Opinion
F061412
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. HASSEN GAZALY, Defendant and Appellant.
Michael E. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. VCF229480)
OPINION
THE COURT
Before Levy, Acting P.J., Detjen, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
Michael E. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Hassen Gazaly was charged with four drug offenses after police found items associated with methamphetamine manufacturing in the garage where he was living. The trial court granted Gazaly's Penal Code section 995 motion and dismissed the count 1 violation of Health and Safety Code section 11379.6, subdivision (a) [manufacturing a controlled substance], as well as special allegations pursuant to section 11370.2, subdivision (b) and section 11379.7, subdivision (a) [controlled substance prior offense and child present]. Gazaly then pled no contest to possession of methamphetamine with the intent to manufacture methamphetamine (§ 11383.5, subd. (b)(1), count 2), possession of precursors and a reducing agent with the intent to manufacture methamphetamine (§ 11383.5, subd. (c)(1), count 3) and being under the influence of methamphetamine, a misdemeanor (§ 11550, subd. (a), count 4). The court imposed the indicated sentence of three years four months, the mitigated two-year term on count 2, one-third the four-year mid-term on count 3 (16-months) and no time on count 4, and several fines, fees and assessments.
Further statutory references are to the Health and Safety Code unless otherwise indicated.
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On appeal, Gazaly challenges the fines imposed in three regards. The People concede the errors. We will order the abstract of judgment be modified to correct the errors and affirm the modified judgment.
FACTS
On November 6, 2009, police officers served a search warrant on a house in Porterville. In the attached garage, where Gazaly was living, they found coffee filters, denatured alcohol and two packages of Sudafed. They also found receipts for three purchases of Sudafed on the same day from different stores, two white buckets with chemical odors consistent with the manufacturing of methamphetamine and numerous containers filled with liquid. The liquid in three of the containers contained methamphetamine. Gazaly was arrested at another residence and appeared to be under the influence of a controlled substance. He admitted he lived in the garage and told officers he had purchased the items for a friend who had a "meth lab." In return, he was to receive two grams of methamphetamine after manufacturing. He had recruited a friend to buy the Sudafed pills.
DISCUSSION
The Abstract of Judgment Must be Corrected
In sentencing Gazaly, the court imposed "the recommended fine amounts in paragraph number 10 totaling $1,575 on the basis stated in paragraph number 10 found on page 7 [of the report of the probation officer]." Gazaly contends there are three errors in the trial court's adoption of the recommendation: (1) the fines recommended do not add up to $1,575, (2) some of the fines are unauthorized and (3) the abstract of judgment fails to attribute the fines as required by People v. High (2004) 119 Cal.App.4th 1192, 1200. The People concede the errors and we agree.
First, the probation report's paragraph 10 lists 11 fees and penalty assessments that total $1,515 not $1,575 as recorded in the sentencing minute order and the abstract of judgment.
Second, the order included a $150 criminal laboratory analysis fee pursuant to section 11372.5. That section provides that every person who is convicted of a specified offense shall pay a $50 criminal laboratory analysis fee for each offense. Only one of Gazaly's convictions, the count 4 misdemeanor violation of section 11550, is specified in the statute. Thus, only one $50 criminal laboratory analysis fee was authorized and the $150 amount must be reduced to $50.
That $50 fee plus the properly imposed $300 drug program fee (§ 11372.7) equals a base fine of $350, rather than $450, which amount was used to calculate many of the subsequent fines (Pen. Code, § 1464, subd. (a) [there shall be levied on a state penalty in the amount of $10 for every $10, or part of $10 on every fine imposed].) Accordingly, the parties agree that those amounts should be modified as follows:
1. Because the actual base fine was $350, only a $350 state penalty assessment was authorized pursuant to Penal Code section 1464, subdivision (a) [$10 per $10].
2. The other fines repeat this mistake. Each is a multiple of the base fine so must be recalculated on a base fine of $350 rather than $450. The following four assessments, authorized by Government Code section 76000, must be modified as follows: the $202.50 Criminal Justice Facilities Construction Fund Penalty Assessment (Gov. Code, § 76101 [$4.50 per $10]) is reduced to $157.50, the $45 Courthouse Construction Fund Penalty Assessment (Gov. Code, § 76100 [$1 per $10) is reduced to $35, the $45 Dinuba Courthouse Construction Fund Penalty Assessment (Gov. Code, § 76100 [$1 per $10]) is reduced to $35, and the $22.50 Maddy Emergency Medical Services Fund Penalty Assessment (Gov. Code, § 76104 [$50 per $10]) is reduced to $17.50. The recalculated amounts total $245.
3. Similarly, the $135 State Court Construction Fund Penalty assessment (Gov. Code, § 70372 [$3 per $10] must be reduced to $105 and the $45 DNA Fingerprint Penalty Assessment (Gov. Code, § 76104.6 [$1 per $10]) must be reduced to $35 for a total of $140.
4. Gazaly concedes that one fine imposed is too low and one mandatory fine was not imposed. The State Surcharge (Pen. Code, § 1465.7 [20 percent of the Pen. Code § 1464, subd. (a) assessment] should be $70 rather than $30, and a $35 DNA Identification Fund Penalty Assessment (Gov. Code, § 76104.7 [$1 for every $10] must be added. Those modifications total $105.
The total of these amounts is $1,190 [$350 + $350 + $245 + $140 + $105 = $1,190].
The parties agree the $90 Maddy Emergency Services Fund Penalty Assessment (Gov. Code, § 76000.5) is without basis. The $7 for every $10 authorized by Government Code section 76000 was allocated to other assessments set forth under paragraph 2 above.
Finally, the parties agree the matter must be remanded to the trial court so that the abstract of judgment may be corrected to reflect all applicable fees and fines with specificity as required by People v. High, supra, 119 Cal.App.4th at p. 1200.
DISPOSITION
The judgment is modified: (1) to reduce the $150 Criminal Laboratory Analysis Fee to $50, (2) to reduce the state penalty assessment to $350, (3) to reduce the remaining penalties imposed as indicated in this opinion, (4) to recalculate the State Surcharge, (5) to impose a $35 DNA Identification Fund Penalty Assessment, and (6) to amend the abstract of judgment to reflect with specificity the fines, fees and penalty assessments imposed. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract reflecting the modifications ordered by this court and to forward a certified copy of the abstract of judgment to the Department of Corrections.