P. v. Evans
Filed 2/18/10 P. v. Evans CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MATIAS EVANS, Defendant and Appellant. | B217579 (Los Angeles County Super. Ct. No. BA343322) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Marcelita V. Haynes, Judge. Reversed in part and affirmed as modified.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith J. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Michael Matias Evans, appeals from his conviction after a jury trial for felony driving under the influence and with a .08 percent blood alcohol level and causing injury. (Veh. Code, 23153, subds. (a)-(b).) The jury further found as to each count defendants blood alcohol content was .20 percent and more, by weight (Veh. Code, 23578, 23538, subd. (b)(2)) and he personally inflicted great bodily injury. (Pen. Code, 12022.7, subd. (a).) Defendant was sentenced to 4 years, 4 months in state prison. The trial court ordered defendant to pay: a $390 fine (Veh. Code, 23554) plus penalty assessment; a $200 restitution fine (Pen. Code, 1202.4, subd. (b)); a $200 parole revocation restitution fine (Pen. Code, 1202.45); a $20 court security fee (Pen. Code, 1465.8); and a $50 lab fee. Defendant received credit for 2 days in presentence custody. We reverse in part, modify in part, and otherwise affirm the judgment.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. Appointed counsel has filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On December 2, 2009, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. No response has been received. We asked the parties to brief several issues, all of which are discussed below.
It was error to impose a $50 lab fee. Health and Safety Code section 11372.5, subdivision (a) provides, Every person who is convicted of a violation of [enumerated Health and Safety Code sections] or Section 4230 of the Business and Professions Code shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. Defendant was not convicted of any Health and Safety Code or Business and Professions Code section 4230 violation. The criminal laboratory analysis fee did not apply and must be reversed.
The Vehicle Code section 23554 fine was subject to the following penalties, assessments and surcharge: a $390 state penalty (Pen. Code, 1464, subd. (a)(1)); a $273 county penalty (Gov. Code, 76000, subd. (a)(1)); a $78 county penalty for purposes of supporting emergency medical services (Gov. Code, 76000.5, subd. (a)(1)); a $78 state surcharge (Pen. Code, 1465.7, subd. (a)); a $117 state court construction penalty (Gov. Code, 70372, subd. (a)(1)) (the amount payable in Los Angeles County); a $39 deoxyribonucleic acid penalty (Gov. Code, 76104.6, subd. (a)(1)); a $39 state-only deoxyribonucleic acid penalty (Gov. Code, 76104.7, subd. (a)); and a $30 court facilities assessment (Gov. Code, 70373). The total penalties, assessments and surcharge in addition to the $390 fine were $1,044.
The oral pronouncement of judgment, the clerks minutes and the abstract of judgment were all incorrect in part with respect the foregoing penalties, assessments and surcharge. Both the clerks minutes and the abstract of judgment refer to a state penalty fund assessment of $936. In addition, both reflect a $78 criminal fine surcharge (Pen. Code, 1465.7), which the trial court never orally imposed. The oral pronouncement of judgment controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) Moreover, as the Court of Appeal observed in People v. High (2004) 119 Cal.App.4th 1192, 1200: Although we recognize that 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. (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [laboratory fee]; People v. Hong (1998) 64 Cal.App.4th 1071, 1080 [restitution fine].) The abstract of judgment form used here, Judicial Council form CR-290 (rev.Jan.1, 2003) provides a number of lines for other financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. ([People v.] Hong, supra, 64 Cal.App.4th at pp. 1078-1079.) At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (Pen. Code, 1205, subd. (c).) Thus, even where the Department of Corrections 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. ([People v.] Sanchez, supra, 64 Cal.App.4th at p. 1332.) As the Sanchez court explained, Just as a [r]ose is a rose isa rose is a rose [ ] (Gertrude Stein, Sacred Emily (1913)[ ] (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 459 (conc. opn. of Eagleson, J.)), a fine is a fine is a fine is a fine and is part of the judgment which the abstract must digest or summarize. [Citations.] ([People v.] Sanchez, supra, 64 Cal.App.4th at p. 1332.)
As noted above, the trial court orally imposed one $20 court security fee (Pen. Code, 1465.8, subd. (a)(1).) The trial court should have imposed one $20 court security fee for each of defendants two convictions, for a total of $40, notwithstanding the Penal Code section 654, subdivision (a) stay as to count 1. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)
There were several errors in the preparation of the abstract of judgment. Upon remittitur issuance the trial court is to personally ensure the abstract of judgment is amended to properly reflect the modified judgment. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Mitchell, supra, 26 Cal.4th at p. 185; People v. High, supra, 119 Cal.App.4th at p.1200.)
III. DISPOSITION
The imposition of a Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee is reversed. The judgment is modified to impose the following additional penalties, assessments and surcharge in connection with the $390 Vehicle Code section 23554 fine: a $390 state penalty (Pen. Code, 1464, subd. (a)(1)); a $273 county penalty (Gov. Code, 76000, subd. (a)(1)); a $78 county additional penalty for purposes of supporting emergency medical services (Gov. Code, 76000.5, subd. (a)(1)); a $78 state surcharge (Pen. Code, 1465.7, subd. (a)); a $117 state court construction penalty (Gov. Code, 70372, subd. (a)(1)) (the amount payable in Los Angeles County); a $39 deoxyribonucleic acid penalty (Gov. Code, 76104.6, subd. (a)(1)); a $39 state-only deoxyribonucleic acid penalty (Gov. Code, 76104.7, subd. (a)); and a $30 court facilities assessment (Gov. Code, 70371). The judgment is further
modified to impose an additional $20 court security fee under Penal Code section 1465.8, subdivision (a)(1). The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
KRIEGLER, J.
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