Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM026303, CM026495
BUTZ, J.
While on probation in Butte County case No. CM026303 for possession of methamphetamine, defendant Gregory Scott Berry was discovered by deputies of the Butte County Sheriff’s Department to be in possession of methamphetamine, a glass pipe, marijuana, plastic baggies, and an electronic scale. Detained in the back of a patrol vehicle, defendant kicked the back passenger window until it shattered.
In Butte County case No. CM026495, defendant entered a negotiated plea of no contest to possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)), and vandalism, a misdemeanor (Pen. Code, § 594, subd. (a)), and further admitted a special allegation of a prior prison term (id., § 667.5, subd. (b)). In exchange for the pleas, and a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey), two other counts and five other prior prison term allegations were dismissed. Accepting defendant’s plea of no contest in case No. CM026495, and finding him to be in violation of probation in case No. CM026303, the trial court sentenced him to six years eight months in state prison and imposed other orders.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends that the upper term sentence contravenes the holdings of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Defendant further contends that the trial court erred in imposing an aggregate fine of $1,060, and that the abstract of judgment does not accurately reflect the oral pronouncement of the court at sentencing. As will be explained more fully below, we reject defendant’s claim of error under Cunningham and Blakely. However, as the abstract of judgment is significantly at odds with the oral pronouncement at sentencing, we will remand to the trial court with instructions to remedy several items of error specifically enumerated herein.
FACTUAL AND PROCEDURAL BACKGROUND
Butte County case No. CM026303
In the early morning hours of December 30, 2006, defendant was stopped by the Chico Police Department while driving a vehicle with an expired registration. Defendant informed the officers that he was on parole, was not in possession of anything illegal, and that he had recently bought the vehicle, which he had neglected to register. A search of the vehicle uncovered a zippered pouch containing 0.6 grams of methamphetamine, a glass pipe, a small plastic bag containing a green leafy material, and $30. Defendant admitted ownership of the methamphetamine and glass pipe and was arrested.
Defendant entered a negotiated plea of no contest to possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)), and admitted two special allegations of prior prison terms (Pen. Code, § 667.5, subd. (b)). In exchange for the plea, and a Harvey waiver, another count and three other prior prison term allegations were dismissed. The trial court accepted defendant’s plea of no contest and granted defendant probation under Proposition 36.
The court explained to defendant: “Proposition 36 . . . provides certain individuals with drug-related offenses [the opportunity] to participate in a program, and if they successfully complete the program, the charges are dismissed. . . . [¶] On the other hand, if you fail, then the Court accepts the plea and sentences you, and looking at your record here, I would guess that a Court would not find this to be an unusual case, and you would be looking at state prison again.”
Butte County case No. CM026495
In the early morning hours of March 29, 2007, police discovered defendant in a vehicle parked at an apartment complex in Chico. Upon discovering that defendant was on parole, police searched his person and found a small plastic bag containing 1.0 gram of methamphetamine. Police also found a glass pipe on the ground next to the vehicle. Defendant was subsequently detained inside a patrol car. Police then searched defendant’s vehicle and found a large plastic bag containing 23.6 grams of marijuana in a plastic box under the front passenger seat. The vehicle also contained several small plastic bags and an electronic scale. Defendant admitted ownership of the methamphetamine and that he had thrown the pipe out the window. He also explained that the marijuana had been given to him by a friend who owed him money. When police returned to his vehicle to collect further evidence, defendant kicked the rear passenger window of the patrol car, causing the window to shatter.
Defendant entered a negotiated plea of no contest to possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)), and vandalism, a misdemeanor (§ 594, subd. (a)), and further admitted a special allegation of a prior prison term (§ 667.5, subd. (b)). In exchange for the plea and a Harvey waiver, two other counts and five other prior prison term allegations were dismissed.
Sentencing
Defendant was sentenced in case Nos. CM026303 and CM026495 on December 4, 2007. Finding defendant to be in violation of probation in case No. CM026303, the trial court sentenced him to six years eight months in state prison as follows: the upper term of three years for possession of methamphetamine (case No. CM026303), plus eight months (one-third the middle term) for possession of methamphetamine (case No. CM026495), plus two years for the two prior prison terms admitted in case No. CM026303, plus one year for the prior prison term admitted in case No. CM026495. The trial court also awarded defendant a total of 400 days of presentence custody credit and imposed other orders.
On December 18, 2007, defendant appeared for further sentencing, as the trial court had previously neglected to sentence him on the misdemeanor vandalism count. The trial court sentenced defendant to a concurrent term of one year in county jail for this count and imposed an additional $20 court security fee.
