Opinion
A145784
09-24-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN URIBE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51427012)
Appellant Christian Uribe appeals from a judgment of conviction entered after a jury found him guilty of transportation of cocaine (Health & Saf. Code, § 11352, subd. (a) (Count 1)) and possession of cocaine for sale (Health & Saf. Code, § 11351 (Count Two)). The trial court found the allegations that appellant had suffered a prior narcotics conviction and related enhancements true (Health & Saf. Code, § 11370.2, subd. (a); Pen. Code, §§ 1203.07, subd. (a)(11), 667, subds. (b)-(i), 1170.12). The trial court sentenced appellant to the mid-term of four years in state prison for the transportation conviction (Count One), and then imposed a concurrent mid-term of three years on the possession for sale conviction (Count Two), stayed pursuant to Penal Code section 654; the trial court struck appellant's prior strike conviction under Penal Code section 1385. Although not orally imposed at the sentencing hearing, the court minutes and abstract of judgment include various fines, fees, and penalties.
On appeal, Uribe contends that the trial court abused its discretion in failing to determine the reliability of a confidential informant who provided information to police and, thus, the trial court erred in denying his motion to suppress evidence from the search and seizure that flowed from this information. Uribe also argues that his conviction for possession for sale of cocaine must be reversed because it is a lesser included offense of his conviction for transportation of cocaine. Uribe further contends and the People concede, the matter must be remanded to the trial court to specify the nature and amount of fees imposed at sentencing. Finally, both parties are in agreement, that the abstract of judgment erroneously states that Uribe was convicted in Count Two of violating Penal Code section 288, subdivision (a), instead of his actual Count Two conviction of possession for sale in violation of Health and Safety Code section 11351. We affirm the judgment, but remand for resentencing and for the trial court to conform the abstract of judgment to the sentence actually imposed.
I. BACKGROUND
In November 2014, Special Agent Andrew LeMay of the California Department of Justice Bureau of Firearms, supervised a task force with the Contra Costa County Anti-Violence Support Effort (CASE). On November 14, at 10:20 p.m., in a residential area of Walnut Creek, Andre LeMay and CASE Agents Dale Hadley and Ryan Ruff were together in a police car that parked immediately behind a 2003 silver Lexus. LeMay approached the Lexus on the passenger side, yelling "Police. Show me your hands." At the same time, Hadley approached on the driver side, also yelling " 'Let me see your hands' " several times. At trial, LeMay identified the passenger as appellant and the driver as co-defendant Jeanette Medrano.
LeMay could see the passenger "hunched down" and apparently holding something in his hands as he turned toward Medrano. LeMay did not see any exchange of objects, but it "appeared that [appellant] was handing something off to the driver." Concerned that appellant or Medrano might be armed, LeMay ordered both of them to get out of the car. Appellant, who had a red fanny pack on his lap, did not comply, so LeMay grabbed his arm and pulled him out of the car at gun point, telling him several times to get on the ground.
Meanwhile, Hadley approached Medrano, telling her, " 'Let me see your hands' " or " 'Show me your hands' " several times. Medrano did not show her hands, which appeared to be under her sweatshirt. So Hadley grabbed her hands and pinned them against her stomach, asking, "what do you have?"; Medrano answered, " 'coke.' " Hadley reached inside Medrano's sweatshirt and saw a plastic bag, containing what he believed to be cocaine. Agent Ruff searched the red bag, in which he found a pill bottle. It contained pills and a couple of plastic baggies. One baggie held six pills, and the other contained an off-white powder. Monica Siegrist, a criminalist with Contra Costa County, testified as an expert in the identification of cocaine. Siegrist tested the off-white chunky substance as well as the off-white powder found in the baggies, but did not test the pills. The chunky substance found in the baggie taken from Medrano was just under 250 grams of cocaine. The powder from the baggie taken out of the red fanny pack consisted of 1.312 grams of cocaine.
