P. v. Arnott
Filed 8/31/09 P. v. Arnott CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, Plaintiff and Respondent, v. GEORGE ARNOTT, Defendant and Appellant. | B205543 (Los Angeles County Super. Ct. No. KA078122) |
APPEAL from an order of the Superior Court of Los Angeles County. Jose A. Rodriguez, Judge. Affirmed in part; reversed in part; and remanded.
Julie S. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Arnott appeals from orders entered after judgment and after a probation revocation hearing, first because he contends that the trial court imposed parole and probation revocation fines in excess of those allowed by statute. Second, Arnott contends that the trial court erred in assessing a second restitution fine when it sentenced him for the probation violation. Similarly, Arnott asserts that the trial court had no authority to impose a laboratory analysis fee upon his probation violation in addition to the fee imposed at the sentencing on his conviction. Respondent agrees as to the restitution and parole and probation revocation fines, and does not dispute that the laboratory analysis fee cannot be imposed twice. We agree as well.
Third, Arnott contends that the amount of the laboratory analysis fee reflected in the courts oral pronouncement of sentence and in the abstract of judgment -- $135 -- was in excess of the statutorily authorized amount of $50. Respondent disagrees only to the extent that it believes that the record, in fact, reflects the proper amount. We find that Arnott is only technically correct because the $135 fee includes mandatory penalties attendant to the laboratory analysis fee; given that we reverse the duplicative assessment of the laboratory analysis fee, we also direct the trial court to correct the abstract of judgment to specify separately the laboratory analysis fee and penalties.
Finally, Arnott contends that the minutes of the probation revocation hearing and the abstract of judgment incorrectly state that he was sentenced to a three-year upper term, when in fact, he had been sentenced to the middle term of two years, plus a consecutive one-year enhancement. Here too respondent agrees, as did the superior court when it amended its minutes and abstract of judgment to reflect the proper sentence, thus rendering this issue moot.
BACKGROUND
We set forth only those facts germane to the limited issues presented by this appeal. On February 15, 2007, Arnott was charged by information with felony possession of methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). The information further alleged, pursuant to Penal Code section 667.5, subdivision (b), that Arnott committed the offense within five years of serving prison sentences for three prior felony convictions.[1] In addition, it was alleged that Arnott had been convicted of two prior felonies within the meaning of Penal Code section 1203, subdivision (e)(4). On February 23, 2007, Arnott pled guilty to the charge and admitted one of the prior convictions alleged pursuant to Penal Code section 667.5, subdivision (b).[2]
The trial court placed Arnott on probation under the authority of section 1210.1 (Proposition 36), which provides for probation conditioned upon the completion of an appropriate drug treatment program for persons convicted of a nonviolent drug possession offense. The court ordered Arnott to pay the following fees, penalties, and assessments:
1. A $200 restitution fine, pursuant to section 1202.4, subdivision (b);
2. $135, orally pronounced by the court as a lab analysis fee, which is also reflected on the subsequent abstract of judgment; the minute order of February 23, 2007, states that the court imposed a $50 laboratory analysis fee, pursuant to Health and Safety Code section 11372.5, subdivision (a), with a penalty of $50, pursuant to Penal Code section 1464, and a penalty of $35, pursuant to Government Code section 76000, subdivision (a);
3. A $200 placement and supervision fee, pursuant to section 1210.1, subdivision (a); and
4. A $20 court security fee, pursuant to section 1465.8, subdivision (a)(1).
The trial court revoked probation on August 3, 2007, after Arnott failed to report to his probation officer for supervision and testing or to complete the drug treatment program. Arnott agreed to be sentenced to a suspended term of three years in prison in exchange for reinstatement of probation and the drug treatment program. The trial court then sentenced him to the middle term of two years in prison, plus a consecutive one-year enhancement due to a prior conviction. The court stayed execution of the sentence, and ordered Arnott to report to the program immediately and return to court August 24, 2007, for a progress hearing.