DISCUSSION
I
Defendant’s first contention is that imposition of the upper term violated Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856] and Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]. Defendant is mistaken.
First, defendant was sentenced after the Legislature amended section 1170 to give the trial court broad discretion to impose the lower, middle, or upper term by simply stating its reasons for imposing the selected term. As amended, the upper term, not the middle term, is the statutory maximum that may be imposed without additional factfinding. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851.) Here, the trial court imposed the upper term for the following reasons: “With respect to the term, defendant’s criminal conduct is frequent and increasingly serious--many violations of parole, many prior prison terms.” Imposing the upper term for these reasons was well within the trial court’s discretion. Because the upper term is now the statutory maximum, the trial court did not violate defendant’s Sixth Amendment rights when it sentenced him to the upper term.
Second, even if the trial court erroneously sentenced defendant under the pre-amendment version of section 1170, his Sixth Amendment rights under Blakely and Cunningham were not violated.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) The statutory maximum is the maximum sentence a court may impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; therefore, when a court’s authority to impose an enhanced sentence depends upon additional factfinding, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
In Cunningham, the Supreme Court held that California’s determinate sentencing law (DSL), as it existed prior to the Legislature’s amendment to section 1170, violated the Sixth and Fourteenth Amendments by “authoriz[ing] the judge, not the jury, to find the facts permitting an upper term sentence.” (Cunningham, supra, 549 U.S. at p. 871 [166 L.Ed.2d at p. 876].) As the Court explained, “the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Id. at p. 868 [166 L.Ed.2d at p. 873].)
However, as defendant acknowledges in his opening brief, in People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) This “prior conviction” exception encompasses “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)
In this case, the trial court imposed the upper term because of defendant’s numerous prior convictions, his numerous prison terms arising from those convictions, and his equally numerous violations of parole. As defendant concedes in his opening brief, imposition of the upper term for any of these reasons accords with our Supreme Court’s decision in Black. (Black, supra, 41 Cal.4th at pp. 818-820 [prior conviction exception must not be read “too narrowly”]; see also People v. Thomas (2001) 91 Cal.App.4th 212, 223 [prior prison term falls within the exception].)
We find no violation of defendant’s Sixth Amendment right to jury trial.
II
Defendant’s final contention on appeal is that the trial court erred in imposing an aggregate fine of $1,060 in case No. CM026303, and that the abstract of judgment does not accurately reflect the oral pronouncement of the court at sentencing. We agree.
A. Insufficient Breakdown of Fees
On January 24, 2007, defendant was granted probation in case No. CM026303, under Proposition 36, and was ordered by the court to pay “felony fees of $1,060.” Contrary to this court’s instruction in People v. High (2004) 119 Cal.App.4th 1192, 1200 (High), the court did not provide a “detailed recitation of all the fees, fines and penalties on the record.” The court opted instead for the shortcut of ordering defendant to pay “felony fees of $1,060.” While the January 24, 2007 “Terms and Conditions of Formal Probation” under Proposition 36 sets forth the breakdown of fees, this breakdown must appear on the record. Moreover, even the breakdown provided in that document is insufficient, as the penalty assessments attached to the criminal laboratory analysis fees indicate a total of $175 and are not itemized.
The fees set forth are a $200 restitution fine pursuant to section 1202.4, subdivision (b); $200 probation revocation fine (suspended) pursuant to section 1202.44; $175 criminal laboratory fees and penalty assessments pursuant to Health and Safety Code section 11372.5; $20 court security fee pursuant to section 1465.8; $35 administrative fee; $250 Proposition 36 drug program fee; and $380 Proposition 36 drug testing fee, for a total of $1,060.
On December 4, 2007, following revocation of defendant’s probation in case No. CM026303, the trial court sentenced him in case Nos. CM026303 and CM026495. When the court ordered payment of fines and fees, it pronounced as follows:
“The following fines and fees will be imposed. A restitution fine of $200 as previously ordered in [case No.] CM026303, and $200 in [case No.] CM026495. Restitution fine suspended in the amount of $200 in each case pursuant to [section] 1202.45. Upon revocation of probation, the $200 fine previously suspended will be imposed in [case No.] CM026303. [¶] He’s ordered to pay restitution to Butte County Public Works in the amount of $921.13 [in case No. CM026495]. . . . [¶] . . . [¶] He’s ordered to pay drug program fees and lab analysis fees of $355 and $540; that $355 is the $175, plus $180 in [case No. CM0]26495, plus a $5 DNA identification fund fee.”
