P. v. Queen
Filed 6/14/13 P. v. Queen CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
>
and Respondent, and Appellant. | A136591 ( Super. |
Melody
Ann Queen appeals from a judgment suspending execution of a two-year prison
term and placing her on felony probation after she pled guilty to a single
count of transporting methamphetamine in violation of Health and Safety Code
section 11379, subdivision (a).
name="_ftnref1" title="">[1] She challenges the imposition and amount of a
drug program fee and laboratory analysis fee.
order must be amended to reflect the proper breakdown of the assessments and
surcharges included in both fees and to correct a
reflect the fees imposed. We reject
appellant’s argument that the court on remand must determine her ability to pay
the drug program fee.
DISCUSSION
The
superior court imposed a $570 drug program fee under section 11372.7, which
provides in relevant part, “(a) Except as otherwise provided . . . each person
who is convicted of a violation of this chapter shall pay a drug program fee in
an amount not to exceed one hundred fifty dollars ($150) for each separate
offense. . . . [¶] (b) The court shall determine whether or not the
person who is convicted of a violation of this chapter has the ability to pay a
drug program fee. . . . If the court determines that the person does not have
the ability to pay a drug program fee, the person shall not be required to pay
a drug program fee.†The court also
imposed a $190 laboratory analysis fee under section 11372.5, which
provides, “(a) Every person who is convicted of a violation of Section . . .
11379 . . . shall pay a criminal laboratory analysis fee in the amount of
fifty dollars ($50) for each separate offense.†According to the probation report, these fees
included the assessments and surcharges required by rule 4.102 of the
California Rules of Court, as set forth in the Uniform Bail and Penalty Schedule.
(See People v. Castellanos (2009) 175
Cal.App.4th 1524, 1528-1530 [summarizing various assessments, surcharges and
penalties applicable to fees].) No
breakdown of the assessments and surcharges was contained in the probation
order.
Appellant
argues the case should be remanded so the superior court can provide a specific
breakdown of the fees, assessments and surcharges included within the amounts
imposed under sections 11372.7 and 11372.5.
The People submit no remand is required because the $570 figure for the
drug program fee and the $190 figure for the laboratory analysis fee correctly
reflect the statutorily required assessments and surcharges. According to the People, the $570 drug
program fee includes: (1) A $150 fee under section 11372.7, subdivision (a);
(2) A $150 penalty assessment under Penal Code section 1464; (3) a $30 penalty
surcharge under Penal Code section 1465.7; (4) a $105 penalty assessment under
Government Code section 76000; (5) a $30 penalty assessment for Mendocino
County under Government Code section 76000.5; (6) a $75 construction
penalty under Government Code section 76372; (7) a $15 DNA penalty under
Government Code section 76104.6, and (8) a $15 state DNA penalty under
Government Code section 76104.7.
The
People also offer the following breakdown of the $190 laboratory analysis
fee: (1) A $50 fee under section
11372.5, subdivision (a); (2) A $50 penalty assessment under Penal Code section
1464; (3) a $10 penalty surcharge under Penal Code section 1465.7; (4) a $35
penalty assessment under Government Code section 76000; (5) a $10 penalty
assessment for Mendocino County under Government Code section 76000.5;
(6) a $25 construction penalty under Government Code section 76372; (7) a
$5 DNA penalty under Government Code section 76104.6, and (8) a $5 state
DNA penalty under Government Code section 76104.7.
Although
we do not doubt the accuracy of the People’s computations, we agree with
appellant these amounts should have been set forth in the probation order. (People
v. Eddards (2008) 162 Cal.App.4th 712, 717-718 [case remanded so court
could prepare order specifying the statutory bases of all fees, fines and
penalties imposed upon the defendant in a case where probation was granted];
1200 [remanding case with directions to trial court to amend abstract of
judgment to identify amounts and statutory bases of all fines, penalties and
fees imposed].) “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.†(High
at p. 1200.) We will remand the case for
this limited purpose. This will also
give the superior court the opportunity to correct the minute order from the
sentencing hearing, which does not accurately recite the amount of the drug
program and laboratory fees actually imposed (incorrectly stating that the
court imposed a $170 drug program fee and a $590 laboratory analysis fee).
Appellant
claims the drug program fee was unlawful because it was imposed without the
requisite determination she had the ability to pay. The argument is forfeited due to trial
counsel’s failure to object. (
589, 597 [failure to object to booking fees based on ability to pay forfeits
issue].)
DISPOSITION
The
case is remanded to the superior court, which is directed to prepare an amended
probation order reflecting the breakdown of all assessments and surcharges
included in the $570 drug program fee imposed under section 11372.7 and the
$190 laboratory analysis fee imposed under section 11372.5, along with the
statutory basis for each component. The
minute order for the sentencing hearing held on August 17, 2012, should be
amended to correctly reflect the fees imposed.
NEEDHAM,
J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.
Safety Code unless otherwise indicated.
the probation order should be modified to clarify she would receive day-for-day
credit against a 365-day jail term ordered as a condition of probation if she
successfully completed a 12-month residential drug treatment program. Appellant withdrew this argument in her reply
brief and we address it no further.
