a)(4)). The court accepted Villatoro’s plea and placed him 

on three years of formal probation. At the sentencing hearing, 

the court imposed a $30 conviction assessment (Gov. Code, 

§ 70373), a $40 operations assessment (§ 1465.8), a $300 

restitution fine (§ 1202.4), and imposed and stayed a $300 parole 

revocation restitution fine (§ 1202.45). 

Villatoro declined to complete the Prohibited Persons 

Relinquishment Form, invoking his Fifth Amendment right 

 

1 All further statutory references are to the Penal Code

unless otherwise stated.
3

against self-incrimination. The court declined to “uphold[] the 

privilege” because Villatoro had no prior convictions. The court 

informed Villatoro: “It’s going to be a $100 fine if you don’t sign 

this form” and then set a “nonappearance date” for a “Prop. 63 

report.”2

At the subsequent hearing, the following exchange occurred 

between Villatoro’s counsel and the trial court, Villatoro not 

being present:

“[Counsel]: Your Honor, if the court’s going to [] set the 

fine, he has a right to an infraction and our office is taking it up. 

[Court]: What? You should have had him come in. . . . I told 

you at the time of the agreement I was going to do this when I 

sentenced him. He waived his appearance. 

[Counsel]: I didn’t want my client to sign a form that’s 

going to be seen by the federal government when he faces 

collateral consequences of his plea. 

[Court]: Great. Excellent. He has no record. I said that at 

the time of the agreement that I was going to impose the fine 

because he had no record. So this is his infraction hearing. We 

can do it right now. Go ahead.” 

After defense counsel made an argument, the court found 

that Villatoro had failed to complete the Prohibited Persons 

Relinquishment Form as required by section 29810 and imposed 

a $100 fine. 

Villatoro timely appealed. 

 

2 In November 2016, the voters passed Proposition 63, the 

“Safety for All Act of 2016,” which amended section 29810 to 

provide for the use of the Prohibited Persons Relinquishment 

Form. (People v. Romanowski (2017) 2 Cal.5th 903, 904, fn. 2; 

§ 29810; Prop 63, § 10.4.)
4

DISCUSSION3

Villatoro argues the trial court lacked the authority to 

sentence him for a violation of section 29810 because the 

prosecutor never charged him with this infraction. The Attorney 

General argues the trial court had the authority to charge 

Villatoro because the prosecutor “did not object to the court 

holding an infraction proceeding” and, therefore, “the trial court 

had the implicit concurrence and approval of the district attorney 

to initiate infraction proceedings under section 29810.” The 

Attorney General does not cite to any authority for this novel 

argument, and we cannot support it.

Section 29810 provides that the trial court shall, upon 

conviction of a defendant for a felony, provide the defendant with 

a Prohibited Persons Relinquishment Form. (§ 29810, 

subd. (a)(2).) The form requires the defendant to declare any 

firearms in his possession and their location “to enable a designee 

or law enforcement officials to locate the firearms.” (§ 29810, 

subd. (b)(3).) Prior to final disposition or sentencing, the court 

must make findings as to whether the court received the 

 

3 Respondent argues we should dismiss the appeal or 

transfer it to the superior court appellate division because the 

imposition of the $100 fine was analogous to an independent 

infraction case. (See § 1466.) Leaving aside the issue of 

efficiency, we cannot view the fine in this manner given that the 

prosecutor never charged an infraction and no trial was held on 

such a charge. Rather, these unusual proceedings involve the 

imposition of a fine in conjunction with the sentencing on 

Villatoro’s felony plea; no separate charges were filed and the 

infraction proceedings were part and parcel with the felony plea 

and sentence. We conclude jurisdiction properly rests in this 

court, as part of an appeal from a felony conviction. (People v. 

Rivera (2015) 233 Cal.App.4th 1085, 1095–1096.) 
5

completed form. (§ 29810, subd. (c)(3).) “Failure by a defendant 

to timely file the complete Prohibited Persons Relinquishment 

Form with the assigned probation officer shall constitute an 

infraction punishable by a fine not exceeding one hundred dollars 

($100).” (§ 29810, subd. (c)(5).)

Villatoro cites to People v. Municipal Court for Ventura 

Judicial District (Pelligrino) (1972) 27 Cal.App.3d 193 for the 

principle that a criminal complaint filed without the district 

attorney’s authorization is a nullity. (Id. at p. 204.) The 

Pelligrino court observed that “all criminal proceedings must be

brought in the name of the People of the State of California” 

citing to article six, section 20 of the California Constitution. (Id.

at p. 201.) “Due process of law requires that criminal 

prosecutions be instituted through the regular processes of law. 

These regular processes include the requirement that the 

institution of any criminal proceeding be authorized and 

approved by the district attorney.” (Id. at p. 206.)

Here, the trial court essentially charged defendant with an 

infraction, conducted a trial, found him guilty, and imposed the 

$100 fine on him for violating section 29810—all in the presence 

of the district attorney. Yet, the district attorney did not charge 

or approve the charging of an infraction. The People’s position 

that the district attorney may “implicitly concur” to a trial court’s 

“initiation of infraction proceedings under section 29810” by 

simply not voicing opposition is not supported by any authority. 

Certainly the district attorney had the opportunity to file the 

infraction. Even if it could be said that the prosecutor impliedly 

concurred with court’s initiation of infraction proceedings, 

nothing in the Attorney General’s appellate briefs suggests that 
6

the court has the power to initiate proceedings at all, with or 

without the concurrence of the prosecutor, express or implied.

We also note that the defendant has a right to be present 

when a fine is imposed upon him. In a criminal case, the trial 

court’s oral pronouncement of sentence constitutes the judgment. 

(People v. Mesa (1975) 14 Cal.3d 466, 471.) The judgment must 

be imposed in the presence of the accused. (People v. Zackery 

(2007) 147 Cal.App.4th 380, 386–387 (Zackery).) Because fines 

are punishment, a “judgment includes a fine.” (People v. Hong

(1998) 64 Cal.App.4th 1071, 1080.) Therefore, a fine may only be 

imposed in the presence of the accused. (Zackery, at pp. 386–

389.) Here, the court imposed the fine at a “nonappearance” 

hearing at which Villatoro was not present.

Although we reverse the order imposing the fine, we 

recognize the practical dilemma that trial courts and district 

attorneys may face in order to secure defendants’ compliance 

with a law founded on strong public policy. However, frustration 

is not a substitute for authority. If prosecuting an infraction is 

too onerous a requirement for district attorneys seeking 

compliance with section 29810, one remedy would be to seek 

legislative change. In the present case, Villatoro was placed on 

probation. We express no opinion whether completing the 

Prohibited Persons Relinquishment Form could be included as a 

term of probation. We hold only that the court may not initiate 

infraction proceedings on its own.

/ / /

/ / /
7

DISPOSITION

The January 30, 2019 order imposing a $100 fine is 

reversed. The judgment is otherwise affirmed.

RUBIN, P. J.

WE CONCUR:

MOOR, J.

KIM, J.