This oral pronouncement is not the sort of “detailed recitation of all the fees, fines and penalties” we required in High. (High, supra, 119 Cal.App.4th at p. 1200.) Specifically, the $355 in criminal laboratory analysis fees and $540 in drug program fees orally pronounced by the court are not broken down in the record. Further, the court failed to specify as to which case the $540 in drug program fees and the $5 DNA identification fund fee related.
The court appears to have relied upon the recommendations in the probation report for these fees. While probation’s recommendations do include an accurate breakdown of the $355 in criminal laboratory analysis fees and the $540 drug program fee, these breakdowns must appear in the oral pronouncement of the court at sentencing. Moreover, while the abstract of judgment attempts to break down the fines and assessments according to the probation report, for the criminal laboratory analysis fees it erroneously assesses the state court facilities construction fund fee at $20 instead of $25 in both cases, thus throwing off the math for the criminal laboratory analysis fees by $5 in each case.
In case No. CM026303, the criminal laboratory analysis fee totals $175, a figure composed of the following:
The $540 drug program fee total is derived from the following:
The abstract of judgment does accurately reflect the drug program fee breakdown from the probation report, but the probation report is not the judgment. Moreover, although the probation report recommended the court impose drug program fees of $540 in both case Nos. CM026303 and CM026495, the court imposed only one such fee and, neither the oral pronouncement nor the abstract of judgment indicate whether this $540 drug program fee relates to case No. CM026303 or case No. CM026495.
B. Previously Imposed $1,060 in Fees
A further problem with the oral pronouncement and abstract of judgment is that they neglect to address what has happened to the $1,060 in fees previously imposed in case No. CM026303. It appears that the $200 restitution fine, $175 criminal laboratory analysis fee, and $20 court security fee, which apparently made up a portion of the $1,060 previously imposed, were reimposed at the sentencing hearing on December 4, 2007, and are set forth in the abstract of judgment, albeit inaccurately and without the requisite specificity. But what has happened to the remainder of the $1,060? If these fees are still outstanding, they too must be specifically set forth on the record and incorporated into the abstract of judgment. If not, the court should make clear that the January 24 judgment has been superseded by the December 4 judgment, and that nothing of the $1,060 in fees previously imposed remains outstanding.
C. Additional $20 Court Security Fee
The abstract of judgment also fails to include the $20 court security fee imposed at the resentencing hearing held December 18, 2007, during which the court corrected its previous “glitch” in failing to sentence defendant on the misdemeanor vandalism in case No. CM026495 (count 3).
D. Conclusion
Defendant requests that we remand so that the trial court may clarify how it arrived at the aggregate fines it imposed and amend the abstract of judgment accordingly. Defendant also asks that the abstract of judgment reflect the sentencing hearing that occurred on December 18, 2007. The Attorney General does not object. We shall order the abstract so amended.
The three oral pronouncements (January 24, 2007, December 4, 2007, and December 18, 2007) are hopelessly at odds with the abstract of judgment. “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] . . . If the abstract does not specify the amount of each fine, the Department of Corrections [and Rehabilitation] cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.” (High, supra, 119 Cal.App.4th at p. 1200.)
DISPOSITION
The judgment of conviction is affirmed. However, the matter is remanded to the Butte County Superior Court with instructions to provide a detailed recitation of all fees, fines and penalties on the record, and amend the abstract of judgment accordingly. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J., RAYE, J.
$ 50
criminal laboratory analysis fee
$ 10
court surcharge
$ 25
state court facilities construction fund
$ 50
state penalty assessment
$ 35
county penalty assessment
$ 5
DNA identification fund fee
$175
Total
In case No. CM026495, the criminal laboratory analysis fee totals $180, a figure composed of the following:
$ 50
criminal laboratory analysis fee
$ 10
court surcharge
$ 25
state court facilities construction fund
$ 50
state penalty assessment
$ 35
county penalty assessment
$ 5
DNA identification fund fee (Gov. Code, §76104.6)
$ 5
DNA identification fund fee (Gov. Code, §76104.7)
$180
Total
$150
drug program fee
$ 30
court surcharge
$ 75
state court facilities construction fund
$150
state penalty assessment
$105
county penalty assessment
$ 15
DNA identification fund fee (Gov. Code,§ 76104.6)
$ 15
DNA identification fund fee (Gov. Code,§ 76104.7)
$540 Total