Opinion
C066801
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. BRUCE RUSSELL GUIVER, Defendant and Appellant.
pinion on Rehearing
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CM033458)
Opinion on Rehearing
Defendant Bruce Russell Guiver entered a no contest plea to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in exchange for dismissal of the remaining count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and prior drug conviction allegation (Health & Saf. Code, § 11370.2, subd. (c)).
Sentenced to state prison, defendant appeals. He contends (1) the $40 court security fee imposed under Penal Code section 1465.8 must be reduced to $30, the amount in effect at the time he was convicted, and (2) the record fails to reflect that the prior drug conviction allegation was dismissed. We order the abstract of judgment to be modified to correct the court security fee and to reflect the trial court's dismissal of the prior drug conviction allegation.
BACKGROUND
Defendant committed his offense on October 12, 2009, pled no contest on September 29, 2010, and was sentenced to state prison on November 24, 2010.
During the sentencing hearing, the trial court imposed various fines and fees, including a $40 court security fee pursuant to Penal Code section 1465.8.
DISCUSSION
I
Defendant contends the trial court erroneously imposed a $40 court security fee even though at the time of his no contest plea Penal Code section 1465.8, subdivision (a)(1), provided that "a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense . . . ." (Stats. 2009, ch. 342, § 5; see also Stats. 2010, ch. 720, § 33 [increasing the fee to $40 on Oct. 19, 2010].)
In People v. Davis (2010) 185 Cal.App.4th 998 (Davis), the Court of Appeal for the Second District held that an increase in the court facilities fee imposed by Government Code section 70373 did not apply to a defendant who entered a no contest plea before, but was sentenced after, the effective date of the statutory increase in the fee. (Davis at p. 1000.) The defendant in Davis was "convicted" within the meaning of Government Code section 70373 upon entry of his no contest plea, and the subsequent amendment of the statute prior to his sentencing did not apply to increase his fee. (Davis at p. 1001.) Government Code section 70373 and Penal Code section 1465.8 use nearly identical language in describing their applicable fees. (See Davis at p. 1000; People v. Fleury (2010) 182 Cal.App.4th 1486, 1490-1491; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.) The reasoning of Davis applies here to exclude defendant from the increase in the court security fee that occurred subsequent to his conviction.
After conceding the inapplicability of the increased fee in the respondent's brief, the Attorney General now argues that the $40 fee applies. In so arguing, respondent asserts Davis was wrongly decided. However, Davis followed "settled law for over 250 years that a person stands 'convicted' upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt." (Davis, supra, 185 Cal.App.4th at p. 1001.) We agree with Davis. Accordingly, we order the court facilities fee reduced to $30 to reflect the fee amount at the time defendant entered his no contest plea.
II
Defendant entered his negotiated plea in exchange for dismissal of the remaining count and the prior drug conviction allegation. Although the trial court orally dismissed the remaining count, the trial court did not orally dismiss the prior drug conviction allegation. The minutes reflect the dismissal of the remaining count but do not refer to the prior drug conviction allegation. Defendant is entitled to the benefit of his bargain. We order the judgment to be corrected accordingly.
DISPOSITION
The judgment is modified to (1) reduce the court security fee imposed under Penal Code section 1465.8 to $30, and (2) to dismiss the prior drug conviction allegation (Health & Saf. Code, § 11370.2). The trial court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
Defendant appears to have received all the conduct credit due under the recent amendments to Penal Code sections 2933 and 4019.
HOCH, J.
We concur:
RAYE, P. J.
BUTZ , J.