PEOPLE v. WOODS











Filed 12/23/10




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. VINCENT WOODS, Defendant and Appellant.

B223793 (Los Angeles County Super. Ct. No. TA109396)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh and Paul Bacigalupo, Judges. Affirmed in part; reversed in part with directions.
Randall Conner, 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, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.




I. INTRODUCTION

Defendant, Vincent Woods, appeals from his convictions for cocaine possession (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor marijuana possession. (Health & Saf. Code, § 11357, subd. (b).) In the published portion of this opinion, we address the issue of whether, when a defendant is placed on probation pursuant to Penal Code section 1210.1, subdivision (a) (Proposition 36 probation), the following may be stayed: a Government Code section 70373, subdivision (a) court facility assessment; a Penal Code section 1202.4, subdivision (b)(1) restitution fine; and a Penal Code section 1465.8, subdivision (a)(1) court security fee. We conclude they may not be stayed. In the unpublished portion of the opinion, we address other sentencing issues. We affirm the judgment in all other respects.

II. DISCUSSION

[The following portion of the opinion is not to be published. See post, at page 6 where publication is to resume.]

A. Factual and Sentencing Background

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 10 p.m. on November 13, 2009, Los Angeles Police Officers Eddie Roca and John Lukaszewski, were on patrol in an unmarked police car. Officers Roca and Lukaszewski, who were dressed in full police uniform, saw defendant sitting in a car. Defendant was sitting in the driver’s seat of his car on 109th Street near Central Avenue which was parked near a fire hydrant partially in the red zone close to the intersection. Officer Roca’s car was facing the opposite direction. Officer Roca stopped opposite defendant’s car. Officer Roca asked if everything was okay. Defendant claimed to have been waiting for a friend for about an hour. Defendant pointed down the street. Officer Roca became suspicious because the area where defendant was parked was known for narcotics sales.
Officer Roca got out of the police cruiser and walked towards defendant’s car. The driver’s window was open. Officer Roca smelled an odor of marijuana within a few feet from defendant’s car. There were no other people in the area. Officer Roca spoke to defendant. Thereafter, defendant was asked to step out of his car. Defendant gave permission to search his car. Officer Roca verified no one else was inside defendant’s car. Officer Roca removed a man’s dark sweater from the driver’s seat of defendant’s car. Officer Roca found a small plastic baggie containing an off-white rock resembling cocaine base in the pocket of the sweater. Officer Roca walked back to where defendant stood with Officer Lukaszewski. Officer Roca held the baggie in his hand. Defendant said: “That’s mine. I smoke it with weed.”
Defendant was arrested and searched. Defendant had 1.05 grams of marijuana in his pants pocket. The parties stipulated that the items recovered by Officer Roca were analyzed by a police department chemist. The first item was found to be 0.81 grams of cocaine base. The second item consisted of 1.05 grams of marijuana.
Defendant was found eligible for placement on probation pursuant to Penal Code section 1210.1. Defendant was given credit for two days served in the county jail. Defendant was to report to the community assessment service center and the probation department. In addition to other probation conditions, defendant was ordered to pay: a $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee, and “penalty assessments” totaling $85; a $200 drug program fee; a $200 Penal Code section 1202.4, subdivision (b)(1) restitution fine, which was stayed; a $200 Penal Code section 1202.44 probation revocation fine, which was stayed; a $30 Penal Code section 1465.8, subdivision (a)(1) court security fee, which was stayed; and a $30 “court construction fund assessment” which was also stayed.


