P. v.
Filed 8/16/12 P. v. Martinez CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESUS DAVID MARTINEZ,
Defendant and
Appellant.
H037011
(Monterey
County
Super. Ct. No. SS100471)
In a negotiated disposition following the denial of his
suppression motion, defendant Jesus David Martinez pleaded
guilty to possession of methamphetamine
for sale (Health & Saf. Code, § 11378) and admitted a
§ 186.22, subd. (b)(1)).
name="_ftnref1" title="">[1] He was sentenced to 40 months in prison.
On appeal, defendant contends that (1) the trial court
prejudicially erred in denying his suppression motion (§ 1538.5); (2) to
the extent that motion was inadequate, his trial counsel was prejudicially
deficient in failing to move to suppress “a cell phone found on [defendant’s]
person, text messages found on the phone, additional drugs found in the car
driven by [his codefendant], and statements made by [him and his codefendant]”;
(3) the trial court’s failure to apply the October 1, 2011 version of
section 4019 retroactively violated his
court erred “in imposing a $200 fee” under Health and Safety Code section
11372.5, subdivision (a); and (5) the abstract of judgment must be corrected to
reflect a $600 restitution fine. We
reject defendant’s first three claims but conclude that the last two have
merit. We modify and affirm the
judgment.
I. Background
Assigned to the Monterey County Joint Gang Task Force,
California Highway Patrol Officer Ted Rocha and
County Sheriff’s Deputy Jesse Pinon were on patrol in a marked police
vehicle on January 10, 2010. They were
traveling south on North Main Street in Salinas at about 9:54 p.m. when they
noticed a man who had stepped off the curb and “looked like he was going to try
to run across the street” to a mini-mart on the other side. North Main Street is a “[f]our-lane highway,”
and Rocha believed the man was in danger of being hit “[i]f he was to continue
in that path.” When the man “looked up”
and saw the officers, “he kind of stopped, went back to the curb. And that’s when we decided to contact
him.” “It was a -- basically a
pedestrian check when he was about to cross the street.”
Pinon, who was driving, made a U-turn. Rocha had been riding with his passenger-side
window down, and as the patrol car pulled up near where the man was standing,
Rocha informed him from the car that there was a crosswalk on North Main “that
lights up because pedestrians tend to get hit over there.” “Use the crosswalk over there,” Rocha told
the man, pointing to it.
“At that point, [defendant] started to turn. But at the same time, [Pinon] asked him if he
was [on] probation and/or parole.” The
man said he was on parole, and he provided his name and date of birth. The man was defendant.
Defendant “also stated that he had full gang terms with search
and seizure.” At that point, Rocha got
out of the patrol car and asked him “if he had any identification, I.D., on
him.” Rocha also asked “if he had any
illegal contraband on his person.”
Defendant said he did not, and Rocha said he was going to search
him. “ ‘Go
ahead,’ ” defendant replied. “At that point, [Rocha] was relying on
defendant’s statement” that he had a search and seizure condition. “But at the same time, [Pinon] was running
him through Salinas records.” Pinon
confirmed that defendant “had the full gang terms and search and seizure.”
Rocha asked defendant if he could search him, and defendant
said, “ ‘Yes.’ ”
In a pocket of defendant’s pants, Rocha found two baggies, each
containing 0.3 grams of what “looked like” and subsequently tested
presumptively positive for methamphetamine.
Defendant told Pinon he was waiting for a woman “[p]arked
directly across the street, at the mini[-]mart.” The woman was Abbott. Pinon approached Abbott’s car and saw she was
“holding a jewelry Baggie in her hand.”
When Abbott saw Pinon, she “spilled it over . . . onto the
floorboard.” “She said it was
meth.”
Abbott told Pinon “she had more bindles of meth, or Baggies of
meth, in her purse.” He searched it,
finding $152 in cash and “[t]hree additional jewelry Baggies of methamphetamine”
weighing 0.7, 1.1, and 1.3 grams. Abbott
said she was “holding them for [defendant].”
“[S]he stated she just holds it for him.
She doesn’t sell drugs[;] she just holds it for him.”
Pinon viewed a cell phone found in defendant’s possession and
found an incoming text that said, “ ‘front
me, and I’ll give you the cash tomorrow.’ ” There were other drug-related texts on the
phone. Based on his training and
experience, Pinon opined that the methamphetamine seized from defendant and
Abbott was held for sale. Defendant and
Abbott were arrested.
