P. v. >Bryan>





















Filed 1/10/13 P.
v. Bryan CA3











NOT TO BE PUBLISHED



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(San Joaquin)

----






>

THE PEOPLE, Plaintiff and Respondent, v. FRYDA BRYAN, Defendant and Appellant.	C067092 (Super. Ct. No. SF109307B)
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DALE TROUT, Defendant and Appellant.	C067748 (Super. Ct. No. SF109307A)

Defendants
Fryda Bryan and Michael Dale Trout were convicted of various offenses arising
from the operation of a meth lab. On
appeal, they both challenge the denial of their href="http://www.fearnotlaw.com/">motions to suppress evidence recovered
from the house where the lab was located, as well as challenging various
aspects of the fines, fees, and penalties imposed on them. Trout also contends the trial court erred in
failing to instruct the jury sua sponte on the lesser included offense of
attempted manufacture of methamphetamine and in failing to stay his punishment
for possession of methamphetamine pursuant to Penal Code section 654.

We
find no merit in defendants’ challenges to the search of the house where the
meth lab was located and no merit in Trout’s claim of instructional error. We agree, however, that Trout’s sentence for
possessing methamphetamine should have been stayed pursuant to Penal Code
section 654, and we also conclude that both cases must be remanded for proper
calculation and documentation of all fines, fees, and assessments imposed. Accordingly, we will affirm the convictions,
but modify Trout’s judgment to stay his sentence for href="http://www.mcmillanlaw.com/">possessing methamphetamine and remand
both cases for further proceedings on the fines, fees, and penalties.

FACTUAL AND PROCEDURAL BACKGROUND

In
August 2008, Stockton police searched a residence on Sunnyside Avenue for a suspected meth lab pursuant to a search warrant. Bryan and Trout were both present when the police arrived to search the
house; the house was rented to Bryan. Inside and outside the
house, the police found numerous items associated with the manufacture of
methamphetamine, including empty boxes of allergy medication containing
pseudoephedrine or ephedrine, lye drain opener, and hydrogen peroxide. They also found methamphetamine and a
shotgun. Both defendants had the smell
of methamphetamine manufacturing on them.


Bryan and Trout
were each charged with manufacturing methamphetamine, href="http://www.sandiegohealthdirectory.com/">possession of ephedrine or
pseudoephedrine with the intent to manufacture methamphetamine, possession
of hydriodic acid with the intent to manufacture methamphetamine, and
possession of methamphetamine, along with various enhancements. Trout was also charged with being a felon in
possession of a firearm.

Before
trial, both defendants challenged the search
warrant and moved to suppress the evidence from the house. The trial court (Judge Bernard Garber)
quashed the warrant on the ground the underlying affidavit was insufficient to
establish probable cause for the search of the house on Sunnyside. The People then sought to justify the search
as a warrantless probation search.
Officer Steven Cole of the Stockton Police Department testified that
prior to the search, he had determined that Trout was on searchable probation;
he had determined that the PG&E bill on the Sunnyside house was in Trout’s
name; he had seen Trout working on the security camera above the front door;
and he had seen a motorcycle that was registered to Trout in front of the house
numerous days in a row at different hours of the day and night. There was also evidence that when he was in
jail, Trout told his mother, “[I]t’s my house.
I give you permission to go there.”

The
trial court determined the search was a valid probation search of Trout’s
residence. Bryan’s attorney
then argued that the police failed to “give knock notice” before conducting the
search. The court concluded there was
“substantial compliance with knock notice” and denied the motions to
suppress.

The
jury found both defendants guilty of all charges against them with the
exception of the felon in possession charge against Trout, on which the jury
deadlocked. (That charge was eventually
dismissed.) The trial court (Judge
William Murray) imposed a six-year prison term on Bryan but suspended
execution of the sentence and placed her on probation. The court imposed a 19-year prison term on
Trout, based in part on enhancements for three prior drug convictions and a
prior strike conviction for assault on a peace officer.

DISCUSSION

I

>Denial Of The Motions To
Suppress

A

>Knock-And-Announce

Trout
contends the trial court erred in finding that the officers who conducted the
search substantially complied with the knock-and-announce requirement. He further contends that because of the
knock-and-announce violation, the search violated his Fourth Amendment rights,
and the evidence resulting from the search should have been suppressed. We conclude that even if there were a
knock-and-announce violation here (a point we do not decide), suppression of
evidence pursuant to the exclusionary rule was not available to Trout as a
remedy for that violation.

