P. v. Labrecque

Filed 6/25/07 P. v. Labrecque 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, John S. Fisher, Judge. Affirmed as modified; remanded with directions.

Alger & Alger and Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.

_________________________

I. INTRODUCTION

Defendant, John Michael Labrecque, appeals after he was found in violation of his probation. We hold: defendant received an incorrect award of presentence custody credit; he was entitled to credit for 185 days of actual presentence custody plus 92 days of conduct credit for a total of 277 days; additional assessments, a surcharge, and a penaltymust be imposed; and the abstract of judgment must be amended. We thus

modify the judgment.

II. BACKGROUND

Defendant was arrested on February 17, 2005 for methamphetamine transportation (Health & Saf. Code, 11379, subd. (a)) and possession for sale (Health & Saf. Code, 11378) (the present case). Bail was set at $30,000. Defendant was released on bail on February 28, 2005. An August 24, 2005 information further alleged defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). On October 11, 2005, defendant pled no contest to the methamphetamine transportation charges. The remaining charges were dismissed. He was sentenced to four years in state prison. Defendant was ordered to pay: a $20 court security fee (Pen. Code, 1465.8, subd. (a)(1)); a $50 criminal laboratory analysis fee (Health & Saf. Code, 11372.5, subd. (a); a $200 restitution fine (Pen. Code, 1202.4, subd. (b)); and a $200 parole restitution fine. (Pen. Code, 1202.45.) No penalty assessments were imposed. Execution of sentence was suspended and defendant was placed on three years probation on the condition that he serve 365 days in the county jail. Defendant was also ordered, among other things, to: obey all laws; not to use or possess any narcotics, dangerous or restricted drugs or assorted paraphernalia, except with a valid prescription; and to stay away from places where users, buyers, or seller[s] congregate; and [n]ot to associate with persons known by him to be narcotic or drug users or sellers. A stay of execution of defendants county jail time was granted to January 9, 2006.

While on probation in the present case, on December 15, 2005and prior to the date defendant was to surrender to serve his county jail time as a condition of his probationhe was arrested for firearm possession by a felon (Pen. Code, 12021, subd. (a)(1)) and two counts of drug possession. (Health & Saf. Code, 11350, subd. (a)) (the new case). Bail was set at $35,000. Defendant was released on bail on December 28, 2005. On January 5, 2006, defendant pled not guilty to all three counts in the new case. Further, on the prosecutors motion, defendants bail was increased from $35,000 to $100,000. Defendants bail bond was ordered exonerated and defendant was remanded to custody.

On January 9, 2006, defendant was due to surrender to serve his county jail time as a condition of his probation in the present case. The trial courts January 9, 2006 minute order states: The defendant fails to appear, with sufficient excuse and not represented by counsel. [] Bail set at no bail. [] Defendant is in custody on another matter. Todays court date is for surrender only. A temporary commitment is issued for the county jail time the defendant is to serve on this case. A violation of probation [hearing] is set for [January 17, 2006]. On January 17, 2006, defendants probation in the present case was summarily revoked and he was remanded without bail.

On March 16, 2006, following a preliminary hearing, defendant was held to answer in the new case. An information was filed on March 30, 2006, at which time defendant pled not guilty to all three counts. Bail remained set at $100,000. Defendant remained in custody.

The probation violation hearing in the present case was held on June 29 and 30, 2006. Officer Daniel Jones testified that on December 15, 2005, he received information an individual was selling narcotics at a specified address. Officer Jones determined defendant was the individual residing at the address. Also, Officer Jones learned defendant was on formal probation and subject to a warrantless search and seizure condition. Officer Jones located defendant. Defendant said the apartment at the indicated address was his. Defendant gave Officer Jones permission to search the apartment. Defendant said his girlfriend and daughter resided there with him. Defendants name was on the apartment lease, he received mail there, and mens clothing was found in the apartment. The officers further found a loaded .25 caliber Beretta semi-automatic handgun in the apartment. At the time of the search, defendant said: I thought [the gun] was thrown away. Thats not mine[.] . . . Defendant said the gun belonged to his former roommates. Defendant knew the former roommates as Brent and Chickie. Defendants girlfriend, Charissa Chotard, testified: the searched apartment was hers; defendant did not live there because she had a drug problem and he couldnt be around it due to the fact that he was on probation; defendant was living with his mother in Canoga Park; defendant did not know there was a gun in her apartment; the gun had belonged to a former roommate; and she had been planning to turn it in to the Guns For Gifts program she had heard about on television.

