P. v. Hosington
On June 19, 2006, defendant Michael J. Hoisington pleaded guilty to unlawful possession of hydrocodone (Health & Saf. Code, 11350, subd. (a)), and was placed on probation for a period of three years. The court revoked defendants probation after he failed to appear for a June 26, 2006 meeting with his probation officer. The court later sentenced defendant to the upper term of three years and imposed various fees, fines and assessments. Defendant appeals, contending the court violated the Substance Abuse Crime Prevention Act of 2000 (Proposition 36) when it sentenced him to prison instead of returning him to probation. Defendant contends the court improperly imposed a $600 restitution fine. He also contends a $600 parole revocation fine must be reduced to $200, a $175 laboratory fee must be reduced to $170, and a $525 drug program fee must be reduced to $510. In a supplemental brief, defendant contends the court violated his federal constitutional rights to a jury trial and to proof beyond a reasonable doubt by sentencing him to the upper term without first having a jury determine the existence of facts permitting an upper term sentence, using a standard of beyond a reasonable doubt.
Court find no violation of Proposition 36 and, in light of the recent decisions of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, find the court did not violate defendants constitutional rights by imposing the upper term. The Attorney General concedes defendants claims of error as to the restitution and parole revocation fines. The Attorney General does not contest defendants contentions as to the laboratory and drug program fees, noting the dizzying array of such assessments and their inclusion in various codes, and pointing out the difference between the amounts imposed and those claimed by defendant to be proper is de minimus (i.e., $20). Court affirm the judgment of conviction, but modify the abstract of judgment to eliminate or reduce the fines and fees in accordance with defendants contentions.
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