B. Unpublished Discussion

We appointed counsel, Randall Conner, to represent defendant on appeal. After examination of the record, Mr. Conner filed an “Opening Brief” in which no issues were raised. Instead, Mr. Conner requested we independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. On September 2, 2010, we advised defendant that he had 30 days within which to personally submit any contentions or arguments he wishes us to consider. No response has been received.
On February 11, 2010, an in camera hearing was conducted by Judge Gary E. Daigh concerning defendant’s peace officer personnel records disclosure motion. On October 18, 2010, we assigned Judge Daigh to conduct record correction proceedings in camera pursuant to People v. Mooc (2001) 26 Cal.4th 1216, 1231, regarding peace officer personnel records not provided to the defense. We directed Judge Daigh to identify the missing peace officer records reviewed on February 11, 2010. Judge Daigh has identified the missing peace officer personnel records We have reviewed all of these documents and find Judge Daigh did not abuse his discretion in ruling as he did on February 11, 2010. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Samayoa (1997) 15 Cal.4th 795, 827.)
We asked the parties to brief certain issues concerning the Health and Safety Code sections 11372.5, subdivision (a) and 11372.7, subdivision (a) drug related fees. We address those issues now. To begin with, a single $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee was imposed. We presume that laboratory fee was orally imposed only as to count 1. Health and Safety Code section 11357, subdivision (b) marijuana possession is not subject to the laboratory fee. (Health & Saf. Code, § 11372.5, subd. (b).) We also presume the $85 in penalty assessments orally imposed are the Health and Safety Code section 11372.5, subdivision (a) laboratory fee consisting of the $50 Penal Code section 1464, subdivision (a)(1) and $35 Government Code section 76000, subdivision (a)(1) penalty assessments. In addition, a penalty assessment, surcharge and penalties should have been imposed on the $50 laboratory fee as follows: a $10 Government Code section 76000.5, subdivision (a)(1) penalty assessment; a $10 section 1465.7, subdivision (a) state surcharge; a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty; a $5 Government Code section 76104.6, subdivision (a)(1) deoxyribonucleic acid penalty; and a $5 Government Code section 76104.7, subdivision (a) deoxyribonucleic acid penalty. Thus, the total amount owed by defendant as a result of the imposition of the Health and Safety Code section 11372.5, subdivision (a) $50 laboratory fee is $130. (See People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530; People v. McCoy (2007) 156 Cal.App.4th 1246, 1254-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.)
Also, a $200 Health and Safety Code section 11372.7, subdivision (a) drug program fee was orally imposed. However, Health and Safety Code section 11372.7, subdivision (a) provides for a maximum $150 fee as to each conviction. In addition, the count 2 Health and Safety Code section 11357, subdivision (b) marijuana possession offense is not subject to the drug program fee. (Health & Saf. Code, §11372.7, subd. (e).) We may correct an unauthorized sentence at any time. (In re Sheena K. (2007) 40 Cal.4th 875, 886; People v. Smith (2001) 24 Cal.4th 849, 854.) We therefore modify that drug program fee to the maximum statutory $150 provision. However, additional fees, penalties and assessments should have also been imposed as to the drug program fee as follows: a $150 Penal Code Section 1464, subdivision (a)(1) penalty assessment; a $105 Government Code section 76000, subdivision (a)(1) penalty assessment; a $30 Penal Code section 1465.7, subdivision (a) state surcharge; a $45 Government Code section 70372, subdivision (a)(1) state court construction penalty; a $30 Government Code section 76000.5, subdivision (a)(1) penalty assessment; a $15 Government Code section 76104.6, subdivision (a)(1) deoxyribonucleic acid penalty; and a $15 Government Code section 76104.7, subdivision (a) deoxyribonucleic acid penalty. Thus, the total amount owed on count 1 is the maximum $150 drug program fee plus the $390 in penalty assessments, the surcharge and the penalties for a total of $540. (People v. Castellanos, supra, 175 Cal.App.4th at p. 1528-1530; People v. McCoy, supra, 156 Cal.App.4th at p. 1254-1257; People v. Taylor, supra, 118 Cal.App.4th at pp. 456-457.)
Also, a $30 Penal Code section 1465.8, subdivision (a)(1) court security fee was imposed and stayed. We will address the stayed aspect of the surcharge in the published portion of this opinion. A Penal Code section 1465.8, subdivision (a)(1) court security fee is by its own terms imposed on every criminal conviction. As a result, a court security fee should have been imposed as to both counts.
Moreover, a single “$30 court construction fund assessment” was imposed and stayed. A $30 Government Code section 70373, subdivision (a)(1) court facilities assessment is applicable as to each conviction. (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 3-4.) The $30 Government Code section 70373, subdivision (a)(1) court facilities assessment is to be imposed on each count.

C. Published Discussion

[The balance of the opinion is to be published.]

