Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA058201, Brad Fox, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
James M. Crawford, 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, Steven D. Matthews and Paul M. Roadarmel, Jr., Supervising Deputy Attorneys General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Ayman Youssf Abdou, appeals after he was found in violation of his probation. We find: defendant received an incorrect award of presentence credits; the Penal Code section 1202.45 parole revocation restitution fine must be reversed; the trial court should have imposed a state court construction penalty (Gov. Code, § 70372, subd. (a)) on the criminal laboratory analysis fee; the state surcharge (Pen. Code, § 1465.7, subds. (a), (b)) should have been imposed on the laboratory analysis fee; and an additional court security fee (Pen. Code, § 1465.8, subd. (a)(1)) should have been imposed. We modify the judgment accordingly and direct the trial court to personally insure the abstract of judgment is corrected. We affirm the judgment in all other respects.
II. BACKGROUND
Defendant was arrested in the present case on April 11, 2004, and charged with: intent to manufacture methamphetamine or any of its analogs (former Health & Saf. Code, § 11383, subd. (c)(1), see now § 11383.5, subd. (b)(1)); two counts of receiving stolen property (Pen. Code, § 496, subd. (a)); and three counts of theft. (Pen. Code, § 484e, subd. (d).) On May 13, 2004, defendant, who was in custody, pled guilty to a count of intending to manufacture methamphetamine and another count of receiving stolen property. The remaining counts were dismissed. Defendant was sentenced concurrently to the low-term of two years for intent to manufacture methamphetamine and the mid-term of two years for receiving stolen property. Defendant was ordered to pay: a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) “plus penalty assessment”; a single $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)); and a $200 parole revocation restitution fine. (Pen. Code, § 1202.45.) No section 1202.4, subdivision (b)(1) restitution fine was orally imposed. Execution of sentence was suspended and defendant was placed on 3 years’ probation on the condition that he serve 270 days in the county jail. He received credit for 33 days in custody plus 16 days of conduct credit for a total presentence custody credit of 49 days.
On August 8, 2005, defendant was arrested for violating a restraining order, a misdemeanor. (Pen. Code, § 273.6, subd. (a).) On August 11, 2005, defendant’s probation in the present case was revoked. Defendant was remanded without bail. A pretrial hearing in the misdemeanor restraining order matter and a probation violation hearing in the present case was set for August 25, 2005.
On August 25, 2005, defendant pled no contest in the misdemeanor case. Imposition of sentence was suspended. Defendant was placed on 3 years’ probation on the condition that he serve 30 days in the county jail. He received credit for 19 days in custody plus 9 days of conduct credit for a total presentence custody credit of 28 days. He was ordered to: pay a $1,145 fine or serve an additional 10 days in the county jail; in the alternative, to perform 169 hours of community service; and to pay $312 to the City of Torrance. Also on August 25, 2005, defendant admitted he violated his probationary grant in the present case. Probation was revoked and reinstated on the original terms and conditions, except that defendant was ordered to serve an additional 28 days in the county jail, less credit for 28 days. Defendant was released from custody.
Defendant was arrested on February 28, 2007, for violating a protective order, a misdemeanor. Defendant appeared in court on the new case on March 5, 2007. Defendant was remanded without bail in the present case and $25,000 bail was set in the misdemeanor matter. A contested probation violation hearing was held on March 29, 2007. Defendant was found in violation of his probation in the present case (as well as in the misdemeanor restraining order matter). Defendant’s probation was again revoked. The trial court imposed the previously suspended two-year sentences. Defendant received 343 days’ credit. The trial court found defendant had paid “all of his fees.” The new protective order was dismissed in furtherance of justice.
On July 20, 2007, defendant filed an ex parte application to correct presentence custody credits in the trial court. On July 31, 2007, the trial court granted the application and ordered: “The defendant is given 446 days credit (298 actual + 148 [conduct].”
III. DISCUSSION
A. Orders On Appeal
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On August 3, 2007, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. We asked the parties to brief the following issues as to whether: defendant received a correct award of presentence credits; any restitution fines could be imposed; the trial court should have specifically imposed penalty assessments; the trial court should have imposed a state court construction penalty (Gov. Code, § 70372, subd. (a)) on the laboratory analysis fee; the trial court should have imposed a 20 percent state surcharge (Pen. Code, § 1465.7, subds. (a), (b)) on the laboratory analysis fee; and an additional court security fee (Pen. Code, § 1465.8, subd. (a)(1)) should have been imposed.
B. Presentence Custody Credit
The abstract of judgment states that defendant received 343 days of presentence credit, which includes 45 days of conduct credit. On its face, such a calculation of credits is in error. The trial court subsequently recalculated and awarded defendant 446 days of presentence credit, which includes 148 days of conduct credit. On May 13, 2004, the execution of judgment was suspended and defendant was initially placed on probation on the condition he serve 270 days in county jail, which means he presumably would have served 180 days in actual custody. On August 11, 2005, defendant’s probation was revoked and he was held without bail. On August 25, 2005, probation was reinstated on the condition defendant serve 28 days in custody, less credit for 28 days. Defendant was arrested in the restraining order case on February 28, 2007. Probation in the present case was revoked and defendant was remanded without bail on March 5, 2007. Defendant was sentenced on March 29, 2007. He was in custody on a no bail probation revocation order in the present case from March 5 through March 29, 2007.
