Filed 1/23/23 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH ANTHONY LOPEZ,

Defendant and Appellant.

F084085

(Super. Ct. No. VCF399477)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Brett R. 

Alldredge, Judge.

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. 

Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Franson, J. and DeSantos, J.
2.

Defendant Joseph Anthony Lopez pled no contest to a felony and 

two misdemeanor charges. The resulting sentence included certain monetary obligations 

totaling $3,904. On appeal, defendant contends the trial court erred by failing to recite 

the individual fines, fees, and assessments and their statutory bases at the sentencing 

hearing. Defendant further argues the abstract of judgment must specify the same. We 

direct the clerk of the trial court to prepare an amended abstract of judgment that reflects

the amount of each fine, fee, and penalty assessment imposed and its statutory basis. In 

all other respects, we affirm the judgment.

PROCEDURAL BACKGROUND1

On June 24, 2020, the Tulare County District Attorney filed a complaint charging 

defendant with evading an officer (Veh. Code, § 2800.2, subd. (a); count 1), resisting a 

peace officer (Pen. Code, § 148, subd. (a)(1); count 2),2 and driving with a suspended 

license (Veh. Code, § 14601.1, subd. (a); count 3). It was further alleged defendant had 

suffered one prior strike conviction within the meaning of the “Three Strikes” law 

(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), served four prior prison terms (§ 667.5, 

subd. (b)), and committed count 1 while on state prison parole following imprisonment 

for committing a serious or violent felony (§ 3000).

On October 20, 2021, defendant pled no contest to the charges and admitted the 

special allegations.

On March 16, 2022, the trial court sentenced defendant in count 1 to 16 months in 

prison, doubled to 32 months pursuant to section 1170.12, subdivision (c)(1). Defense 

counsel and the trial court noted that the prison priors had been stricken. Defendant was 

ordered to pay a $600 restitution fine (§ 1202.4, subd. (b)), a $600 revocation restitution 

1 The underlying facts are not relevant to the issue on appeal and are therefore 

omitted.

2 All further statutory references are to the Penal Code unless otherwise stated.
3.

fine (§ 1202.45) that was stayed pending successful completion of parole, and an 

aggregate amount of $3,904. The $3,904 total included various fines, fees, and penalty 

assessments, which were detailed in the probation report.

On March 18, 2022, defendant filed a notice of appeal.

DISCUSSION

Defendant challenges the adequacy of the trial court’s oral pronouncement of the 

$3,904 aggregate fee it imposed, as well as how said fee is listed in the abstract of 

judgment.

Additional Background

At the sentencing hearing, the court stated as follows: 

“[THE COURT:] Pursuant to Vehicle Code [s]ection 2800.2, based 

on [defendant’s] ability to pay, he is subject to pay aggregate fines, fees, 

and assessments of $3,904.

“[Defense counsel], do you waive an oral recitation and allocation of 

that amount set forth in [p]aragraph 8 [of the probation report] on the 

record?

“[DEFENSE COUNSEL]: Yes, Your Honor.”

Further, the abstract of judgment stated, “Defendant [is] ordered to pay an amount 

of $3,904. Refer to the [p]robation [r]eport on [p]age 8, [s]ection 8, for the [b]reakdown 

of this sum amount.”

Paragraph 8 of the probation report provided as follows: “The defendant be 

ordered to pay the amount of ... $3,904[.] $1,000 of this amount to be considered a fine 

pursuant to [s]ection 2800.2 of the Vehicle Code, $1,000 of this amount to be considered 

a State Penalty Assessment pursuant to [s]ection 1464[, subdivision] (a) ..., $500 of this 

amount to be considered a Criminal Justice Facilities Construction Fund Penalty 

Assessment pursuant to [s]ection 76000 of the Government Code[,] $200 of this amount 

to be considered a Maddy Emergency Medical Services Fund Penalty Assessment 

pursuant to section [s]ection 76000.5 of the Government Code, $500 of this amount to be 
4.

considered a State Court Construction Penalty Assessment pursuant to [s]ection 70372 of 

the Government Code, $200 of this amount to be considered a Criminal Fine Surcharge 

pursuant to [s]ection 1465.7 ..., $100 of this amount to be considered a DNA 

Identification Fund Penalty Assessment pursuant to [s]ection 76104.6 of the Government 

Code, $400 of this amount to be considered a DNA Additional Penalty Assessment 

pursuant to [s]ection 76104.7 of the Government Code, $4.00 of this amount to be 

considered an Emergency Medical Air Transportation and Children’s Coverage Fund 

pursuant to section 76000.10 of the Government Code ....”