In
Hudson v. Michigan (2006) 547 U.S. 586
[165 L.Ed.2d 56], the United States Supreme Court confronted the question of
“whether the exclusionary rule is appropriate for violation of the
knock-and-announce requirement.” (>Id. at p. 590 [165 L.Ed.2d at pp. 63-64].) A majority of the court concluded that “the
social costs of applying the exclusionary rule to knock-and-announce violations
are considerable; the incentive to such violations is minimal to begin with,
and the extant deterrences against them are substantial--incomparably greater
than the factors deterring warrantless entries when Mapp [v. Ohio (1961) 367
U.S. 643 [6 L.Ed.2d 1081]] was decided.
Resort to the massive remedy of suppressing evidence of guilt is
unjustified.”href="#_ftn1"
name="_ftnref1" title="">[1] (Hudson, at p. 599 [165 L.Ed.2d at p. 69].)

Inexcusably,
Trout does not mention Hudson in his opening brief. In his
reply brief, Trout argues that Hudson does not “necessarily provide the ‘bright-line rule’ that [the
People] argue[] it does.” He points to a
decision by a Missouri appellate court -- State v.
Gibbs (2007) 224 S.W.3d 126 -- for the proposition that “suppression of
evidence is still required where there is a violation of knock-notice
requirements involving [a warrantless probation search].” But Gibbs
does not stand for that proposition.
In Gibbs, the defendant sought
to suppress evidence the police obtained after making a warrantless and
nonconsensual entry into a motel room to make a felony arrest. (Id. at
pp. 130-135.) The appellate court
decided that, notwithstanding Hudson, suppression of the evidence was still required by >Payton v. >New York (1979) 445 U.S. 573 [63 L.Ed.2d 639] in that circumstance because there was
insufficient evidence of any exigent circumstances necessary to justify a “no
knock” entry. (Gibbs, at pp. 134-135.)

We
have no quarrel with the decision in Gibbs,
because a warrantless search following a “no knock” entry to make a felony
arrest that was not justified by exigent circumstances is readily
distinguishable from a search pursuant to a lawful warrant following a failure
to knock and announce, which is what was at issue in >Hudson. (See Hudson v. Michigan, supra,
547 U.S. at p. 604 [165 L.Ed.2d at p. 72], conc. opn. of Kennedy, J.) It is true that here, the search was not made
pursuant to a valid warrant; it was, however, a valid probation search. Moreover, as the appellate court explained in
In re Frank S. (2006) 142 Cal.App.4th
145, a case involving a parole search, the “contention that >Hudson applies only where the police
have a search warrant is not persuasive.”
(Frank S, at p. 152.) This is so because the rule in >Hudson> “turns on the nature of the constitutional violation at issue, not
the nature of the police’s authority for entering the home. The interest asserted by defendant is that
protected by the prohibition on warrantless home searches and arrests, namely,
the right to shield one’s person and property from the government’s
scrutiny. [Citation.] But violation of the knock-and-announce rule
did not implicate that interest. As in >Hudson, because ‘the interests that were violated in this case have
nothing to do with the seizure of the evidence, the exclusionary rule is
inapplicable.’ ” (Frank S., at p. 152.)

Noting
the decision in Frank S., Trout
contends “current California law has not extended [>Hudson’s] holding beyond cases involving parolees” and “>Hudson should not be extended to cases [like this one] involving
probationers.” He offers no valid
reasoning for making such a distinction, however, and we cannot imagine one. >Hudson stands for the proposition that evidence obtained in an otherwise
valid search cannot be suppressed just because the police failed to comply with
the knock-and-announce requirement before engaging in that search. As we see it, it does not matter whether the
search at issue was pursuant to a valid search warrant or was justifiable as a
parole search or a probation search; the rationale of >Hudson applies equally to any of those situations. Because suppression of evidence pursuant to
the exclusionary rule was not available as a remedy to Trout even if the police
violated the knock-and-announce requirement, Trout’s challenge to the denial of
his suppression motion is without merit.

B

>Investigation Of Residency

Citing
People v. Tidalgo (1981) 123 Cal.App.3d
301, Bryan argues that “[w]here police do not know who owns or possesses a
residence, and such information can be easily obtained, it is incumbent upon
them to attempt to ascertain such information.”
To the extent Bryan is contending that under Tidalgo a motion to suppress evidence obtained in a probation
search of a residence must be granted if it is determined that the police did
not adequately investigate whether the residence was that of the defendant,
Bryan is mistaken.

