P. v. Tadeo

Filed 4/19/06 P. v. Tadeo CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Yolanda Fay Tadeo pled no contest to one count of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) The trial court initially suspended imposition of sentence and granted probation. As part of the terms and conditions of probation, the trial court ordered defendant to pay a $219 laboratory analysis fee and a $643 drug program fee. (Id., §§ 11372.5, 11372.7.)

The trial court later revoked defendant's probation and sentenced her to a two-year state prison term. The court also imposed a $400 restitution fine and a $400 suspended parole revocation fine. (Pen. Code,^[1] §§ 1202.4, subd. (b), 1202.45.) These fines are reflected in the abstract of judgment, but the earlier laboratory and drug program fees are not.

On appeal, defendant claims the laboratory and drug program fees imposed exceed the amount authorized by statute.^[2] We agree and shall modify the judgment to reflect the proper fees and penalty assessments.

First, the fees and penalty assessments ordered as conditions of defendant's probation survived the revocation of her probation, and must be reflected in the abstract of judgment. (See People v. Chambers (1998) 65 Cal.App.4th 819, 822-823; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.)

Second, the laboratory and drug program fees are each comprised of five separate elements: (1) a base fee (Health & Saf. Code, §§ 11372.5, subd. (a) [$50 per offense], 11372.7, subd. (a) [$150 per offense]); (2) a state penalty assessment in the amount of $10 for each $10 of fine or fraction thereof (§ 1464, subd. (a)); (3) a county penalty assessment in the amount of $7 for each $10 of fine or fraction thereof (Gov. Code, § 76000, subd. (a)); (4) a 20 percent state surcharge on the base fine (§ 1465.7, subd. (a)); and (5) a state court facilities construction penalty in the amount of $5 for every $10 of fine or fraction thereof (Gov. Code, § 70372, subd. (a)).

In the instant case, the $219 laboratory fee imposed by the trial court exceeded the statutory maximum of $170, which is comprised of the following: the statutory criminal laboratory analysis fee of $50 (Health & Saf. Code, § 11372.5, subd. (a)), plus a state penalty assessment of $50 (§ 1464, subd. (a)), a county penalty assessment of $35 (Gov. Code, § 76000, subd. (a)), a 20 percent state surcharge of $10 (§ 1465.7, subd. (a)), and a $25 state court facilities construction fund penalty (Gov. Code, § 70372, subd. (a)).

Likewise, the $643 drug program fee imposed by the trial court exceeded the statutory maximum of $510, which is comprised of the following: the statutory drug program fee of $150 (Health & Saf. Code, § 11372.7, subd. (a)), plus a state penalty assessment of $150 (§ 1464, subd. (a)), a county penalty assessment of $105 (Gov. Code, § 76000, subd. (a)), a 20 percent state surcharge of $30 (§ 1465.7, subd. (a)), and a $75 state court facilities construction fund penalty (Gov. Code, § 70372, subd. (a)).

The People contend the trial court was justified in imposing the higher fees because the Mendocino County Board of Supervisors passed a resolution on June 3, 2003, pursuant to sections 1269b and 1463.28, increasing the base fine and bail amounts in Mendocino County by 25 percent.^[3] This contention is without merit.

Sections 1269b and 1463.28 pertain solely to bail amounts. Section 1269b pertains to various aspects of bail, including the establishment of a countywide bail schedule.^[4] (§ 1269b, subds. (b)-(f)). Section 1463.28, subdivision (a), provides, in pertinent part, as follows: â€