P. v. Zamora

Filed 8/22/07 P. v. Zamora CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Affirmed as modified.

Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Susan Sullivan Pithy, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

I. INTRODUCTION

Defendant, Anthony James Zamora, appeals from his conviction for possession of methamphetamine for sale. (Health & Saf. Code, 11378.) Defendant admitted that he was previously convicted of a serious felony. Defendants sole contention on appeal is that the trial court improperly imposed the upper term. The Attorney General argues the trial court failed to impose mandatory fines and penalty assessments and the trial court failed to impose or strike the prior prison term enhancement. Affirmed with modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On September 22, 2005, defendants apartment was searched by Long Beach Police Detective James Richardson and Officer Robert Lopez. The search of the apartment revealed: plastic sandwich bags; a digital scale with white crystalline residue; a bill from Charter Cable addressed to defendant at that apartment; two plastic bindles that were knotted on one end and contained a white substance believed to be methamphetamine; another sandwich bag containing chunks and rocks of crystal substance believed to be methamphetamine; and a silver pill box, which contained a crystal substance believed to be methamphetamine. Barbara Stambaugh, defendants companion who resided with him, was on probation for a drug-related offense at the time of the search. Ms. Stambaugh gave the officers the apartment keys. Subsequent testing of the substance recovered from defendants apartment revealed one item that contained approximately .92 grams of methamphetamine. Another substance with a net weight of 22.10 grams contained methamphetamine. Detective Christopher Bolt, a member of the special enforcement section of the Long Beach Police Department, had extensive training in the consumption and sale of methamphetamine. Based upon a hypothetical scenario where 22.01 grams of methamphetamine packaged in four separate bindles were found in the possession of an unemployed individual, Detective Bolt believed the contraband was possessed for purposes of sale. The quantity was equivalent to approximately 1,000 to 1,100 individual doses.

III. DISCUSSION

A. Upper Term

Citing Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 868-871] and Blakely v. Washington (2004) 542 U.S. 296, 301, defendant argues that his Fourteenth Amendment right to a trial by jury was violated by the trial courts imposition of the upper term as to his methamphetamine possession for sale conviction because the sentence was based on facts not determined to be true by a jury. In the recent case of People v. Black (July 19, 2007, S126182) ___ Cal.4th  ___, ___, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of  Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 863-864].  Our Supreme Court held:  [A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial.  (People v. Black, supra, ___ Cal.4th at p. ___, original italics.)  The Black court further held:  It follows that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions.  (People v. Black, supra, ___ Cal.4th at p. ___.)

In this case, defendants constitutional right to a jury trial was not violated by the trial courts imposition of the upper term sentence for his conviction of possessing a controlled substance for sale.  Defendant admitted that he had two prior convictions for robbery and possession of a controlled substance. As a result, the admission constituted at least one legally sufficient aggravating circumstance. In addition, the trial court noted that defendant had a juvenile sustained petition for burglary and served prior prison terms. The statutory maximum sentence to which defendant was exposed was the upper term.  (People v. Black, supra, ___ Cal.4th at p. ___.) 

B. Drug Laboratory Fee

First, the trial court did not impose a Health and Safety Code section 11372.5, subdivision (a) laboratory fee. The Attorney General argues that the trial court erroneously failed to impose the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fine and two penalty assessments and a construction penalty. Health and Safety Code section 11372.5, subdivision (a), provides in relevant part:  Every person who is convicted of a violation of Section 11350 . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.  The drug laboratory fee is mandatory and should have been imposed.  (See People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) 

Second, the trial court was also obligated to impose penalty assessments pursuant to section 1464, subdivision (a) in the sum of $50 and Government Code section 76000, subdivision (a) in the amount of $35 on the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Martinez, supra, 65 Cal.App.4th at p. 1519.)

Third, the drug laboratory fee is subject to the state court construction penalty set forth in Government Code section 70372, subdivision (a) which states in relevant part, [T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . . The state court construction penalty applies to all fines which includes the Health and Safety Code section 11372.5, subdivision (a) laboratory fee. Health and Safety Code section 11372.5, subdivision (a) refers to the fee as an increment of the total fine.^[1] The laboratory fee is an increment of the total fines imposed by the trial court. (People v. Martinez, supra, 65 Cal.App.4th at p. 1522; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.) Hence, the $25 state court construction penalty is to be added to the Health and Safety Code section 11372.5, subdivision (a) laboratory fee. (People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.)

Fourth, the Government Code section 70372, subdivision (a) state court construction penalty extends to the section 1464, subdivision (a) and Government Code section 76000 subdivision (a) penalty assessments as well. Thus, on the $50 section 1464, subdivision (a) penalty assessment, an additional $25 state court construction penalty must be imposed. The state court construction penalty on the Government Code section 76000, subdivision (a) penalty assessment in this case is $17.50. ($15 for the first $30 and $2.50 for the final $5 which is the fraction thereof.)

C. Restitution Fines

The trial court imposed a $200 section 1202.4, subdivision (b)(1) restitution fine and stayed the $200 section 1202.45 parole revocation restitution fine. These two restitution fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. ( 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) However, the case is different in terms of the Government Code section 70372, subdivision (a) state court construction penalty which, as noted, states in part, [T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . . The state court construction penalty applies to every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . which includes restitution fines. Therefore, a state court construction penalty of $100 is to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. (Needless to note, the additions to the section 1202.45 parole revocation restitution fines are stayed.) The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is modified to impose the fines and penalties discussed in the body of this opinion. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation by the superior court clerk. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1] Health and Safety Code section 11372.5, subdivision (a) states: 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. The court shall increase the total fine necessary to include this increment. [] With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law.