Filed 3/30/16 P. v. Simard CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID SIMARD,

Defendant and Appellant. B259920

(Los Angeles County Super. Ct. No. BA395034)

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert

C. Vanderet, Judge . Affirmed.

Gideon Margolis, under appointment by the Co urt of Appeal, for Defendant and

Appellant

.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Alene

M. Games, Deputy Attorney s General, for Plaintif f and Respondent.2

Defendant and appellant David Simard (defendant) appeals from the judgment

entered after his conviction of conspiracy and grand theft, raising only a sentencing issue.

He contends that the trial court erroneously base d penalty assess ments and a surcharge

upon the restitution fines imposed pursuant to Penal Code sections 1202.4 and 1202.44. 1

Defendant’ s contention is without merit as the record demonstrates that the penalty

assessments and surcharge were not based upon the restitution fines, but properly based

upon a fine imposed pursuant to section 672. We thus affirm the judgment.

BACKGROUND 2

Defendant and a codefendant were charged with 12 felonies, as follows:

conspiracy to defraud another of property (count 1 ), in violation of s ection 182,

subdivision (a)(4) ; three counts of grand theft of personal property (counts 2, 3, and 4), in

violation of section 487, subdivision (a); one count of counterfeiting an official seal

(count 5 ), in violation of section 472 ; four counts of forgery ( counts 6, 7, 8, and 9 ), in

violation of section 470, subdivision (d ); two counts of preparing false documentary

evidence (counts 10 and 11 ), in violation of section 134 ; and one count of procuring and

offering a false or forged instrument (count 12 ), in violation of section 115, subdivision

(a)

. As to each count , the information alleged that the value of the property taken

exceeded $200,000 within the meaning of section 12022.6, subdivision (a)(2).

On motion of defendant pursuant section 1118.1 made a t t he close of the

prosecution case at trial , the trial court dismissed counts 3 through 12, leaving counts 1

and 2 for the jury’s determination. The jury found defendant guilty of both counts as
charged. As to count 2 , the jury found true the allegation th at the value of the property

exceeded $200,000.

On November 3, 2014, the trial court suspended i mposition of sentence

, and

placed defendant on formal probation for five years. As a term and condition of

1 All further statutory references are to the Penal Code, unless otherwise indica ted.

2 As defendant challenges only that part of hi s sentence which included a penalty

assessment and surcharge , it is unnecessary to summarize the trial evidence.3

probation t he court ordered defendant to pay victim restitution to be determined, plus the

following fines and fees : a restitution fine of $10,000; a probation r evocation fine of

$10,000 , payable in the event of revocation of probation ; a $30 criminal conviction fee ;

and a $40 court security fee

. D efendan t was also ordered to pay a “fine in the amount of

$10,000 plus penalty assessments which is the max fine allowed for this crime.” 3 The

penalty assessment was computed later to be $24,000 and the surcharge to be $2

, 000, and

both were included in the minut e order.

Defendant filed a timely notice of appeal from the judgment

.
DISCUSSION

D efendant contends that trial court was not authorized to impose penalty

assessment s or a surcharge upon the restitution fine s impose d pursuant to secti on s
1202.4, subdivisio n (b) , and 1202.44

. Respondent agrees that restitution fine s imposed

pursuant to those section s are not subject to penalty assessments and surcharges. (See

§ 1464, subd. (a)(3)(A); People v. McHenry (2000) 77 Cal.App.4th 730, 733

- 734.)

However, responde nt contends that the penalty assessments and surcharge were not

imp osed upon the restitution fines, but rather imposed pursuant to section 672. Although

neither the trial court nor the minutes name d section 672 as authority for the fines

, respondent argue s that the following statement referred to that section: “He’s to pay a

fine in the amount of $10,000 plus penalty assessments which is the max fine allowed for

this crime .”

Section 672 provides: “Upon a conviction for any crime punishable by

imprisonmen t in any jail or prison, in relation to which no fine is herein prescribed, the

3 Although the trial court suspended imposition of sentence , placed defendant on probation, and then recited the various fines and fees as con ditions of probation

, the court
indi cated that the terms and conditions applied to count 1 ; t hen the court corrected the order to clarify that “all the terms and conditions [originally ] read are on count 2, ” and that count 1 would be stayed pursuant to sec tion 654. W here imposition of sentence has been suspended , there is no sentence to be stayed, and s ection 654 is thus inapplicable

. ( People v. Wittig (1984) 158 Cal.App.3d 124, 137.) Thus, the fines, surcharges, and restitution were not imposed in relat ion to sentencing on a particular count

.4

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 cases of felonies, in addition

to the imprisonment prescribed.” “ Many criminal statutes provide for the imposition of a

base fine in addition to a jail or prison sentence. [Citation.] Where the criminal statute

does not prescribe the base fine, section 672 authorizes the trial court to impose a fine.

( People v. Uffelman (2015) 240 Cal.App.4th 195, 197.) Here, as n either section 487,

defining grand theft, nor section 489, setting the punishment for grand theft, prescribes a

fine for violating section 487

, 4 it was within the trial co urt’s discretion to impose a

$10,000 fine. A fine imposed pursuant to section 672 is subject to penalty assessments

and surcharges

. ( See People v. Allen (2001) 88 Cal.App.4th 986, 988 ; § § 1464 , 1465 .7 ;
Gov. Code, § 76000 .) The trial court was authorized to impose the maximum fine

allowed by law as a condition of probation. (§ 1203.1, subd. (a). )

We are thus persuaded by respondent ’s argument that the court properly exercised
its discretion to impose a $10,000 fine due to the violation of section 487 , p lus penalties

and surcharges based upon that fine

, and that the court did not impose penalties and

surcharges upon the restitution fine s

.
DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

________________________ ____, J.
CHAVEZ
We concur:

__________________________, P. J.
BOREN

__________________________, J.
ASHMANN

- GERST

4 Section 489 prescribes a fine only for a violation of section 487a.