P. v. Gadbury
Filed 11/18/08 P. v. Gadbury 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
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THE PEOPLE, Plaintiff and Respondent, v. HERB LEE GADBURY, Defendant and Appellant. | C058562 (Super. Ct. No. 07F4585) |
Defendant Herb Lee Gadbury pled guilty to seven counts of lewd acts on a child under the age of 14 and one count of lewd acts on a child age 14 or 15 when defendant is at least 10 years older than the child. The two victims were young female family members.
The trial court sentenced defendant to an aggregate prison term of 20 years 8 months and imposed various fines and fees.
At issue on appeal is the courts imposition of a criminal laboratory analysis fee in the amount of $50 plus penalty assessments (for a total of $162.50) pursuant to Health and Safety Code section 11372.5, subdivision (a). Defendant contends, and the People concede, that a criminal laboratory fee is not authorized because he was not convicted of a qualifying offense.
They are correct. Health and Safety Code section 11372.5, subdivision (a) states in pertinent part: Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, 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. . . .
Because defendant was not convicted of any of the enumerated statutory violations, the criminal laboratory analysis fee and its attendant penalty assessments are unauthorized and must be stricken.
DISPOSITION
The criminal laboratory analysis fee imposed pursuant to Health and Safety Code section 11372.5 shall be stricken. As modified, the judgment is affirmed. The court shall amend the abstract of judgment and send a copy of the amendment to the Department of Corrections and Rehabilitation.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
MORRISON , J.
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