Detective Sam Vesser testified as an expert in the possession for sale of cocaine. Vesser was at the scene of the vehicle stop when appellant and Medrano were detained. Vesser identified vehicle registration documents that showed the Lexus was registered to appellant and that both appellant and Medrano lived in Salinas. He testified that in Walnut Creek, the street value of 250 grams of cocaine would be around $10,000, and that if the cocaine were "cut" or diluted, the value could easily be doubled. In Vesser's opinion, if officers identifying themselves as police approached a couple in a car, and the male seemed to be passing something to the woman, who then hid cocaine under her sweatshirt, and the male had just over a gram of cocaine in a separate package, both parties possessed the cocaine for sale. Given those facts, he assumed that both appellant and Medrano were trafficking in larger quantities of cocaine.
Vesser did not dust the large bag of cocaine for fingerprints. He acknowledged that no weapons, scales, pay-owe sheets, cutting agents, or smaller baggies—all customary indications of drug sales—were found in the Lexus. The police searched appellant's cell phone, as well as another one found in the car; neither phone contained any incriminating evidence. Vesser testified the Salinas area is "known for cocaine trafficking."
Appellant presented no witnesses in his defense. Medrano's sister testified that Medrano was a high school student who lived with her in Prunedale, that Medrano used Uribe's address so she could attend school in Salinas, and that Medrano held two jobs and was mature for her age.
II. DISCUSION
A. The Trial Court Did Not Err in Failing to Disclose the Identity of the Confidential Informant and in Denying the Motion to Suppress
Appellant's principal claim of error is that the reliability of a confidential informant was not established in open court and consequently the evidence obtained from the warrantless search and seizure based on that informant's information should have been suppressed for lack of probable cause.
1. Background
Before trial, appellant moved to suppress all evidence arising from his warrantless search and arrest. (Pen. Code, § 1538.5.) At the suppression hearing, appellant also brought a motion to disclose the confidential informant's identity.
Officer Vesser, testified that on November 14, 2014, at around 1:20 p.m., he received a tip from an informant providing him with information about an older, silver, four-door Lexus. The informant told Vesser that the Lexus would be in the area of Sierra Drive and Sharene Lane in Walnut Creek at about 11:00 p.m., and that a large, saleable quantity of cocaine would be in the car.
The informant also told Vesser that an individual named "Christian" would be arriving in the silver Lexus and would be coming in it. The informant provided the following physical description of Christian: "Hispanic male, early twenties, shaved hair, shaved black hair, average height and build." After receiving this information, Vesser conducted a briefing with CASE task force officers Lemay and Hadley. Vesser told Lemay and Hadley about the silver Lexus, as well as the area it was supposed to arrive at, the time it was supposed to arrive in that area, and that an individual named Christian would be coming in it.
Vesser testified that he and the other task force members began surveillance in the subject area of Walnut Creek at about 10:00 p.m. on November 14, 2014. At this point in the hearing the prosecutor stated that the remaining questions he had for Officer Vesser called for privileged information, and he requested an in camera hearing to elicit the answers.
The court then conducted an in camera hearing, and at the conclusion of the hearing the court stated on the record: "I have conducted the in camera. I am satisfied that the privilege that was claimed is well founded. And there is no exculpatory information and nothing disclosable. And I'll find, based on the—well, we can go forward at this point then."
The trial court ordered the transcript of the in camera hearing sealed. Pursuant to California Rules of Court, rule 8.45(d)(2)-(3), we have reviewed that transcript.
Defense counsel contended that because the police detention of appellant was premised on a tip from a confidential informant, the reliability of that informant was key to determining the constitutionality of the detention, and the defense was therefore entitled to know the identity of the informant and any law enforcement information about him or her: "MR. MILLER [Counsel for Appellant]: I believe that when it comes to the reliability of an informant that the defense should be able to have access at least to rap sheet information, potential moral turpitude information, and to conduct its own investigation. I'm sure the Court did a thorough voir dire of this witness, but there may be issues that we would explore with our own investigation that the Court would not be able to, at least in this short period of time. [¶] So I would request disclosure of that information so we could conduct that investigation."
