P. v. Raye

Filed 5/9/07 P. v. Raye CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

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In January 2003, defendant Marlon Raye was arrested for driving while his drivers license was suspended or revoked. An inventory of his car revealed five grams of methamphetamine, a glass smoking pipe, and two straws with residue. Defendant pled no contest to transporting methamphetamine and admitted that he committed the crime while released on bail or his own recognizance following his arrest for a felony. He was placed on Proposition 36 probation.

In August 2004 and again in September 2005, defendant admitted violating conditions of his Proposition 36 probation. Each time, probation was reinstated.

Thereafter, his probation officer alleged that defendant violated conditions of his probation by, among other things, doing the following:

On September 22, 2005, defendant failed to report to the Proposition 36 office as ordered.

In November 2005, defendant became agitated and started yelling when an officer began searching a car parked near where defendant was standing. When he refused to stop yelling, he was handcuffed and placed in the patrol car. He then tried to kick out the door and window of the patrol car.

Following a contested hearing, the trial court found that both allegations were true. Declining to reinstate probation, the court sentenced defendant to state prison for five years, awarded 339 days of custody credit and 168 days of conduct credit, and ordered him to pay a $200 restitution fine (Pen. Code, 1202.4), a $200 restitution fine suspended unless parole is revoked (Pen. Code, 1202.45), a $50 laboratory analysis fee (Health & Saf. Code, 11372.5, subd. (a)) plus an $85 penalty assessment, and a $150 drug program fee (Health & Saf. Code,  11372.7) plus a $250 penalty assessment.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

Our review of the record discloses that the abstract of judgment must be corrected to reflect that the laboratory analysis fee is $50 (not $170 as shown on the abstract), and that the court imposed an $85 penalty assessment on the laboratory analysis fee and a $250 penalty assessment on the drug program fee. All fines and fees must be set forth in the abstract of judgment. [Citation.] (People v. High (2004) 119 Cal.App.4th 1192, 1200.)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

The judgment is affirmed. The trial court is directed to (1) correct the abstract of judgment to reflect the imposition of an $85 penalty assessment on the $50 laboratory analysis fee and the imposition of a $250 penalty assessment on the $150 drug

program fee, and (2) send a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

RAYE , J.

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