As noted, defendant was placed on probation pursuant to Penal Code section 1210.1, subdivision (a). When placing defendant on Penal Code section 1210.1, subdivision (a) probation, the judge who tried the case, the Honorable Paul A. Bacigalupo, imposed and then stayed: the Government Code section 70373, subdivision (a)(1) court facilities assessment; the $200 Penal Code section 1202.4, subdivision (b)(1) restitution fine; and the $30 Penal Code section 1465.8, subdivision (a)(1) court security fee. We conclude no authority exists to stay the facilities assessment, restitution fine and security fee under these circumstances.
The facilities assessment, restitution fine and court security fee are mandatory. Government Code section 70373, subdivision (a)(1), which provides for imposition of the court facilities assessment, states in part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense. . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony.” Penal Code section 1202.4, subdivision (b)(1), which provides for a restitution fine states: “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony. . . .” Penal Code section 1465.8 subdivision (a)(1), which provides for the court security fee, states, “To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.” As noted, the facilities assessment, restitution fine and court security fee are mandatory. (People v. Hanson (2000) 23 Cal.4th 355, 362 [“a restitution fine is mandatory even in the absence of a crime victim. . . .”]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [“imposition of an assessment under Government Code section 70373(a)(1) is required”]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 [“section 1465.8 ‘unambiguously requires a fee to be imposed for each of defendant’s convictions”’].)
There is no statutory authority which allows the facilities assessment, restitution fine and court security fee to be stayed. In People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1589, we confronted a similar issue where the trial court stayed a Health and Safety Code section 11372.4, subdivision (a) five-year drug enhancement. We set aside the order staying the enhancement and reasoned as follows: “In passing sentence, the court has a duty to determine and impose the punishment prescribed by law. (Pen. Code § 12; People v. Floyd P. (1988) 198 Cal.App.3d 608, 612; People v. Santana [(1986)] 182 Cal.App.3d 185,] 191-192.) When an illegal sentence ‘is discovered while defendant’s appeal is pending, the appellate court should affirm the conviction and remand the case for a proper sentence. [Citation.]’ (People v. Massengale (1970) 10 Cal.App.3d 689, 693; People v. Hickey (1980) 109 Cal.App.3d 426, 436; People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) In Serrato, the Supreme Court noted, ‘Such [an illegal] sentence . . . is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. [Fn. omitted.]’ (People v. Serrato, supra, 9 Cal.3d at p. 764.) Since the order staying the enhancement was in excess of the court’s jurisdiction, it must be set aside.” (See People v. Harvey (1991) 233 Cal.App.3d 1206, 1231 [trial court had no authority to stay imposition of an enhancement].) Our analysis in Cattaneo is controlling. There is no authority to “stay” the facilities assessment, restitution fine and court security fee as occurred here. Therefore, the stay order is reversed.
As to the facilities assessment and court security fee, upon remittitur issuance, they are to be imposed. A sentencing court has no discretion to decline to impose them under the circumstances present in this case. As to the restitution fine, the situation is slightly different. As noted, a sentencing court retains the authority to not impose the restitution fine if it finds compelling and extraordinary reasons for not doing so. (Pen. Code, § 1202.4, subd. (b)(1); People v. Hanson, supra, 23 Cal.4th at p. 362.) Here, the restitution fine was imposed and stayed. No findings were made that compelling and extraordinary reasons existed to not impose the restitution fine on defendant. Nor did Judge Bacigalupo purport to act as permitted by Penal Code section 1202.4, subdivision (b)(1) to not impose the restitution fine because of compelling and extraordinary circumstances. He actually imposed the restitution fine, albeit he stayed it. On the other hand, for whatever reason, Judge Bacigalupo did not intend that defendant pay the restitution fine. When an unlawful sentencing decision is made (which in this case is the stay order of the restitution fine), the proper course of action is to allow the trial court to lawfully exercise its discretion and impose a lawful sentence. (People v. Williams (1998) 17 Cal.4th 148, 164 [after the trial court abused its discretion in striking prior conviction allegations, proper course of action was to remand to permit the proper exercise of sentencing authority]; People v. Castellanos, supra, 175 Cal.App.4th at pp. 1531-1533 [remand to permit the trial court to make an ability to pay determination when additional penalty assessments, a surcharge and penalties were added to Pen. Code, § 1202.5, subd. (a) fine]; People v. Bradley (1998) 64 Cal.App.4th 386, 400 [when the trial court improperly stayed a prior prison term enhancement, the cause was remanded to allow the trial court to exercise its discretion to strike to impose the additional term].) If the restitution fine is not imposed, the probation restitution fine is likewise not to be imposed. (Pen. Code, § 1202.44; see People v. Tillman (2000) 22 Cal.4th 300, 303.)
Thus, upon remittitur issuance, Judge Bacigalupo is to determine if compelling and extraordinary reasons exist to not impose the restitution fine. If he determines compelling and extraordinary reasons are not present, then the restitution fine is to be imposed. In addition, the probation revocation restitution fine must be imposed and stayed as expressly statutorily required by Penal Code section 1202.44. If compelling and extraordinary reasons fine are present, the restitution fine is not to be imposed. We express no opinion as to whether compelling and extraordinary reasons are present. We leave this issue in Judge Bacigalupo’s good hands.

III. DISPOSITION

The judgment is modified as noted and the following is to occur once the remittitur issues. First, the additional penalty assessments, surcharges, and penalties related to the $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee and Health & Safety Code section 11372.7, subdivision (a) drug program fee are imposed as discussed in the unpublished portion of this opinion. Second, the $200 Health and Safety Code section 11372.7, subdivision (a) drug program is reduced to $150 as discussed in the unpublished portion of this opinion. Third, a total of two $30 Penal Code section 1465.8, subdivision (a)(1) court security fees and two $30 Government Code section 70373, subdivision (a)(1) assessments are imposed and none are to be stayed. Fourth, as to the Penal Code section 1202.4, subdivision (b)(1) restitution fine, the stay order is reversed. Judge Bacigalupo is to determine whether there are compelling and extraordinary reasons to not impose the restitution fine. If compelling and extraordinary reasons exist not to impose the $200 restitution fine, it is not to be imposed nor is the Penal Code section 1202.44 probation restitution fine. If compelling and extraordinary reasons do not exist, the $200 restitution fine is reinstated and is not to be stayed. In addition, the $200 Penal Code section 1202.44 probation restitution fine is to be imposed and stayed. The judgment is affirmed in all other respects.

CERTIFIED FOR PARTIAL PUBLICATION


TURNER, P. J.

We concur:


ARMSTRONG, J.


MOSK, J.




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