When Arnott had failed to report to the treatment center, the court revoked his probation, and found Arnott to be in violation of the terms of his probation. The court sentenced Arnott to three years in prison, which the court described as the previously stayed sentence. The November 16, 2007 minute order and December 6, 2007 abstract of judgment state that the three years consisted solely of the upper term of three years. In addition, the court imposed the following fees, penalties, and assessments:
1. A $600 restitution fine, pursuant to section 1202.4, subdivision (b);
2. A $135 laboratory analysis fee, pursuant to Health and Safety Code section 11372.5, subdivision (a);
3. A $600 parole revocation fine, pursuant to section 1202.45;
4. A $600 probation revocation fine, pursuant to section 1202.44; and
5. A $20 court security fee, pursuant to section 1465.8, subdivision (a)(1).
Arnott filed a timely notice of appeal from the probation revocation order.
DISCUSSION
Arnott contends that the trial court erred in imposing the $600 restitution fine because the court had already imposed a $200 restitution fine when Arnott was first placed on probation. In addition, Arnott contends that because the parole revocation fine must be in the same amount as the restitution fine, the fine must be reduced to $200. In a supplemental opening brief, Arnott contends that the $600 imposed as a probation revocation fine must also be reduced to $200.
Respondent agrees that the trial court erred in imposing a second restitution fine and in imposing parole and probation revocation fines in excess of statutorily authorized amounts. So do we. (See People v. Chambers (1998) 65 Cal.App.4th 819, 821-823; People v. Arata (2004) 118 Cal.App.4th 195, 202.)
Respondent agrees that the minutes of the probation revocation hearing and the abstract of judgment incorrectly state that he was sentenced to a three-year upper term, when in fact, he had been sentenced to the middle term of two years, plus a consecutive one-year enhancement. After the briefs were filed in this appeal, the superior court amended its minutes and issued an abstract of judgment correcting the sentence nunc pro tunc to reflect the two-year middle term, plus a one-year enhancement pursuant to section 667.5, subdivision (b). The issue is thus moot.
Arnott contends that the trial court erred in imposing a second $135 laboratory analysis fee, and asks that we strike the second fee. We agree. Health and Safety Code section 11372.5, subdivision (a), authorizes only one fee per conviction of a qualifying offense; Arnott was convicted of a single count of violating Health and Safety Code section 11377, subdivision (a), which is a qualifying offense.
Arnott finally contends that the trial court erred in assessing a $135 laboratory analysis fee when it originally pronounced sentence because the maximum fee should have been $50. (Health & Saf. Code, 11372.5, subd. (a).) Arnott ignores the penalties that must be added whenever a laboratory fee is imposed. Thus, the sentencing court must add to the $50 laboratory analysis fee, pursuant to Health and Safety Code section 11372.5, a $50 penalty assessment pursuant to Penal Code section 1464, and $35 pursuant to Government Code section 76000, bringing the total to $135. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154 [holding that these penalties are mandatory and can be assessed for the first time even on appeal].)
We note that the courts oral pronouncement of sentence on February 23, 2007, and the December 6, 2007 abstract of judgment describe a lab analysis fee in the amount of $135, which technically is not correct because it does not state that the above $85 in penalties were added to the $50 laboratory analysis fee. That breakdown is properly reflected in the courts February 23, 2007 minute order. Because we must reverse the duplicative assessment of the laboratory analysis fee and attendant penalties, we also direct the court to amend the abstract of judgment to comport with the minute order.
DISPOSITION
The $600 restitution fine and the $135 laboratory analysis fee imposed on November 16, 2007, are stricken, and the trial court is ordered to issue an amended abstract of judgment showing the breakdown of the laboratory analysis fee and attendant penalties reflected in the courts February 23, 2007 minutes. The $600 parole revocation fine and $600 probation revocation fine imposed November 16, 2007, are reduced to $200 each, and the court is ordered to ensure that the amended abstract of judgment reflects the corrected amounts. In all other respects, the order revoking probation is affirmed.
BENDIX, J.*
We concur:
RUBIN, ACTING P.J.
FLIER, J.
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[1] All further statutory references are to the Penal Code, unless otherwise indicated.
[2] Section 667.5, subdivision (b), provides for an additional one-year prison term for each prior separate prison term served for any felony within five years of the commission of the present offense. Section 1203, subdivision (e)(4), prohibits the grant of probation to any person with two prior felony convictions.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