On June 30, 2006, defendant was found in violation of his probation. The previously suspended four-year sentence was imposed. Defendant received credit for 160 days actual custody plus 80 days of conduct credit for a total presentence custody credit of 240 days. Also on June 30, 2006, the charges in the new case were dismissed in the furtherance of justice pursuant to Penal Code section 1385, subdivision (a). The trial court noted the dismissal was [b]ased on the state prison sentence imposed . . . in the present case.

On July 19, 2006, defendant filed a notice of appeal from the June 30, 2006 probation violation finding and ensuing judgment. By letter dated November 20, 2006, defendants appellate counsel asked the trial court to correct defendants presentence custody credit to reflect 177 days in actual custody plus 88 days of conduct credit for a total presentence custody credit of 265 days. On December 12, 2006, the trial court entered the requested order and directed issuance of an amended abstract of judgment.

III. DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel has filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On January 11, 2007, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. Defendant has not filed any response. We asked the parties to brief the question whether defendant received a correct award of presentence custody credits. As discussed below, we find defendant received insufficient credit and certain penalty assessments, a state surcharge, and a court construction penalty should have been imposed. We modify the presentence custody credit award and the fines. We direct issuance of an amended abstract of judgment.

First, defendant did not receive a proper presentence credit award. Penal Code section 2900.5 states: (a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, . . . [] (b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed. [] (c) For the purposes of this section, term of imprisonment includes any period of imprisonment imposed as a condition of probation . . . [] . . . The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213. The failure to award the proper amount of credit is a jurisdictional error which may be raised at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15.)

Defendants 12 days in custody from February 17 to 28, 2005, were solely attributable to the present case. He was not arrested on the new charges until December 15, 2005. Therefore, defendant is entitled to credit for those 12 days. ( 2900.5; People v. Johnson (2002) 28 Cal.4th 1050, 1052; In re Rojas (1979) 23 Cal.3d 152, 156.)

Defendant was in custody on the new case for 14 days from December 15 to 28, 2005, and for 4 days from January 5 to 8, 2006. Defendant was at that time out of custody on probation in the present case, with a January 9, 2006 surrender date. Those 18 days are solely attributable to the new case. Defendant is not entitled to credit for the 18 days in actual custody from December 15 to 28, 2005, and from January 5 to 8, 2006. (In re Rojas, supra, 23 Cal.3d at pp. 156-157; People v. Huff (1990) 223 Cal.App.3d 1100, 1104, 1105.) That the new charges were eventually dismissed, and there was no resulting sentence against which to credit the time in custody, does not transmute the 18 days of custody to time attributable to the present case. (In re Marquez (2003) 30 Cal.4th 14, 20-21; People v. Huff, supra, 223 Cal.App.3d at p. 1105.) Sometimes dead timethat is, time spent in custody for which [the defendant] receives no benefit is unavoidable. (In re Marquez, supra, 30 Cal.4th at p. 20; see People v. Gonzalez (2006) 138 Cal.App.4th 246, 252-254.)

On January 9, 2006, defendant was due to surrender to serve his county jail time as a condition of his probation in the present case. At that time he was already in custody on the new charges. Bail had been set at $100,000 in the new case. However, the trial court, on January 9, 2006, issued a no bail order upon the probation violation charges in the present case. Defendant remained in custody in the present case to and including June 30, 2006. On June 30, 2006, defendant was found in violation of his probation in the present case, the previously suspended sentence was imposed, and the new charges were dismissed. Therefore, defendant was in custody on both the present case and the new case for 173 days from January 9 to June 30, 2006. But because defendant was being held without bail in the present case, he could not have secured his release even if he had made bail in the new case. Moreover, the new case was subsequently dismissed, so there was no duplicative credit issue. (In re Marquez, supra, 30 Cal.4th at p. 23; People v. Gonzalez, supra, 138 Cal.App.4th at p. 254.) Under these circumstances, defendant is entitled to credit in the present case for the 173-day period of presentence custody from January 9 to June 30, 2006. (In re Marquez, supra, 30 Cal.4th at pp. 20-21; People v. Huff, supra, 223 Cal.App.3d at pp. 1104-1106; People v. Odom (1989) 211 Cal.App.3d 907, 909-911.) Hence, defendant was entitled to 185 days of actual custody credit plus 92 days of conduct credit for a total presentence custody credit of 277 days. (Pen. Code,  2900.5, 4019; In re Marquez, supra, 30 Cal.4th at pp. 25-26; People v. Smith (1989) 211 Cal.App.3d 523, 527.)