The
issue in Tidalgo was “the correctness
of the lower court’s dismissal of the proceeding on the basis that a search
exceeded the terms of the search condition contained in [the defendant]’s terms
of probation.” (People v. Tidalgo, supra,
123 Cal.App.3d at p. 303.) The terms of
the defendant’s probation allowed law enforcement officers to search his
residence. (Id. at pp. 303-304.) The
trial court determined that the house where the search occurred was not the
defendant’s residence and it was unreasonable for the officers who conducted
the search to believe otherwise, and the appellate court upheld those
determinations as based on substantial evidence. (Id.
at pp. 307-308.)

At
best, Tidalgo stands for the
proposition that where the terms of a defendant’s probation authorize a
warrantless search of his residence, the fruits of a probation search of a
particular residence should be suppressed where the officers conducting the
search had no reasonable basis for believing that residence was the defendant’s
residence, and the residence was not in fact the defendant’s residence. The adequacy of any investigation conducted
by the searching officers prior to conducting the search is relevant only to
the extent that the investigation fails to provide the officers with sufficient
information to support a reasonable belief that the defendant is residing at
the location to be searched.

Here,
Bryan contends (without citation to the record on appeal) that “the only
information officers had [before conducting the search] was . . . that [Trout]
visited the site, and that a utility bill was in his name.” Even a brief glance at the record, however,
reveals that Bryan’s assertion is untrue.
In upholding the validity of the search as a probation search, the trial
court expressly found that it was appropriate for officers to search the house
on Sunnyside Avenue because “they had done surveillance. They had seen him there on many
occasion[s]. His motorcycle was there. And the officer said his name was on
PG&E. [¶] And then also on that transcript, People’s
Number 1, he’s talking to his mother at the jail afterwards and said to her
it’s his house and he gave permission to her to go in there.”

To
the extent Bryan’s argument based on Tidalgo
can be understood as a challenge to the sufficiency of the evidence to support
the trial court’s determination that Trout resided at the house on Sunnyside
Avenue, her argument is without merit because she has failed to present us with
all the relevant evidence in the light most favorable to the People and thus
has failed to carry her burden of showing the evidence was insufficient to
support the trial court’s decision. (See
People v. Sanghera (2006) 139
Cal.App.4th 1567, 1574.)

C

>Probable Cause

Citing
a Ninth Circuit case (U.S. v. Howard
(9th Cir. 2006) 447 F.3d 1257), Bryan contends “law enforcement must have
probable cause to believe that a parolee [i]s a resident of a house to be
searched pursuant to a parole condition.”
Bryan further contends that “[o]fficers in [this] case had only a
fraction of the information deemed insufficient in Howard, and made no efforts to investigate the information they
had. Therefore, they can not [>sic] possibly have had probable cause to
believe that Mr. Trout lived at the residence they searched.” Just as with her argument based on >Tidalgo, however, in making this
argument Bryan fails to present us with all the relevant evidence in the light
most favorable to the People regarding what the officers knew and what they did
prior to searching the house on Sunnyside Avenue. Accordingly,
her argument is without merit.

D

>Good Faith

Bryan
contends the good faith exception to the exclusionary rule does not apply here
because the officers did not act in objective good faith. According to Bryan, “the officers had
conflicting information, therefore they knew that one of the two sources of
information was in error. . . . The
officers chose to rely upon the information that suited their purpose.”

Frankly,
this argument is incomprehensible. It is
true that the residence address Trout had registered with the probation
department was an apartment on Olivera Road, while the utilities on the
Sunnyside Avenue house were registered in his name. These appear to be the “two sources of
information” to which Bryan refers in her argument. But the good faith exception to the
exclusionary rule has nothing to do with this case. The pertinent question is whether there was
sufficient evidence to support the trial court’s determination that Trout
resided on Sunnyside Avenue, notwithstanding that he had told the probation
department sometime in the past that he lived on Olivera Road. As we have noted already, Bryan has failed to
present a proper argument challenging the sufficiency of the evidence to support
the trial court’s determination of Trout’s residency. Accordingly, we are bound by the court’s
finding that Trout resided on Sunnyside Avenue, and in light of that fact, the
good faith exception to the exclusionary rule simply has nothing to do with this
case.

