Filed 10/29/14 P. v. Rocco CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. FRANK ROCCO, Defendant and Appellant. H039859 (Santa Clara County Super. Ct. No. F1345244)

Defendant Frank Rocco appeals a judgme nt of conviction following his guilty plea
to elder abuse in violation of Penal Code section 368, subdivision (b)(1). 1 On appeal,
defendant asserts the trial court erred in imposing a $10,000 fine and a $31,000 penalty assessment, because the court lacked authority to impose such fine.
S TATEMENT OF THE C ASE 2
As a result of incidents of domestic vi olence perpetrated by defendant on his 86- year-old mother, defendant was charged with elder abuse in violation of section 368, subdivision (b)(1) in 2013. The complaint also cont ained an enhancement for great bodily injury upon an elde r in excess of 70 years. (§ 12022.7, subd. (c).)

1 All further statutory references are to the Penal Code.

2 The underlying facts of this case are om itted because they are not relevant to the issues on appeal.2 Defendant pleaded guilty to the charge, and admitted th e enhancement. The court sentenced defendant to seven years in prison , consisting of the m itigated term of two years for elder abuse, and five years for the enhancement. In addition to the prison term, the court also ordered defendant to pay a re stitution fine in the amount of $1,680, and what it termed a “general fund fine” of $10,0 00 plus a penalty asse ssment of $31,000.
D ISCUSSION Defendant asserts the $10,000 fine and a $31,000 penalty assessment are unauthorized in this case, and must be stricken. The court imposed the fine as follows: “Mr. Rocco, I am concerned—because of
the constellation of health issu es and inability to sustain em ployment, I’m concerned that you have been improperly relyin g on your mother’s assets for the last several years. I’m concerned that you might otherwise inherit fr om the decedent. I do not believe that I have the authority to affect probate or a ny inheritance that you might receive, but I do have one other tool: I impose a general fu nd fine of $10,000 plus $31,000 penalty assessment for a total of $41,000.” When imposing the fine in this case, the court did not sp ecify any statutory authority under which it was acting; it merely that it was imposing a “general fund fine.” Moreover, the court abstract in the record states: “Cnt 1 $10,000 + PA $31,000.” The
abstract does not state the statut ory basis for the fine imposed. Section 672 is the general catchall provisi on for the imposition of fines in criminal cases, providing the “[a]mount of fine when none it fixed.” (§ 672) The provision states: “Upon conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescrib ed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in the case of felonies, in addition to the imprisonment prescribed.” ( Ibid .)3 Here, defendant was convicted of physical elder abuse, which is a violation of section 368, subdivision (b)(1). Section 368, subdivision (b)(1) fi xes the maximum fine
for a violation of the section at $6,000. (§ 368, subd. (b)( 1)). Because the statute under which defendant was charged also states the fi xed fine for a violation, the provisions of section 672 do not apply, and se ction 672 cannot form a statut ory basis for the fine this case. Therefore, the court improperly or dered a fine in the amount of $10,000.
Because defendant was convicted of viola ting section 368, subdivision (b)(1), he was subject to a maximum fine in the amou nt of $6,000, and the court could have properly ordered a fine under this Penal Code section. Ho wever, the record reflects the court’s motivation for ordering the fine in th is case was to disgorge defendant of any inheritance he might receive from his mother’s estate. The court made no mention of ordering the fine for the criminal condu ct for which defendant was charged and
convicted. Defendant’s crime was physical elder a buse, not financial abuse or fraud. To order a fine specifically intended to pun ish defendant for rely ing on his mother’s financial support in the past, and to prevent defendant from inheriting from his mother’s estate was improper. The $10, 000 fine in this case serv ed to punish defendant for
conduct for which he was neith er charged, nor convicted. This was a violation of defendant’s constitutional rights. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 478- 483.)
D ISPOSITION The $10,000 fine an d $31,000 penalty assessment ar e stricken. As modified, the judgment is affirmed.4 __________ _______________ _____________ RUSHING, P.J.

WE CONCUR:

___________________ _________________ PREMO, J.

___________________ _________________ ELIA, J.