The trial court denied the disclosure request, explaining as follows: "As I said before, I think the privilege that was claimed is well taken and there's provisions for that information to remain confidential under limited circumstances. I think those circumstances are met in this case. And I think disclosure of the information that you are requesting would be inappropriate at this juncture, so I'm not going to release that information. [¶] I would note that there is no exculpatory information that was provided during the hearing. And in addition to the prosecutor's questions I added some of my own information that I thought was relevant to the analysis."
After appellant's counsel had completed his cross-examination, the court stated: "I appreciate that this is incredibly frustrating, it always is in this situation, but I think disclosing that information potentially—I think the information is validly within the privilege, given the information that I received during the in camera. I know it's frustrating on your end."
During cross-examination by Medrano's counsel, Vesser testified that while the confidential informant had described the man who would be arriving with the drugs in the Lexus, the informant did not "describe a female arriving there," and did not specifically mention Medrano. When counsel asked Vesser whether the informant had mentioned anyone other than Christian, Vesser invoked "Evidence Code section 1040, 1042."
The trial court ruled that Officer Vesser could answer the foregoing question "yes or no," but that any other information "probably" fell "within the privilege." Vesser stated that the confidential informant had mentioned or described for him another individual, but when counsel asked, "not Ms. Medrano?" The court ruled: "I think that's clearly within the privilege, based on what I heard in camera." Vesser reiterated what the informant had told him about the Lexus, drugs, and Christian, and that the informant mentioned or described another person who would be with Christian, but Vesser maintained that he believed whether the informant had described a male or female was privileged information.
When Medrano's counsel expressed concern that information about an additional individual had not been disclosed at the preliminary hearing, the trial court held another in camera hearing. At the conclusion of this in camera hearing the court ruled: "I have conducted an additional in camera, which I have sealed. I'm satisfied—and I explored the area with regard to any information about other individuals. I'm satisfied that there is nothing exculpatory in any way. And so that information will remain privileged."
After counsel for Medrano suggested that the Vesser could be "fudging" and that the description of second person could have been exculpatory as to co-defendant Medrano, the court stated: "[A]gain, I'll say I—I know it's frustrating, because you're working in a vacuum here and sort of reaching there, without having the information to form questions. [¶] I can tell you, based on the in camera and the information that I received in camera, there's not a change or a fudging, in my opinion. And I don't know what was asked at the prelim along these lines, but there was, I mean, absolutely nothing exculpatory about the information that was provided to me in camera. Not even arguably, so . . . ."
Agent Hadley testified that at the CASE briefing on November 14, 2014, Officer Vesser told him about an older model, silver four-door Lexus that was going to be in Walnut Creek that night at 11:00 p.m., in the area of Sierra and Sharene. Vesser told Hadley that Christian would be in the Lexus, and Vesser described Christian as an Hispanic male adult. Lemay testified that at this briefing Vesser described Christian as an Hispanic male adult of average height, medium build, and in his mid-twenties. Vesser stated that there would be a large quantity of cocaine in the Lexus.
At the conclusion of the suppression hearing, the trial court denied the suppression motion, ruling that the officers had conducted a constitutional detention: "[T]he standard is a reasonable suspicion that criminal activity is taking place. The officers . . . at the briefing are given a description of a car, a particular time and place, which is probably more important in this scenario. And they see a car that matches the description at the time and approximate location that they have been given. [¶] So I think finding a matching car is sufficient to then detain, stop the car, detain the occupants, and as I think one of you pointed out, this happened very quickly. They are at the car door, and they can corroborate that the description of the individual that they had been given matches one of the individuals in the car. [¶] So with the car description, the time and the location, and then very quickly after the stop, corroborating the description of the, one of the [] individuals, I think that's sufficient for purposes of a reasonable suspicion analysis. [¶] So I think that the stop was good, and I will deny the 1538.5."