Defendant moved to suppress evidence of “[his] cellular
telephone, suspected methamphetamine taken from [his] pocket, [his] reactions
to police conduct during the unlawful seizure, statements by [him] made during
the seizure, and any scientific, forensic, or testimonial conclusions drawn
about these items, as well as any other items deemed to have been seized in
violation of the United States Constitution.”
He was just “standing on a public sidewalk,” his motion asserted,
“whereupon he was grabbed by two members of the local gendarme, grilled, and
searched” without a warrant.
After evidence was presented at the hearing on the suppression
motion, defendant’s trial counsel identified the dispositive issue—“to determine
if there was a detention prior to asking [defendant] the question about whether
he’s on probation or parole.” Defendant
had “obviously” been “target[ed]” by the officers and unreasonably detained,
his counsel contended. The district
attorney argued that the encounter was “a consensual contact.”
The trial court denied the suppression motion. “The Court feels that the officer’s behavior
is reasonable. At least one purpose was
to admonish [defendant] about crossing the street in a safe manner. And the detention, if any, was virtually
momentary. [¶] Given the particular assignment of these
officers, the location, the inquiry about whether the Defendant was on
probation or parole would be a reasonable one in the Court’s opinion. [¶] So
the Court denies the motion.”
Defendant entered the plea and admission noted above. He did so in exchange for a 40-month prison
sentence, consecutive to the sentence he was currently serving in a different
case and dismissal of the remaining charges and allegations.
The trial court imposed the agreed-upon 40-month prison
term. It awarded 304 days of custody
credit and 152 days of conduct credit, for a total of 456 days. Defendant filed a timely notice of
appeal.
II. Discussion
A. Motion to
Suppress
Defendant claims the trial court erred in denying his
suppression motion. He contends he was
illegally detained without reasonable suspicion, in violation of the Fourth
Amendment. We disagree.
“Whether a seizure occurred within the meaning of the
law and fact qualifying for independent review.
[Citations.] Accordingly, ‘we
review the trial court’s findings of historical fact under the deferential
substantial evidence standard, but decide the ultimate constitutional question
independently. [Citations.]’ [Citation.]
We must accept factual inferences in favor of the trial court’s
ruling. [Citation.] If there is conflicting testimony, we must
accept the trial court’s resolution of disputed facts and inferences, its
evaluations of credibility, and the version of events most favorable to the
People, to the extent the record supports them.
[Citations.]” (People v.
Zamudio (2008) 43 Cal.4th 327, 342 (Zamudio).)
“For purposes of Fourth Amendment analysis, there are
basically three different categories or levels of police ‘contacts’ or
‘interactions’ with individuals, ranging from the least to the most
intrusive. First, there are . . . ‘consensual
encounters’ [citation], which are those police-individual interactions which
result in no restraint of an individual’s liberty whatsoever—i.e., no
‘seizure,’ however minimal—and which may properly be initiated by police
officers even if they lack any ‘objective justification.’ [Citation.]
Second, there are . . . ‘detentions,’ seizures of an individual which
are strictly limited in duration, scope and purpose, and which may be
undertaken by the police ‘if there is an articulable suspicion that a person
has committed or is about to commit a crime.’
[Citation.] Third, and finally,
there are those seizures of an individual which exceed the permissible limits
of a detention, . . . which are constitutionally permissible only if the police
have probable cause to arrest the individual for a crime.” (Wilson v. Superior Court (1983) 34
Cal.3d 777, 784 (Wilson).)
Consensual encounters do not trigger Fourth Amendment
scrutiny. (Florida v. Bostick
(1991) 501 U.S. 429, 434 (Bostick ).)
Unlike detentions, they require no articulable suspicion that the person
has committed or is about to commit a crime.
(Wilson, supra, 34 Cal.3d at p. 784.)
The United States Supreme Court has made it “clear that a seizure does
not occur simply because a police officer approaches an individual and asks a
few questions.” (Bostick, at p. 434.) So long as a reasonable person would feel
free to disregard the police and go about his or her business, the encounter is
consensual and no reasonable suspicion is required on the part of the officer. (Ibid.) Only when the officer, by means of physical
force or show of authority, has in some manner restrained an individual’s
liberty does a seizure occur. (
“ ‘[T]o determine
whether a particular encounter constitutes a seizure, a court must consider all
the circumstances surrounding the encounter to determine whether the police
conduct would have communicated to a reasonable person that the person was not
free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.]