Second, the trial court failed to impose the mandatory Government Code section 76000, subdivision (a) and Penal Code section 1464, subdivision (a) penalty assessments on the Health and Safety Code section 11372.5, subdivision (a) laboratory fee. The trial court must impose penalty assessments pursuant to Penal Code section 1464, subdivision (a) and Government Code section 76000, subdivision (a) on the laboratory analysis fee. Penal Code section 1464, subdivision (a) provides in relevant part, [T]here shall be levied a state penalty, in an amount equal to ten dollars ($10) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . . Similarly, Government Code section 76000, subdivision (a) provides, In each county there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . . The foregoing penalty assessments are mandatory. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Martinez (1998) 65 Cal.App.4th 1511, 1521; Penalty Assessments and Court Costs, 62 Ops. Cal. Atty. Gen. 13, 17 (1979); see also People v. Ramsey (2000) 79 Cal.App.4th 621, 637.) The failure to impose these mandatory penalty assessments is a jurisdictional error that may be resolved for the first time on appeal. (People v. Talibdeen, supra, 27 Cal.4th at p. 1157; People v. Hong (1998) 64 Cal.App.4th 1071, 1084.)

Third, the trial court should have imposed a Penal Code section 1465.7, subdivision (a) $10 state surcharge on the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee. (People v. Chavez (2007) 149 Cal.App.4th 1340, 1343-1344, as mod. May 21, 2007, hereafter Chavez, supra.) Fourth, a $25 Government Code section 70372, subdivision (a) courthouse construction penalty should have been added to the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee. (Chavez, supra.) Fifth, a $25 Government Code section 70372, subdivision (a) courthouse construction penalty should have been added to the Penal Code section 1464, subdivision (a) penalty assessment imposed on the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee. (Chavez, supra.) Sixth, a $17.50 Government Code section 70372, subdivision (a) courthouse construction penalty should have been added to the Government Code section 76000, subdivision (a) penalty assessment imposed on the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee. (Chavez, supra.) Seventh, a $100 courthouse construction penalty should have been imposed on both the Penal Code section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. Needless to note, the addition to the Penal Code section 1202.45 parole restitution fine is stayed. (Chavez, supra.)

Eighth, the abstract of judgment fails to reflect the fines orally imposed by the trial court. The abstract of judgment fails to reflect the following fines orally imposed by the trial court: the $200 Penal Code section 1202.4, subdivision (b)(1) restitution fine; the stayed $200 Penal Code section 1202.45 parole restitution fine; the $20 Penal Code section 1465.8, subdivision (a)(1) court security fee; and the Health and Safety Code section 11372.5, subdivision (a) laboratory fee. These matters plus the additional assessments, penalty, and surcharge must be set forth on the abstract of judgment. (People v. Martinez, supra, 65 Cal.App.4th at p. 1523; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1331.) 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 reflect a presentence custody credit of 277 days, consisting of 185 days of actual custody, and 92 days of conduct credit. The fines are modified as discussed in the body of this opinion. The superior court clerk shall prepare and deliver to the Department of Corrections and Rehabilitation an amended abstract of judgment that sets forth the foregoing custody credit and fines. The trial court shall personally supervise the preparation of the corrected abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

I concur:

ARMSTRONG, J.

J. Kriegler, Concurring.

I concur fully in the judgment. The opinion of the court demonstrates, however, that the myriad of fines, fees, and assessments required by law has reached the point of absurdity. The obligation to correctly impose and collect the dizzying number of charges required in a criminal action places a terrible burden on the trial courts and clerical staff of the trial courts. In addition, defense counsel has a nearly impossible task of accurately explaining the potential financial consequences of conviction to a client. Consolidation of the provisions creating these fines, fees, and assessments seems ripe for legislative consideration.

KRIEGLER, J.

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