The following presentence credit errors occurred. First, defendant was not entitled to 28 days of credit for time served between August 11 and 25, 2005. The actual total is 15 days. Second, defendant was not entitled to 30 days’ credit for time served between February 28 and March 29, 2007; he was in custody without bail on the present matter only from March 5 to 29, a period of 25 days. Third, the abstract of judgment incorrectly states defendant received only 45 days of conduct credit. Credits must be awarded as follows. Defendant served 220 days in custody prior to the order directing the execution of the previously imposed 2-year sentence. As to those 220 days, defendant was entitled to 110 days of conduct credits. Therefore, the total credits are 330 days, which includes 110 days of conduct credits.
C. Restitution Fines
As noted, a $200 Penal Code section 1202.45 parole revocation restitution fine was orally imposed and stayed when defendant was initially placed on probation. But, as also noted, no Penal Code section 1202.4, subdivision (b)(1) restitution fine was ever orally imposed. The abstract of judgment states that a $200 Penal Code section 1202.4, subdivision (b)(1) restitution fine was imposed. Further, the abstract of judgment states that a $200 Penal Code section 1202.45 parole revocation restitution fine was imposed and stayed. The oral pronouncement of a sentence is controlling over a minute order or the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) Thus, the reference in the abstract of judgment to the $200 Penal Code section 1202.4, subdivision (b)(1) restitution fine must be deleted. (People v. Zackery (2007) 147 Cal.App.4th 380, 386; People v. Hartsell (1973) 34 Cal.App.3d 8, 13.)
As to the $200 Penal Code section 1202.45 parole revocation restitution fine, it may not be imposed at all. This is because no Penal Code section 1202.4, subdivision (b)(1) restitution fine was imposed. Penal Code section 1202.45 states in part: “[T]he court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.” Here, no Penal Code section 1202.4, subdivision (b)(1) fine was orally imposed. Thus, based on the plain language of Penal Code section 1202.45, no parole revocation restitution fine could be imposed and stayed. The abstract of judgment must be modified to delete any reference to both Penal Code sections 1202.4, subdivision (b)(1) and 1202.45 restitution fines.
D. State Court Construction Penalty
A $50 Health and Safety Code section 11372.5, subdivision (a) laboratory analysis fee was imposed. Such a fee is subject to a Government Code section 70372, subdivision (a) state court construction penalty. (People v. McCoy (Nov. 14, 2007, B198031) __ Cal.App.4th __, __ [2007 Cal.App. Lexis 1857].) A state court construction penalty of $15 is to be added to the $50 Health and Safety Code section 11372.5, subdivision (a) laboratory analysis fee. (People v. McCoy, supra, __ Cal.App.4th at p. __.)
E. Penalty Assessments
As noted, the trial court imposed a $50 Health and Safety Code section 11372.5, subdivision (a) laboratory analysis fee “plus penalty assessment.” No error occurred when the trial court merely stated the penalty assessments were imposed on the laboratory analysis fee without specifying the amount. The Penal Code section 1464, subdivision (a) penalty assessment on the $50 laboratory analysis fee is $50. The Government Code section 76000, subdivision (a) penalty assessment on the $50 laboratory analysis fee is $35.
F. State Surcharge
The $50 Health and Safety Code section 11372.5, subdivision (a) laboratory analysis fee is subject to a 20 percent state surcharge pursuant to Penal Code section 1465.7. (People v. McCoy, supra, __ Cal.App.4th at p. __; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) The trial court was obligated to impose a $10 state surcharge. (People v. McCoy, supra, __ Cal.App.4th at p. __.)
G. Court Security Fees
Defendant was convicted of two counts—a drug offense and receiving stolen property. The trial court should have imposed a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1) on both counts. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one Penal Code section 1465.8, subdivision (a)(1) court security fee. As a result, an additional Penal Code section 1465.8, subdivision (a)(1) fee shall be imposed.
H. Trial Court’s Duties Upon Remittitur Issuance
The abstract of judgment does not even marginally reflect the sentences imposed. Further, we have ordered alterations of the fines and the presentence credit award. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.) Further, there is evidence that some of the fines, including the restitution fines, may have been paid. The trial court is to make appropriate orders to insure no improper fines have been collected or refunds are ordered. Further, the trial court is to personally insure the clerk’s minutes fully identify the fines imposed. The trial court purported to increase the amount of presentence credits to 446 days on July 31, 2007. The Department of Corrections and Rehabilitation is to disregard the erroneous jurisdictionally void presentence custody credit order.
We have used the traditional phrase “trial court” when referring to the events which are the subject of this appeal. The use of the phrase trial court is somewhat misleading because several different bench officers were involved in the various proceedings involving defendant. The last bench officer to rule in this case was Commissioner Brad Fox (and virtually every error we have described was not his we might note). To insure the correct, prompt, and final resolution of this case, upon issuance of the remittitur, unless he is unavailable, Commissioner Fox is to conduct the post appeal hearings. We leave these matters in his good hands.
IV. DISPOSITION
The judgment is modified to impose the fines, penalties, and surcharge discussed in the body of this opinion. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation by the superior court clerk. The Department of Corrections and Rehabilitation is to disregard the jurisdictionally void July 31, 2007 presentence credits order. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.