Filed 10/29/14 P. v. Rocco CA6 

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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 judgment 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. 

STATEMENT OF THE CASE2

 As a result of incidents of domestic violence 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 contained an enhancement for great 

bodily injury upon an elder 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 omitted because they are not relevant to the 

issues on appeal. 
2 

 Defendant pleaded guilty to the charge, and admitted the enhancement. The court 

sentenced defendant to seven years in prison, consisting of the mitigated 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 restitution fine in the amount of $1,680, and 

what it termed a “general fund fine” of $10,000 plus a penalty assessment of $31,000. 

DISCUSSION

 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 issues and inability to sustain employment, I’m concerned that 

you have been improperly relying on your mother’s assets for the last several years. I’m 

concerned that you might otherwise inherit from the decedent. I do not believe that I 

have the authority to affect probate or any inheritance that you might receive, but I do 

have one other tool: I impose a general fund 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 specify 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 statutory basis for the fine imposed. 

Section 672 is the general catchall provision 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 prescribed, 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) fixes 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 fixed fine for a violation, the provisions of 

section 672 do not apply, and section 672 cannot form a statutory basis for the fine this 

case. Therefore, the court improperly ordered a fine in the amount of $10,000. 

 Because defendant was convicted of violating section 368, subdivision (b)(1), he 

was subject to a maximum fine in the amount of $6,000, and the court could have 

properly ordered a fine under this Penal Code section. However, the record reflects the 

court’s motivation for ordering the fine in this 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 conduct for which defendant was charged and 

convicted. 

 Defendant’s crime was physical elder abuse, not financial abuse or fraud. To 

order a fine specifically intended to punish defendant for relying 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 served to punish defendant for 

conduct for which he was neither charged, nor convicted. This was a violation of 

defendant’s constitutional rights. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 478-

483.) 

DISPOSITION

 The $10,000 fine and $31,000 penalty assessment are stricken. As modified, the 

judgment is affirmed. 
4 

 ______________________________________ 

 RUSHING, P.J. 

WE CONCUR: 

 

____________________________________ 

PREMO, J. 

____________________________________ 

ELIA, J.