E

>Use Of Evidence

Bryan
contends that “[t]he fruits of the search were unjustifiably used against her,
since [she] did not consent to the search, did not consent to a probation
search against Mr. Trout, and had no reason to have any other than an
expectation of privacy in her home.” The
authorities Bryan cites, however, do not support her argument. The part of People v. Haskett (1982) 30 Cal.3d 841, 857 Bryan cites had to do
with the adequacy of a co-occupant’s consent to search; no probation search was
involved there at all. And >People v. Robles (2000) 23 Cal.4th 789,
797, 800 provides only that the police must know of the defendant’s probation
status beforehand for a warrantless search to be justified as a probation
search. Here, Bryan herself admits that
“[l]aw enforcement went to Mr. Trout’s probation officer . . . before
searching, and confirmed that Mr. Trout was on searchable probation.”

Beyond
Haskett and Robles, Bryan provides no other authority for the proposition that
the fruits of a valid probation search cannot be used against a co-occupant if
the co-occupant did not consent to the search.
In the absence of any such authority, we reject Bryan’s argument that
the evidence was unjustifiably used against her.

II

>Instruction On Attempted
Manufacture Of Methamphetamine

Trout
contends the trial court erred in failing to instruct the jury sua sponte on
attempted manufacture of methamphetamine as a lesser included offense of
manufacture of methamphetamine. We
disagree.

“The
trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant
makes a formal request.
[Citations.] ‘That obligation
encompasses instructions on lesser included offenses if there is evidence that,
if accepted by the trier of fact, would absolve the defendant of guilt of the
greater offense but not of the lesser.’
[Citations.] ‘To justify a lesser
included offense instruction, the evidence supporting the instruction must be
substantial--that is, it must be evidence from which a jury composed of
reasonable persons could conclude that the facts underlying the particular
instruction exist.’ ” (>People v. Burney (2009) 47 Cal.4th 203,
250.)

“[A]ttempt
is a lesser included offense of any completed crime.” (In re
Sylvester C. (2006) 137 Cal.App.4th
601, 609.) “An attempt to commit a crime
consists of two elements: a specific
intent to commit the crime, and a direct but ineffectual act done toward its
commission.” (Pen. Code, § 21a.)

Here,
Trout was convicted of violating Health and Safety Code section 11379.6,
subdivision (a). “[T]he conduct
proscribed by section 11379.6 encompasses the initial and intermediate steps
carried out to manufacture, produce or process” a controlled substance. (People
v. Jackson (1990) 218 Cal.App.3d 1493, 1504.) Thus, for Trout to prevail on his claim of
instructional error, we must be able to conclude that on the evidence
presented, there was substantial evidence for a reasonable jury to conclude
that Trout intended to manufacture methamphetamine and that he engaged in a
direct act toward the manufacture of methamphetamine, but the act in which he
engaged did not qualify as an initial step carried out to manufacture, produce,
or process methamphetamine. And because
Trout bears the burden of affirmatively demonstrating error, it falls to him to
affirmatively demonstrate to us the existence of the substantial evidence
necessary to justify the conclusion that the trial court should have instructed
on attempt. (Cf. People v. Sanghera, supra,
139 Cal.App.4th at p. 1573.)

Trout
has not met his burden. In arguing
“there was substantial evidence to support the giving of an instruction on
attempt,” Trout does not set forth all of
the material evidence bearing on whether the jury could have reasonably found
that he engaged in a direct act toward the manufacture of methamphetamine that
did not qualify as an initial step carried out to manufacture, produce, or
process methamphetamine. (See >People v. Sanghera, supra, 139 Cal.App.4th at p. 1572 [sufficiency of the evidence
determined based on review of the “whole record”].) Instead, he points to only two isolated bits
of testimony by the prosecution expert.
First, he notes that “[w]hile the prosecution expert testified that in
his opinion, the lab was ‘active,’ he also admitted that he could not be
certain that the drugs he found came from the lab that they were
investigating.” Second, he noted that
the expert “also testified that he could not tell within a reasonable
scientific certainty that the tubing he analyzed was used in any
manufacturing.”