Legal Principles

“[P]enalty assessments must be (1) specified in the court’s oral pronouncement of 

judgment, and (2) specifically listed in the abstract of judgment.” (People v. Hamed 

(2013) 221 Cal.App.4th 928, 937, citing People v. High (2004) 119 Cal.App.4th 1192, 

1200–1201.) More recent cases provide that both the “amount and statutory basis for 

each fine, fee, and penalty assessment” must be specified. (People v. Hartley (2016) 248 

Cal.App.4th 620, 637 (Hartley); accord, People v. Fromuth (2016) 2 Cal.App.5th 91, 114 

[“Trial courts are required to ‘specify[] the statutory bases of all fees, fines, and penalties’ 

imposed on a defendant.”].)

There are “several ways for a trial court to perform this duty. ‘A trial court could 

recite the amount and statutory basis for any base fine and the amounts and statutory 

bases for any penalty assessments on the record .... [Citation.] Or, in cases where the 

amounts and statutory bases for the penalty assessments have been set forth in a 

probation report ... the court could state the amount and statutory basis for the base fine 

and make a shorthand reference in its oral pronouncement to “penalty assessments as set 

forth in the” probation report ... as authorized in [People v. Sharret (2011) 191 

Cal.App.4th 859] and [People v. Voit (2011) 200 Cal.App.4th 1353].’ ” (Hartley, supra, 

248 Cal.App.4th at pp. 636–637.)
5.

“[F]ailure to specify the amount and statutory basis for each fine, fee, and penalty 

assessment is a ‘legal error[] at sentencing’ that can be reviewed on appeal ‘ “regardless 

of whether an objection or argument was raised ....” ’ ” (Hartley, supra, 248 

Cal.App.4th at p. 637.) Such a legal error cannot be waived. (People v. Smith (2001) 24 

Cal.4th 849, 852 [“obvious legal errors at sentencing that are correctable without 

referring to factual findings or remanding for further findings are not waivable”].)

Analysis

In the present case, in imposing the $3,904 aggregate fee, the court specifically 

referred to paragraph 8 of the probation report, which provided an itemized breakdown of 

each fine, fee, and penalty assessment and their statutory bases included in the total 

amount. Therefore, no error occurred in the court’s oral pronouncement of defendant’s 

fines, fees, and penalty assessments.

The abstract of judgment, on the other hand, failed to itemize each fine, fee, and 

penalty assessment included in the aggregate fee, or identify their statutory bases. 

(People v. Hamed, supra, 221 Cal.App.4th at p. 937 [“all fines and fees must be set forth 

in the abstract of judgment” along with their statutory bases].) “If the abstract does not 

specify the amount of each fine, the Department of Corrections cannot fulfill its statutory 

duty to collect and forward deductions from prisoner wages to the appropriate agency.” 

(People v. High, supra, 119 Cal.App.4th at p. 1200.) “Since we may correct the error on 

appeal, there is no need to remand this matter to the sentencing court to orally pronounce 

the correct judgment.” (Hamed, at p. 940.) Instead, we will direct the trial court clerk to 

prepare an amended abstract of judgment to reflect the amount of each fine, fee, and 

penalty assessment included in the $3,904 total and identify its statutory basis as reflected 

in paragraph 8 of the probation report.

DISPOSITION

The clerk of the trial court is directed to prepare an amended abstract of judgment 

to reflect the amount of each fine, fee, and penalty assessment included in the 
6.

$3,904 total and identify its statutory basis as reflected in paragraph 8 of the probation 

report, and to forward a copy to the appropriate entities. As so modified, the judgment is 

affirmed.