2. Standard of Review and Applicable Law
"The applicable standards under which we review a trial court's order refusing to suppress evidence are well established. In reviewing the denial of a suppression motion, we consider the record in the light most favorable to the disposition and defer to the court's factual findings if supported by substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 979 (Tully).) Any conflicts in the evidence are resolved in favor of the court's order. (People v. Limon (1993) 17 Cal.App.4th 524, 529.) The court's ruling on whether the relevant law was violated is a mixed question of law and fact subject to de novo review. (People v. Hoyos (2007) 41 Cal.4th 872, 891, overruled on another ground as stated in People v. McKinnon (2011) 52 Cal.4th 610, 637-643.) Thus, we exercise independent judgment in determining the legality of a search and seizure. (Tully, supra, 54 Cal.4th at p. 979.)" (People v. Mathews (2018) 21 Cal.App.5th 130, 137.)
The standard of review for appellant's challenge to the trial court's denial of his motion for disclosure of the identity of a confidential informant appears to be unsettled. "The standard of review applicable to the [denial of a motion for disclosure of an informant's identity] is not settled. ([Cf.,] e.g., People v. Otte (1989) 214 Cal.App.3d 1522, 1535-1536 [suggesting review de novo] with People v. Alderrou (1987) 191 Cal.App.3d 1074, 1078, 1080 [assuming review for abuse of discretion]; see People v. Louis (1986) 42 Cal.3d 969, 985-987 [dealing generally with standards of review].)" (People v. Gordon (1990) 50 Cal.3d 1223, 1245-1246; but see People v. Borunda (1974) 11 Cal.3d 523, 529 [holding issue one of law and subject to de novo review].) For purposes of our review of this challenge, we will assume that the more rigorous de novo standard of review applies because, as discussed below, the trial court's denial of appellant's motion for disclosure of the identity of the confidential informant was proper under any standard.
Evidence Code section 1041 provides generally that a public entity has the privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of law. (Evid. Code, § 1041, subd. (a).) The confidential informant privilege is necessary to promote the free flow of information to law enforcement. Anonymity provides protection to the informant and the public interest would suffer if an informant's identity always were discoverable. (People v. Hobbs (1994) 7 Cal.4th 948, 958.) Although retaining confidentiality promotes a strong public interest, fundamental fairness requires that the privilege be limited in its scope. " 'Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.' [Citation.]" (Id. at p. 959.)
When a party in a criminal proceeding demands disclosure of a confidential informant's identity on the ground that the informant is a material witness on the issue of guilt, the court must conduct a hearing at which all parties may present evidence on the issue of disclosure. (Evid. Code, § 1042, subd. (d).) An informant is a material witness if it appears, from the evidence presented that he or she could give evidence on the issue of guilt that might exonerate the defendant. (People v. Lawley (2002) 27 Cal.4th 102, 159.)
" 'If the informer is not a percipient witness to the events which are the basis of the arrest, it is highly unlikely that he can provide information relevant to the guilt or innocence of a charge or information which rises from the arrest. Thus, "when the informer is shown to have been neither a participant in nor a non-participant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility." ' [Citation.]" (In re Benny S. (1991) 230 Cal.App.3d 102, 108.)
The trial court has no authority to order disclosure of the informant's identity or dismiss the criminal proceedings unless it concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. (Evid. Code, § 1042, subd. (d); see People v. Oppel (1990) 222 Cal.App.3d 1146, 1152; see People v. Lawley, supra, 27 Cal.4th at p. 159; Price v. Superior Court (1970) 1 Cal.3d 836, 842-843.) To establish a reasonable possibility that an informant could give exonerating testimony, the defendant must show something more than "sheer . . . speculation," but need not establish the informant would give favorable testimony. (People v. Tolliver (1975) 53 Cal.App.3d 1036, 1043-1044.)
3. Analysis
Evidence adduced at an in camera hearing can potentially establish there was no reasonable possibility an informant could give evidence on the issue of guilt which might result in a defendant's exoneration. In such a situation, the informant would not be a material witness under the test for materiality established by the California Supreme Court. (People v. Lanfrey (1988) 204 Cal.App.3d 491, 502-503.) "[A]n informant is not a 'material witness' nor does his [or her] nondisclosure deny the defendant a fair trial where the informant's testimony, although 'material' on the issue of guilt could only further implicate rather than exonerate the defendant." (People v. Alderrou, supra, 191 Cal.App.3d 1074, 1080-1081.)