This test assesses the coercive effect of police conduct as a whole,
rather than emphasizing particular details of that conduct in isolation. [Citation.]
Circumstances establishing a seizure might include any of the
following: the presence of several officers,
an officer’s display of a weapon, some physical touching of the person, or the
use of language or of a tone of voice indicating that compliance with the
officer’s request might be compelled.
[Citations.] The officer’s
uncommunicated state of mind and the individual citizen’s subjective belief are
irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny
has occurred. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th
805, 821.)
Here, there is nothing in the record that suggests the
officers “ ‘by means of physical
force or show of authority, . . . in some way restrained [defendant’s]
liberty . . . .’ ” (Bostick,
supra, 501 U.S. at p. 434;
There is no evidence that they activated the patrol car’s siren or
flashing lights when they saw defendant step off the curb into the
highway. They simply made a legal
U-turn, pulled up near where defendant was standing, and stopped about five
feet away without blocking his path.
“Certainly, an officer’s parking behind an ordinary pedestrian
reasonably would not be construed as a detention.” (People
v. Franklin (1987) 192 Cal.App.3d 935, 940; People v. Perez (1989) 211 Cal.App.3d 1492, 1494 [no detention
where officer “activated the high beams as well as the spotlights on both sides
of the patrol car” and parked it “head on with [the] defendant’s vehicle,
although he left plenty of room for [the] defendant to drive away.”].)
The officers did not shine the vehicle’s spotlight on
defendant, even though “some giant trees that kind of shadow everything” made
the area “really dark.” Defendant was
not even “in the path of the headlights,” because “[h]e had stepped back onto
the sidewalk.” We find no evidence that
the officers commanded (or even asked) defendant to stop or to talk to
them. There was nothing intimidating or
coercive about their approach.
Nor was there anything intimidating or coercive about their
verbal exchange with defendant. We do
not view the presence of two officers as significant, because both remained in
the car until after defendant
admitted he was on parole. Rocha pointed
through his rolled-down passenger-side window at a nearby crosswalk and warned
defendant “that a lot of people get hit on the road.” The fact that Pinon then asked if defendant
was on probation or parole did not transform what was plainly a consensual
encounter into a detention. (
v. Bennett (1998) 68 Cal.App.4th 396, 399, 403 [holding that officer who
asked the defendant if he could talk to him and if he was still on parole “was
free to approach [the defendant on the street] and to pose each of the
questions he asked.”].)
Under all of the circumstances, a reasonable person would have
believed that he was “free ‘to disregard the police and go about his business.’ ”
(Bostick, supra, 501 U.S. at p. 434; Wilson,
supra, 34 Cal.3d at pp.
789-790.) As the officers’ initial
encounter with defendant was consensual, their discovery that he was on parole
and the subsequent search of his person were not products of an illegal
detention. (See § 3067, subd. (a)
[parolees are subject to search or seizure by a parole agent or peace officer
“at any time of the day or night, with or without a search warrant and with or
without cause”]; Samson v. California (2006)
547 U.S. 843, 846, 857 [upholding the constitutionality of § 3067].) Defendant was not “seized,” and his Fourth
Amendment rights were not violated.
The cases on which defendant relies do not convince us
otherwise. In People v. Jones (1991) 228 Cal.App.3d 519, an officer who saw the
defendant standing on the sidewalk with two other men “suddenly” pulled his
patrol car “to the wrong side of the road,” parked it “diagonally against the
traffic,” got out, and told the defendant, who was walking away, to stop. (Id.
at pp. 522-523.) When the defendant
reached towards a pocket, the officer “ ‘grabbed
his left forearm.’ ” (Id.
at p. 522.) As the officer “withdrew
[the defendant’s] hand from the pocket,” he saw a clear plastic bag containing
what he suspected was cocaine. (
He asked the defendant what it was, and when the defendant said he
thought it was methamphetamine, the officer arrested him. (Ibid.) The trial court granted the defendant’s
suppression motion. Affirming, the Court
of Appeal held that the defendant “[c]learly” was detained, because “[a]
reasonable man does not believe he is free to leave when directed to stop by a
police officer who has arrived suddenly and parked his car in such a way as to
obstruct traffic.” (Jones, at p. 523.)