Taking
the first point first, the testimony to which Trout refers was the expert’s
testimony that he could not say within a reasonable scientific certainty
whether some methamphetamine found in the house on Sunnyside Avenue was
manufactured in the lab found at the house.
This testimony obviously did not constitute substantial evidence
supporting an instruction on attempt.
The fact that it could not be determined whether certain methamphetamine
was manufactured in the lab on Sunnyside Avenue would not have supported a jury
verdict that no initial step was carried out to manufacture, produce, or
process methamphetamine in that lab. In
fact, in giving the testimony on which Trout relies, the prosecution expert
explained that the finished methamphetamine in question “did not come from --
from the [drugs] that are in the process of being made because they’re in the
process of being made, and that’s finished.”
In this manner, the expert referred back to his earlier testimony that
“[m]ethamphetamine manufacturing was definitely taking place” at the
residence. Thus, the expert’s testimony
was that while methamphetamine was definitely being manufactured at the residence,
he could not determine whether the finished methamphetamine found at the house
had been manufactured at that lab.
Understood in this context, the expert’s testimony was plainly not
substantial evidence that only an attempt to manufacture occurred.

The
second bit of the expert’s testimony on which Trout relies results in the same
conclusion. In that testimony, the
expert identified certain black plastic tubing in a photograph taken at the
residence and testified that because he did not test that tubing, he could not
tell within a reasonable scientific certainty whether that tubing was used in
any manufacture of methamphetamine. More
completely, however, the expert explained that he did not test the tubing
because “[t]he tubing is only there for the vapors off the reaction,” and “I
have solutions that I believed to contain the actual solution -- actual mixture
itself.” When counsel asked, “So you
check the filter papers but not the tubing?” the expert responded, “That’s
correct.” In context, then, the expert’s
testimony was that he could not tell whether the tubing was used in the
manufacture of methamphetamine because he had other items that provided more
direct evidence that methamphetamine was being manufactured and he tested those
items instead. Understood in this
context, again the expert’s testimony was not substantial evidence that only an
attempt to manufacture occurred.

For
the foregoing reasons, we reject Trout’s claim of instructional error.

III

>Penal Code Section 654

Trout
was convicted of manufacturing methamphetamine (count 1) and possessing
methamphetamine (count 5). The court
sentenced him to the midterm of five years on the manufacturing count, doubled
to 10 years for a prior strike. The
court imposed a concurrent sentence of 32 months on the possession count,
noting that “[t]he possession of the methamphetamine in this case arguably
occurred on the same occasion and arose out of the same set of operative facts
and that [sic] it was possessed [at
the same] time and place as the manufacturing activity.”

On
appeal, Trout contends his sentence for possessing methamphetamine should have
been stayed pursuant to Penal Code section 654.
The People agree. We agree also. Given the trial court’s findings at
sentencing that the possession of methamphetamine occurred at the same time as
the manufacture of the methamphetamine, and given the absence of any evidence
that Trout entertained multiple criminal objectives in committing the two
crimes, the sentence for possession must be stayed. (See Neal
v. State of California (1960) 55 Cal.2d 11, 19.)

IV

>Fees And Fines

A

>Administrative Surcharge --
Trout

Trout’s
abstract of judgment shows a $760 administrative surcharge imposed in
connection with the $7,600 restitution fine, and the clerk’s minutes from his
sentencing hearing reflect this surcharge as well. On appeal, however, Trout complains that the
trial court did not impose the surcharge as part of the oral pronouncement of
judgment and therefore it must be stricken from the abstract. The People acknowledge that the court failed
to orally impose the surcharge on Trout, but they contend the surcharge was
mandatory and therefore the failure to impose it resulted in an unauthorized
sentence that can be corrected at any time.


In
support of their argument that the surcharge was mandatory, the People -- in a
footnote in their respondent’s brief -- ask us to take judicial notice of an
order by the San Joaquin County Board of Supervisors, which they purport to
quote in the text of their brief. In reply,
Trout points out that the People’s request for judicial notice does not comply
with rule 8.252 of the California Rules of Court, which requires “a separate
motion with a proposed order,” accompanied by a copy of the matter to be
judicially noticed if it is not contained in the record, unless providing a
copy is impracticable.

We
agree with Trout that the People have not properly requested judicial notice of
the alleged order by the San Joaquin County Board of Supervisors, and as a
result their argument that the administrative surcharge was mandatory is
unsupported by the record. Thus, the
People have failed to show that the actual judgment (i.e., the oral
pronouncement) was unlawful because the trial court failed to impose the
administrative surcharge. Rather than
remand for correction of the clerk’s minutes and abstract, however, because we
are remanding the issue of fines, fees, and penalties to the trial court anyway
for proper calculation and documentation (see below), we need not order any
other relief on this issue.