After a careful review of the sealed transcripts of the in camera hearings, we conclude that the confidential informant was not a material witness since the informant only provided information further implicating appellant rather than exonerating him. The trial court apprised appellant of this fact, stating several times that there was absolutely nothing exculpatory in the information provided by the confidential informant. Thus, the trial court properly denied defendant's motion to disclose the identity of the confidential informant.
Parsley v. Superior Court (1973) 9 Cal.3d 934, upon which appellant relies does not compel a contrary conclusion. In Parsley the trial court did not hold an in camera proceeding in order to determine the reliability of the confidential informant and there was no indication that the court correctly exercised its discretion in determining the informant's reliability. Here, in contrast, the trial court conducted not one, but two in camera hearings. In addition, and even more to the point, the transcripts from those hearings reveal that the reliability of the confidential informant was established. Specifically, Vesser had directly supervised the informant in prior controlled buys that had resulted in the arrest and conviction of suspected drug sellers. The informant had also provided information to another officer on the drug task force, and this information led to arrests and convictions of suspected drug dealers. Additionally, the informant had provided information leading to arrests in various firearm cases. What's more, the informant had never provided the officers with any information that was later found to be false.
We conclude that the confidential informer was reliable and disclosure of the informer's identity was not required, as the informer was not a material witness on the issue of guilt. Accordingly, the trial court did not err in denying appellant's motion to suppress the evidence that was obtained from the warrantless search and seizure, which was based on the information provided by the confidential informant. B. Appellant's Possession of Cocaine is Not a Lesser Included Offense of His Transportation of Cocaine Offense
Appellant argues his conviction for possession of cocaine must be reversed because the crime of possession was necessarily included in his conviction for the crime of transportation of cocaine. California law generally permits multiple convictions, but not multiple punishments, for crimes arising out of the same act or course of conduct. But multiple convictions based on a necessarily included offense are not allowed when the statutory elements of the lesser included offense are part of a greater crime. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) In adopting the statutory elements rule of Reed, our Supreme Court rejected an analysis that turned on the nature of the accusatory pleading. " '[O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.' " (Id. at p. 1229.)
"Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed, supra, 38 Cal.4th at p. 1227.) When it comes to analysis of the statutory elements, our Supreme Court has already concluded that "possession of [drugs] is not a necessary element of the offense of transportation." (People v. Rogers (1971) 5 Cal.3d 129, 131 [defendant's acquittal on possession charge did not necessarily preclude his conviction for transportation of marijuana].) In Rogers the court explained: "Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may 'transport' marijuana or other drugs even though they are in the exclusive possession of another." [Fn. omitted.] (Id. at p. 134.) Accordingly, the application of the statutory elements test as articulated in Reed leads to the conclusion, under Rogers, that appellant's conviction of possession of cocaine is not a lesser included offense to his conviction for transportation of cocaine.
Appellant argues that a footnote in Rogers creates an exception to the rule that should control in this case. There the court observed that "[i]n cases where defendant's possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges." (People v. Rogers, supra, 5 Cal.3d at p. 134, fn. 3.) But more recent cases reject this argument. (See People v.. Watterson (1991) 234 Cal.App.3d 942, 947 [fn. 3 of Rogers disregarded because it was dicta]; People v. Thomas (1991) 231 Cal.App.3d 299, 305 ["By definition possession is not an essential element of transportation because the latter offense can be committed without also committing possession"].)
The Watterson court also noted that the cases cited in footnote 3 of Rogers were themselves inconsistent, and they in turn cited earlier cases that "[did] not unanimously support this conclusion." (People v. Watterson, supra, 234 Cal.App.3d at pp. 945-946.)