Jones is
inapposite. Here, unlike in
“against the traffic” on the “wrong” side of the road. Unlike in Jones,
they did not get out of the car, nor did they order defendant to stop. They did not “grab” or even touch him. Defendant’s reliance on Jones is misplaced.
Defendant’s reliance on People v. Garry (2007) 156
Cal.App.4th 1100 (Garry ) is also misplaced. In that case, a uniformed officer
driving a marked police vehicle saw Garry standing on a corner next to a parked
car late at night. The officer focused
his spotlight on Garry, immediately got out of his car, and “all but ran
directly at” him. (Id. at pp. 1103-1104, 1112.)
Looking nervous, Garry started walking backwards, pointed to a nearby house,
and said, “ ‘ “I live
right there.” ’ ” (Id. at p. 1104.) The officer continued to approach, telling
Garry, “ ‘Okay, I just want to
confirm that’ ” and asking if
he was on probation or parole. When
Garry said he was on parole, the officer detained him and found narcotics on
his person. (Ibid.)
The trial court denied Garry’s suppression motion, finding
there was no detention until after he disclosed he was on parole. (Garry,
1105.)
The Court of Appeal reversed.
(Garry, supra, 156 Cal.App.4th at pp. 1106-1107.) Emphasizing the importance of the officer’s
“words and verbal tones,” how he “physically approached” Garry, and whether his
use of the spotlight constituted a “show of authority,” the court concluded
that a reasonable person would not have felt free to leave. (Id
at pp. 1110-1112.) “No matter how
politely [the officer] may have stated his probation/parole question, any
reasonable person who found himself in defendant's circumstances, suddenly
illuminated by a police spotlight with a uniformed, armed officer rushing
directly at him asking about his legal status, would believe [himself] to be
‘under compulsion of a direct command by the officer.’ [Citation.]
[The officer’s] actions set an unmistakable ‘tone,’ albeit largely
through nonverbal means, ‘indicating that compliance with the officer’s request
might be compelled.’ ” (Id.
at p. 1112.)
Garry is distinguishable. Unlike in Garry,
defendant was not simply standing on the sidewalk; he had stepped off into the
road and looked like he was about to “run across” a four-lane highway when the
officers decided to approach him. The
officers here, unlike the officer in Garry,
never turned on the patrol car’s spotlight.
They did not even keep defendant in their headlights, although he was
briefly illuminated by them as the car made the U-turn. The officers here, unlike the officer in
at” defendant; instead, they remained in the car until after he said he was on parole.
(Garry, supra, 156 Cal.App.4th at p. 1112.)
They did not begin by questioning defendant about his legal status;
although defendant suggests otherwise, Pinon
himself testified that Rocha told defendant to use the crosswalk before Pinon
asked him about his legal status.
name="_ftnref3" title="">[3] Here, unlike in Garry, there was nothing intimidating about the officers’ approach,
and that greatly reduced the impact of Pinon’s subsequent question about
defendant’s legal status. We think a
reasonable person would have believed he was free to terminate the encounter
and walk away. Defendant’s reliance on
B. Ineffective
Assistance of Counsel
Defendant argues in the alternative that if
“adequate to entitle him to suppression of all the fruits of the illegal
search,” then “he was denied the effective assistance of counsel, where counsel
failed to move for the suppression of a cell phone found on [defendant’s]
person, text messages found on the phone, additional drugs found in the car
driven by Jessica Abbot[t], and statements made by [defendant] and
Abbott.” The argument lacks merit.
A defendant seeking reversal for ineffective assistance of
counsel must prove both deficient performance and prejudice. (People
v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland
v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The first element “requires showing that
counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland,
deficient performance prejudiced the defense.”
(Ibid.) A court deciding an ineffective assistance
claim does not need to address the elements in order, or even to address both
elements if the defendant makes an insufficient showing on one. (Id.
at p. 697.)
Defendant cannot show deficient performance here. As we have already determined, his encounter
with the police was consensual until after
he acknowledged he was on parole.
Since he was never illegally detained, there was no basis for a
suppression motion. The failure to make
a meritless claim is not deficient performance.
(Strickland,
C. Section 4019
1. Background
Defendant spent 304 days in the Monterey County jail between
his arrest on January 11, 2010, and his November 10, 2010, release on bail.
effect during the first 14 days of his presentence incarceration. (Former § 4019; Stats. 1982, ch. 1234,
§ 7.) The January 25, 2010 version
was in effect during the remaining 290 days.