B

>Drug Lab Fee -- Trout

With
respect to Trout, the trial court imposed a drug lab fee of $190 on each count
of conviction, for a total of $760. The
court explained that the $190 on each count “includes the fine, as well as
penalty assessments.” The court did not
state the statutory basis for the drug lab fee or the penalty assessments. The $760 total appears on the abstract of
judgment only as “PAY $760.00 CRIM. LAB FEE.”


On
appeal, Trout contends the abstract must be corrected “to set forth how the
$760 was calculated and what the statutory basis is.” In support of this contention, he cites >People v. High (2004) 119 Cal.App.4th
1192. In High, this court held that while “a detailed recitation of all the
fees, fines and penalties on the record may be tedious, California law does not
authorize shortcuts. All fines and fees
must be set forth in the abstract of judgment.”
(Id. at p. 1200.) “If the abstract does not specify the amount
of each fine, the Department of Corrections
[and Rehabilitation] cannot fulfill its statutory duty to collect and forward
deductions from prisoner wages to the appropriate agency. [Citation.]
At a minimum, the inclusion of all fines and fees in the abstract may
assist state and local agencies in their collection efforts. [Citation.]
Thus, even where the Department of Corrections [and Rehabilitation] has
no statutory obligation to collect a particular fee, such as the laboratory fee
imposed under Health and Safety Code section 11372.5, the fee must be included
in the abstract of judgment.” (>High, at p. 1200.) We ordered the trial
court on remand to “separately list, with the statutory basis, all fines, fees
and penalties imposed on each count” and to “prepare an amended abstract
reflecting the modifications and corrections ordered by this court.” (High,
at p. 1201.)

Plainly
the trial court’s recitation of the “drug lab fee” here, which did not identify
the statutory basis for the fee and did not identify the amount of the fee
versus the associated “penalty assessments,” did not comply with our decision
in High. Accordingly, we will remand with directions
to the trial court to properly calculate and list all fines, fees, and
penalties as High requires.

C

>Drug Lab Fee -- Bryan

As
part of the order granting probation to Bryan, the trial court imposed “a $50
lab fee on each count, plus the penalty assessments.” The court further stated that “[t]he drug lab
fee has to be applied to each count, so the total aggregate is $655. That’s $163.75 times four.”

On
appeal, Bryan contends the $50 drug laboratory fee provided in subdivision (a)
of Health and Safety Code section 11372.5 applied to only two of her four
convictions and thus the total aggregate fee should be only half of what the
court ordered. Additionally, Bryan argues that “[t]he fees must be specified as
to statutory basis for each part of the total fees ordered under Health and
Safety Code section 11372.5.”

The
People appear to concede these errors, agreeing that “the issue of the Health and
Safety Code section 11372.5 criminal lab fee [should] be remanded back to the
trial court for proper calculation.”

Although
Bryan received probation and was not committed to the Department of Corrections
and Rehabilitation, we see no reason why the reasoning of this court in >High should not apply equally to fines,
fees, and penalties imposed as part of a probation order. Accordingly, we will remand with directions
to the trial court to properly calculate and separately list all fines, fees,
and penalties.

D

>Court Security Fee And
Criminal Conviction Fee -- Bryan

With
respect to Bryan, the trial court stated, “There’s a court security fee on each
count of $60 total, and a criminal conviction fee of 140 total.” On appeal, Bryan contends the criminal conviction
fee (Gov. Code, § 70373, subd. (a)(1)) should have been only $30 per count of
conviction, for a total of $120, and the court security fee (Pen. Code, §
1465.8) should have been $40 per count of conviction, for a total of $160. (She notes that the $160 figure is correctly
reflected in the clerk’s minutes.) The
People agree and request that “the matter of the fines, fees, and assessments
be remanded back to the trial court for proper calculation.” We shall do so.

DISPOSITION

Defendants’
convictions are affirmed, but the judgment against Trout is modified to stay
the sentence for possession of methamphetamine pursuant to Penal Code section
654. Both cases are remanded to the
trial court with directions to properly calculate and separately list, with
statutory basis, all fines, fees, and penalties imposed on each defendant. With respect to Trout, the trial court is
directed to prepare an amended abstract of judgment and to forward a copy to
the Department of Corrections and Rehabilitation.







ROBIE , J.







We
concur:







NICHOLSON , Acting P.
J.







BUTZ , J.