P. v. Joseph
Filed 6/17/10 P. v. Joseph 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, Plaintiff and Respondent, v. LIONEL JOSEPH, Defendant and Appellant. | C063853 (Super. Ct. No. SF1133225A) |
In October 2009, a surveillance camera caught defendant Lionel Joseph in what appeared to be a drug sale. Defendant was then stopped by a police officer. The police officer searched defendant and found a baggie containing an off-white substance, a zippered pouch with two pieces of a rock-like substance wrapped in plastic, a razor blade, and $424.47. The substances were later found to contain cocaine base.
Defendant was charged with possession of cocaine base for sale and public intoxication. Two sentencing enhancements were alleged for prior convictions on drug-related offenses, and five more sentencing enhancements were alleged pursuant to Penal Code section 667.5.
Defendant pled no contest to the charge of possessing cocaine base for sale and admitted one prior conviction for the same offense. In exchange for defendants plea, the remaining charge and enhancements were dismissed. The trial court sentenced defendant to an aggregate term of six years in state prison comprised of the low term of three years for the drug conviction and an additional three years for the enhancement.
According to the reporters transcript, the court ordered defendant to pay a $220 restitution fine, $30 court security fee, a $30 administrative fee, $163.75 lab fee and a $491.25 program fee. The court also stated, Theres a second $200 restitution fine that will be stayed on the condition that you comply with the terms and conditions of your parole. The court noted that defendant was entitled to 15 days of custody credit and 6 days of conduct credit and also ordered defendant to register as a narcotics offender.
A computer-printed minute order from the sentencing hearing differs from the reporters transcript with regard to the fines and fees as follows: It shows that the first restitution fine the court imposed was $200, not $220; it shows the imposition of a $20 administrative surcharge for the restitution fine that does not appear in the reporters transcript; and it refers to a $30 conviction assessment (which presumably corresponds to the $30 administrative fee mentioned in the reporters transcript).
A STATE PRISON COMMITMENT form completed by hand also reflects a $200 restitution fine, rather than the $220 fine that appears in the reporters transcript. Like the computer-printed minute order, the state prison commitment form shows a $20 surcharge for the restitution fine. It also shows a $30 MICCF, which presumably corresponds to the $30 administrative fee mentioned in the reporters transcript and the $30 conviction assessment shown on the minute order.
Like the minute order and the state prison commitment form, the abstract of judgment reflects a restitution fine of $200, not $220. The abstract otherwise reflects (as shown in the reporters transcript) the $30 court security fee, the $30 criminal conviction assessment (i.e., administrative fee), the $491.25 drug program fee, the $200 restitution fine suspended unless parole is revoked. But the abstract of judgment also shows the $20 administrative surcharge for the restitution fine not mentioned in the reporters transcript, and it also shows a lab fee of only $50, rather than the $163.75 mentioned in the reporters transcript.
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asked us to review the record to determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have not received communication from defendant.
Counsel did send a letter to the trial court requesting that the court recalculate defendants custody credits pursuant to the recent amendments to Penal Code section 4019 and amend the abstract of judgment to reflect the break-down of the laboratory fee and the penalty assessments, as required by People v. High (2004) 119 Cal.App.4th 1192. The trial court issued a minute order denying the amendment of credit for time served. No mention was made of the breakdown of the fees and assessments.
Pursuant to this courts miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies to acts committed before its passage provided the judgment convicting the defendant of the act is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239 [applying Estrada to amendment involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, 4019, subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, 50.) Consequently, defendant having served 15 days of presentence custody, is entitled to 14 days of conduct credits, rather than the 6 days noted by the trial court.
Also, the court ordered defendant to pay $491.25 for the drug program fee and $163.75 for the lab fee but failed to break down the fees and their penalty assessments as required by law. (People v. High, supra,119 Cal.App.4th at p. 1200.) We will remand the matter so the trial court may correct this oversight. At the same time, the court can clarify the amount of the restitution fine it ordered, whether $200 or $220. Additionally, as we noted in High, there must be a detailed recitation of all the fees, fines and penalties on the record (ibid.) which did not occur here. Accordingly, we will remand the case for the court to make such a recitation. Once that is done, we presume there will be no further discrepancy between the oral pronouncement of the fees, fines, and penalties, the minutes of that pronouncement, and the abstract of judgment.
We do not find any other arguable error that would result in a disposition more favorable to the defendant.
DISPOSITION
The judgment is modified to reflect an award of 14 days of conduct credit for a total of 29 days of presentence credit. The cause is remanded with directions to the trial court to separately list, with the statutory basis, all fines, fees and penalties imposed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
ROBIE , J.
We concur:
SCOTLAND , P. J.
BUTZ , J.
Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line attorney.