(Former § 4019; Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28,
§ 50, eff. Jan. 25, 2010.) As
applied to defendant, however, both required the same calculation.
Under the 1982 version of section 4019, prisoners who complied
with reasonable rules and regulations and did not refuse to satisfactorily
perform labor as assigned could earn six days’ credit for every four days
actually served. (Former § 4019,
subds. (b), (c), (f).) The January 25,
2010 version of the statute increased this amount to four days’ credit for
every two days served. (Former
§ 4019, subds. (b)(1), (c)(1), (f).)
This version’s more generous credit calculation did not apply, however,
to prisoners required to register as sex offenders, committed for a “serious
felony” (§ 1192.7), or with a prior conviction for a “serious” or
“violent” felony (§§ 1192.7, 667.5).
(Former § 4019, subds. (b)(2), (c)(2).) Those prisoners’ credit was calculated at the
former rate. (Former § 4019, subd.
(f); Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50.) Since defendant was convicted of a “serious”
felony, he was not eligible for four-for-two credit under the January 25, 2010
version of section 4019. (Former
§ 1192.7, subd. (c)(28); People v.
Briceno (2004) 34 Cal.4th 451, 459.)
Accordingly, the probation department calculated and the court awarded
six-for-four credit—304 days of custody credit and 152 days of conduct credit,
for a total of 456 days. (See
v. Williams (2000) 79
Cal.App.4th 1157, 1176, fn. 14 [describing calculation].)
The conduct credit statutes were amended several more times
after defendant was sentenced in this case.
In September 2010, the Legislature enacted Senate Bill No. 76, which
amended section 2933 to provide that “[n]otwithstanding section 4019 and
subject to the limitations of this subdivision, a prisoner sentenced to the
state prison . . . for whom the sentence is executed shall have one day
deducted from his or her period of confinement for every day he or she served .
. . from the date of arrest until state prison credits pursuant to this article
are applicable to the prisoner.” (Former
§ 2933, subd. (e)(1); Stats. 2010, ch. 426, § 1.) Section 4019’s exception for prisoners
required to register as sex offenders, committed for a “serious” felony, or
with a conviction for a “serious” or “violent” felony was moved to section
2933, which also provided that former section 4019, not section 2933, applied
to prisoners subject to the exception.
(Former § 2933, subd. (e)(3).)
The bill amended section 4019 to restore the former six-for-four ratio
for prisoners who committed their crimes on or after September 28, 2010. (Stats. 2010, ch. 426, § 2, eff. Sept.
28, 2010.)
A year later, sections 2933 and 4019 were amended again. (Stats. 2011, 1st Ex. Sess., 2011-2012, ch.
12, §§ 16, 35, eff. Sept. 21, 2011, operative Oct. 1, 2011.) As relevant here, that amendment deleted
former section 2933, subdivision (e)’s exception for prisoners required to
register as sex offenders, committed for a “serious” felony, or with a
conviction for a “serious” or “violent” felony.
(See Historical and Statutory Notes to section 2933.) It also deleted the reference to former
section 2933, subdivision (e) in section 4019.
Under the amended version of section 4019, prisoners who comply with
reasonable rules and regulations and do not refuse to satisfactorily perform
labor as assigned can earn four days’ presentence credit for every two days
actually served. (§ 4019, subds.
(b), (c), (f).) The amended version of
section 4019 expressly provides that it “shall apply prospectively” only, to
those prisoners confined for crimes “committed on or after October 1,
2011.” (§ 4019, subd. (h).) “Any days earned by a prisoner prior to
October 1, 2011, shall be calculated at the rate required by the prior
law.” (§ 4019, subd. (h).)
2. Analysis
Defendant claims entitlement to an additional 152 days of
conduct credit under the October 1, 2011 version of section 4019. He acknowledges the Legislature’s express
statement of intent that the statute apply prospectively only, but contends
that equal protection principles “compel” retroactive application here. We disagree.
Both the federal and state Constitutions guarantee the
laws. (U.S. Const., 14th Amend.; Cal.
Const., art. I, § 7.) “ ‘ “
protection of the laws compels recognition of the proposition that persons
similarly situated with respect to the legitimate purpose of the law receive
like treatment.” ’ [Citation.]”
(Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.) Since the
amendments to section 4019 do not involve a “ ‘ “ ‘suspect
classification[]’ ” ’ ”
or a “ ‘ “ ‘fundamental
interest[],’ ” ’ ”
courts apply the rational basis test to determine whether the “distinction
drawn by the challenged statute bears some rational relationship to a
conceivable legitimate state purpose.” (
800, 805 (Stinnette).
Defendant contends that he is similarly situated to a
defendant whose crime was committed after October 1, 2011, and whose custody
time occurred after October 1, 2011.
In People v. Brown (2012) 54
Cal.4th 314, the California Supreme Court rejected a similar argument with
respect to a previous version of section 4019.
The court held that prospective-only application of the new version of
the statute did not violate equal protection because the purpose of the statute
was to create an incentive for good behavior, which could not be done
retroactively. The same is true
here. We therefore reject defendant’s
contention.
D. Fees
Defendant contends and the Attorney General concurs that the
trial court erred “in imposing a $200 fee” under Health and Safety Code section
11372.5. (Capitalization omitted.) We do not think the court imposed a $200
laboratory fee. We agree, however, that
the abstract of judgment must be corrected to accurately reflect the fees the
court ordered.
According to the transcript of the sentencing hearing, the
court ordered defendant to “[p]ay an additional $200 Health and Safety Code [
subdivision (a) authorizes a criminal laboratory analysis fee “in the amount of
fifty dollars ($50) for each separate offense,” while Health and Safety Code
section 11372.7, subdivision (a) authorizes a drug program fee “in an amount
not to exceed one hundred fifty dollars ($150) for each separate offense.” (Health & Saf. Code, §§ 11372.5,
subd. (a), 11372.7, subd. (a).)
Here, where defendant was convicted of a single offense, the two fees
total $200, and it seems clear to us that the trial court intended to impose
both of these fees. The abstract of
judgment, however, reflects a $200 lab fee plus a $200 drug program fee.
An abstract of judgment that improperly modifies an oral
pronouncement presumably does so as a result of clerical error, and clerical
errors can be corrected at any time. (
(Mesa).) “An abstract of judgment is not the judgment
of conviction; it does not control if different from the trial court’s oral
judgment and may not add to or modify the judgment it purports to digest or
summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).) “Courts may
correct clerical errors at any time . . . .”
(Ibid.) “[A] court—including an appellate court—that
properly assumes or retains jurisdiction of a case ‘may correct such errors on its
own motion or upon the application of the parties.’ ” (Id. at pp. 186-187, quoting In
re Candelario (1970) 3 Cal.3d 702, 705).)
Here, the abstract of judgment must be amended to reflect a $50 (not a
$200) laboratory fee pursuant to Health and Safety Code section 11372.5 and a
$150 (not a $200) drug program fee pursuant to Health and Safety Code section
11372.7.
E. Restitution Fine
Defendant contends and the Attorney General concurs that the
abstract of judgment must be corrected to reflect a $600 rather than an $800
restitution fine imposed pursuant to former section 1202.4, subdivision
(b). We agree.
At sentencing, the court imposed “a fine of $200 for each year
of incarceration pursuant to 1202.4(b) . . . .”
Since defendant was sentenced to three years and four months in prison,
the abstract of judgment should have reflected a $600 fine ($200 x 3 =
$600). Instead, it reflects an $800
fine. The abstract must be corrected to
reflect a $600 fine pursuant to former section 1202.4, subdivision (b). (Mesa,
supra, 14 Cal.3d at p. 471;
III. Disposition
The abstract of judgment is modified to reflect a $50 (not a
$200) criminal laboratory analysis fee pursuant to Health and Safety Code
section 11372.5, subdivision (a) and a $150 (not a $200) drug program fee
pursuant to Health and Safety Code section 11372.7, subdivision (a).
The abstract of judgment is further modified to reflect a $600
(not an $800) restitution fine pursuant to former section 1202.4, subdivision
(b).
The trial court shall prepare an amended abstract of judgment
reflecting these modifications and forward a certified copy of the abstract to
the Department of Corrections and
Rehabilitation.
As modified, the judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Bamattre-Manoukian, Acting P. J.
______________________________
Duffy, J.
name="_ftn1" title="">[1] Further statutory references are to
the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] We take the facts from the transcript
of the preliminary examination and from the probation report, which includes
facts about codefendant Jessica Abbott that were not presented at the hearing
on the suppression motion or at any other time in the trial court. Abbott pleaded no contest to sale and/or
transportation of a controlled substance.
She was placed on three years’ felony probation.
