Filed 5/3/17 P. v. Toles CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

DARREN TOLES,

Defendant and Appellant.

F072869

(Super. Ct. No. BF159318A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. J. Eric Bradshaw, Judge.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Darren Toles stands convicted of transportation of methamphetamine for sale, possession of methamphetamine for sale, possession of drug paraphernalia, and possession of heroin. It also was found true that he had a prior strike conviction and had served two prior prison terms. Toles contends the trial court failed at sentencing to specify the statutory bases of the Health and Safety Code penalty assessments. He contends the case must be remanded for resentencing. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Bakersfield Police Officer Renee Garcia stopped Toles on February 16, 2015. Garcia activated the patrol lights and pursued Toles’s vehicle for about 50 yards before he stopped. After Toles stopped, Garcia activated the patrol car’s spotlight and observed Toles “doing quick movements” and “reach back” to “the rear seat.” In searching Toles’s vehicle, Garcia found a small tin can containing several bindles of methamphetamine and heroin, a baggie containing heroin, a digital scale, and a BB gun. Garcia arrested Toles.
A jury convicted Toles of transportation of methamphetamine for sale, a violation of Health and Safety Code section 11379, subdivision (a); possession of methamphetamine for sale, a violation of section 11378; misdemeanor possession of drug paraphernalia, a violation of section 11364; and misdemeanor possession of heroin, a violation of section 11350. In a court trial, it was found true that Toles had a prior strike conviction pursuant to Penal Code section 667, subdivision (e), and had served two prior prison terms pursuant to Penal Code section 667.5, subdivision (b).
Toles was sentenced on December 8, 2015. The trial court and counsel discussed the probation report and sentencing recommendation in that report. The trial court stated that it had “carefully reviewed the recommendation and the sentencing report.” The trial court proceeded to deny probation and sentence Toles to a total term of imprisonment of eight years.
The trial court stated that Toles would be required to register pursuant to section 11590. The trial court then proceeded to state:
“Defendant’s ordered to pay a fee of $50—actually is ordered to pay the fines, fees, and assessments outlined in detail, … in accordance with the sentence recommendation—sentencing recommendation in writing, and I will incorporate those fines, fees, and assessments, including restitution fines, without further reading, provided counsel waives further reading.”
Defense counsel waived further reading. At the conclusion of the pronouncement of sentence, the trial court asked, “Is there anything else on this one,” to which defense counsel replied, “I don’t believe so.”
DISCUSSION
Toles contends the trial court erred by failing to provide details, at the time of sentencing, for the penalty assessments and fees imposed pursuant to sections 11372.5 and 11372.7. He contends the case must be remanded. He is mistaken.
Oral Pronouncement Incorporated Written Statement
The probation report, which defense counsel and the trial court had reviewed prior to the sentencing hearing, set forth specific details on the fees and penalty assessments. With respect to these fees and penalty assessments, the probation report stated:
“It is further recommended that the defendant pay a fee of $50.00 pursuant to Section 11372.5 of the Health and Safety Code, plus a $155.00 penalty assessment, and that the defendant pay a fee of $100.00 pursuant to Section 11372.7 of the Health and Safety Code, plus a $310.00 penalty assessment, plus a $30.00 fee pursuant to Government Code section 70373, plus a $40.00 fee pursuant to Penal Code section 1465.8. *
“*(As to the penalty assessment of $155.00, that consists of individual assessments in the amount of $50.00 (Penal Code Section 1464[, subdivision ](a)), $35.00 (Government Code Section 76000[, subdivision ](a)), $5.00 (Government Code Section 76104.6), $15.00 (Government Code Section 76104.7), $25.00 (Government Code Section 70372[, subdivision ](a)), $10.00 (Government Code Section 76000.5), and $20.00 (Penal Code Section 1465.7), and that the $310.00 assessment consists of double each of these amounts.)”
The failure to specify the amount and statutory basis for each fine, fee, and penalty assessment is legal error that can be raised on appeal regardless of whether an objection was made in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852.) A trial court can satisfy this legal requirement by reciting on the record the amounts and statutory bases for any fines and penalty assessments. (People v. Hamed (2013) 221 Cal.App.4th 928, 939.)
Alternatively, where the amounts and statutory bases for the fines and penalty assessments have been set forth in a probation report, a sentencing memorandum, or some other writing, the trial court can refer in its oral pronouncement to the fines, fees, and penalty assessments as set forth in the probation report, sentencing memorandum, or writing. (People v. Voit (2011) 200 Cal.App.4th 1353, 1373; People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
Here, the trial court specifically referenced the fines, fees, and assessments set forth in the sentencing recommendation and specifically incorporated those amounts in its oral pronouncement of sentence. The details were set forth in the probation report’s sentencing recommendation. This reference to the sentencing recommendation during the oral pronouncement of sentence satisfies the legal requirements. (People v. Hamed, supra, 221 Cal.App.4th at pp. 939-940.)
Correction to Abstract of Judgment
The abstract of judgment must set forth all the fines, fees, and assessments. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Toles and the People agree that the abstract fails to comport with this requirement and must be amended to set forth in detail all the fines, fees, and assessments and their respective amounts.
The original abstract of judgment was filed December 11, 2015, and did not set forth all the fines, fees, and assessments. On March 23, 2016, appellate counsel sent a letter to the trial court, asking that the abstract of judgment be corrected. An amended abstract of judgment was filed May 31, 2016. The amended abstract of judgment also fails to set forth in detail the fines, fees, and assessments. By letter dated August 22, 2016, appellate counsel notified the court that Toles agreed with the People’s position that the amended abstract of judgment needed correction.
The amended abstract of judgment must be corrected to set forth in detail all fines, fees, and penalty assessments. (People v. High, supra, 119 Cal.App.4th at p. 1200.) In addition, the People note that although the sum of the penalty assessments is correct, the calculations of the Government Code section 76104.7 and Penal Code section 1465.7 penalty assessments set forth in the probation report are incorrect.
The probation report states the Government Code section 76104.7 assessment is $15 of the penalty assessment under section 11372.5 and double that amount, or $30, of the penalty assessment under section 11372.7. Government Code section 76104.7 provides for a 40 percent penalty assessment on top of the base fine. The base fine for section 11372.5 is $50 and 40 percent of that amount is $20; the base fine for section 11372.7 is $100 and 40 percent of the amount is $40.
As to the Penal Code section 1465.7 assessment, the probation report lists these amounts as $20 and $40. This code section, however, provides for a penalty assessment of 20 percent of the base fine. Therefore, the correct calculations are $10 for the section 11372.5 assessment and $20 for the section 11372.7 assessment.
As the People point out, the total amount of the penalty assessments set forth in the probation report are correct, even though some of the amounts were incorrectly stated. We will direct that a corrected abstract be prepared in conformance with this opinion.
DISPOSITION
The judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment setting forth in detail each fine, fee, and penalty assessment, including accurately stating the amount of the Government Code section 76104.7 and Penal Code section 1465.7 penalty assessments, and to disseminate the same to the appropriate authorities.