Moreover, in Reed our Supreme Court stated that "[t]he continuing validity of the rule stated in [the older cases mentioned in fn. 3 of Rogers] is dubious in light of more recent events" [citing Watterson and Thomas]. (People v. Reed, supra, 38 Cal.4th at p. 1228, fn. 2; see also People v. Murphy (2007) 154 Cal.App.4th 979, 983-984; People v. Thomas, supra, 231 Cal.App.3d at pp. 305-306 [rejecting defendant's attempt to expand the " 'necessarily included' definition to encompass cases in which the facts make it impossible to commit one offense without also committing another"].) Appellant was properly convicted of both possession and transportation of cocaine, because the former offense is not necessarily included in the latter under the statutory elements test articulated in Reed. (People v. Reed, supra, 38 Cal.4th at pp. 1228-1229 & fn. 2; People v. Rogers, supra, 5 Cal.3d at p. 134; People v. Watterson, supra, 234 Cal.App.3d at p. 947; People v. Thomas, supra, 231 Cal.App.3d at p. 305.) C. Remand is Required to Determine the Nature and Amount of Fees Imposed Against Appellant
The parties are in agreement that the abstract of judgment does not conform with the sentence the court verbally imposed at the sentencing hearing. We concur.
The probation report noted that, in light of appellant's prior conviction, appellant was ineligible for probation. The probation department recommended fees and fines, specifying statutes authorizing or requiring such amounts, including a laboratory fee ($190; see Health & Saf. Code, § 11372.5, subd. (a)), a restitution fine ($300, see Pen. Code, § 1202.4), a stayed parole revocation restitution fine in the same amount (see Pen. Code, § 1202.45), a drug program fee ($570, see Health & Saf. Code, § 11372.7), a conviction assessment ($30, see Gov. Code, § 70373), and a probation report fee ($176, Pen. Code, § 1203.1, subd. (b)).
At the sentencing hearing, the argument focused on the length of the prison term to be imposed. The issue of fees to be imposed against appellant was never addressed. The minute order and abstract of judgment, however, include the following fees and fines: a restitution fine ($300, see Pen. Code, § 1202.4), a stayed parole revocation restitution fine in the same amount (see Pen. Code, § 1202.45), a court operations assessment ($80 see Pen. Code, § 1465.8), a conviction assessment ($60, see Gov. Code, § 70373), and a probation report fee ($176, Pen. Code, § 1203.1, subd. (b)).
When sentencing co-defendant Medrano, however, the court imposed a laboratory fee ($200), a drug education fee ($600), and other unspecified court fees and assessments.
Preliminarily, we note that the probation officer's recommendations placed appellant, represented by counsel, on notice as to the relevant fees and fines. (See People v. Trujillo (2015) 60 Cal.4th 850, 858-859 [claim of failure of ability to pay deemed forfeited].) But because the trial court never imposed any fees or fines in its oral pronouncement of judgment, there was no reason for appellant to interpose any objection thereto, therefore he has not forfeited his claim on appeal.
People v. Mesa (1975) 14 Cal.3d 466, applies the general rule that the trial court must orally pronounce sentence—there, on two prior convictions that were admitted and reflected by the abstract, but were not mentioned at sentencing. (Id. at pp. 470-472.) Here, the fees were reflected in the abstract and the sentencing minutes, but were never mentioned at the sentencing hearing. This error resulted in an unauthorized sentence subject to correction at any time. (See People v. Smith (2001) 24 Cal.4th 849, 851-854.) Therefore, in light of the trial court's failure to orally impose them, the fines and assessments set forth in the abstract must be stricken and the matter must be remanded for an additional sentencing hearing, at which the nature and amount of fees to be imposed against appellant shall be verbally stated on the record. D. The Abstract of Judgment Must be Modified to Reflect Appellant's Actual Convictions
Finally, we agree with the parties that the abstract of judgment must be modified to remove the erroneous reference to a Penal Code section 288, subdivision (a) conviction (lewd act on child under age 14 committed in 1999), and replaced with appellant's Health and Safety Code section 11351 conviction (possession of cocaine).
We note that appellant was just eight years old in 1999.
III. DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions to verbally state on the record the nature and amount of all fines, fees, penalties, and assessments imposed against appellant. The court is directed to conform the abstract of judgment to include any such fines, fees, penalties, and assessments. Further, the court is directed to correct the abstract of judgment as follows: 1) delete the erroneously listed Penal Code section 288, subdivision (a) conviction; and 2) in its place, add appellant's Health and Safety Code section 11351 conviction. The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SMITH, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------