Opinion
E066974
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID CHARLES BURGESS, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. RIF1503616 & RIF1506637 & RIF1600318 & RIF1601729) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed in part, reversed in part and remanded for resentencing. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant David Charles Burgess pled guilty to drug charges in four separate cases. In the principle case, which is the basis for defendant's jail sentence, he admitted three special allegations that he served prior prison terms and three special allegations that he committed crimes while on bail in three other felony cases. This appeal concerns three statutes: (1) the sentencing provisions of Proposition 64; (2) the sentencing enhancement under Penal Code section 12022.1 (section 12022.1) for offenses committed while released on bail; and (3) the newly revised Health and Safety Code section 11370.2.
On appeal, defendant contends the trial court erred by enhancing his sentence by four years based on two true findings that he committed the charged crimes while on felony bail (§ 12022.1) (on-bail enhancement). Defendant argues that because his felony conviction in one of the four cases, case No. RIF1506637, was reduced to a misdemeanor conviction under Proposition 64 (marijuana initiative), that case cannot be the basis for him being sentenced to a concurrent two-year jail term for that conviction.
Moreover, defendant challenges the imposition of two consecutive two-year terms based on his violation of section 12022.1. Defendant contends that because his former felony conviction in case No. RIF1506637 is now a misdemeanor offense under Proposition 64, and that case was the basis for the two special allegation true findings under section 12022.1, those two special findings must be stricken, and the two consecutive two-year terms imposed because of those true findings must also be stricken.
Additionally, defendant claims that his case must be remanded for resentencing because (1) the trial court's oral pronouncement of judgment imposed sentences for his three on-bail enhancement true findings is different than the sentences agree to in his guilty pleas, and (2) the minute order of that sentencing similarly reported a different pronouncement of judgment than agreed to in his guilty pleas.
Furthermore, defendant argues the case must be remanded because a sentencing hearing minute order incorrectly orders him to pay a laboratory analysis fee when neither the fee nor the amount of fee were orally pronounced at his sentencing hearing.
In a supplemental brief, defendant argues that the three Health and Safety Code section 11370.2 enhancements imposed on his Health and Safety Code section 11379 conviction must be stricken pursuant to Senate Bill 180.
As will be discussed post, we remand this case for resentencing under Proposition 64 and to correct clerical errors in sentencing. Moreover, we shall strike the three enhancements imposed by the trial court pursuant to former Health and Safety Code section 11370.2. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORY
A. CASE NO. RIF1503616
On July 15, 2015, a felony complaint charged defendant with unlawful possession of methamphetamine for sale under Health and Safety Code section 11378, and specially alleged that he was twice convicted of violating felony drug possession statutes within the meaning of Health and Safety Code section 11370.2, subdivision (c). The complaint also alleged that defendant served three separate prison terms for felony convictions within the meaning of Penal Code section 667.5, subdivision (b).
On September 16, 2016, defendant pled guilty to felony possession of methamphetamine for sale. As a result, the court sentenced defendant to a two-year term to be served concurrent to his sentences in case Nos. RIF1506637, RIF1600318, and RIF1601729.
B. CASE NO. RIF1506637
On November 6, 2015, a felony complaint charged defendant with felony possession of marijuana for sale under Health and Safety Code section 11359, and transporting marijuana under Health and Safety Code section 11360. The complaint specially alleged that defendant possessed marijuana for sale while released from custody within the meaning of section 12022.1.
On September 16, 2016, defendant pled guilty to felony possession of marijuana for sale. The court sentenced defendant to the midterm of two years, to be served concurrent to the sentences imposed in case Nos. RIF1503616, RIF1600318, and RIF1601729.
C. CASE NO. RIF1600318
On January 27, 2016, a felony complaint charged defendant with transporting methamphetamine under Health and Safety Code section 11379, subdivision (a), and possessing methamphetamine for sale under Health and Safety Code section 11378. The complaint specially alleged, as to each count, that defendant was twice convicted of violating felony drug possession statutes within the meaning of Health and Safety Code section 11370.2, subdivision (c). The complaint also alleged that defendant committed the crimes while released from custody within the meaning of section 12022.1. Furthermore, the complaint specially alleged that defendant served two separate prison terms for felony convictions within the meaning of Penal Code section 667.5, subdivision (b).
On September 16, 2016, defendant pled guilty to violating Health and Safety Code section 11378. The court sentenced him to the midterm of two years to be served concurrent to the sentences imposed in case Nos. RIF1506637 and RIF1601720.
D. CASE NO. RIF1601729
On April 12, 2016, a felony complaint charged defendant with transporting methamphetamine under Health and Safety Code section 11379, subdivision (a); possessing methamphetamine for sale under Health and Safety Code section 11378; unlawfully driving a vehicle under Vehicle Code section 10851; and receiving stolen property under Penal Code section 496d, subdivision (a). The complaint specially alleged, as to the two drug charges, that defendant was convicted three separate times for violating felony drug possession statutes within the meaning of Health and Safety Code section 11370.2, subdivision (c). The complaint also alleged that defendant committed the crimes while released from custody in three pending cases within the meaning of section 12022.1. The complaint further specially alleged that defendant served two separate prison terms for felony convictions within the meaning of Penal Code section 667.5, subdivision (b).
On September 16, 2016, defendant pled guilty to violating Health and Safety Code section 11379, admitted three special allegations for violating Health and Safety Code section 11370.2, and admitted three special allegations for violating section 12022.1. The court sentenced defendant to a 17-year split sentence: (1) the low term of two years for his methamphetamine manufacturing conviction; (2) three consecutive three-year terms for his admissions to violating Health and Safety Code section 11370.2; and (3) three consecutive two-year terms for his three admissions to violating section 12022.1. The court also ordered defendant to serve six years in county jail and 11 years under mandatory supervision.
On October 3, 2016, defendant filed his notice of appeal in the four cases; the trial court granted defendant's request for a certificate of probable cause.
E. DEFENDANT'S POSTJUDGMENT PROPOSITION 64 PETITION IN CASE NO. RIF1506637
On November 8, 2016, California voters approved Proposition 64 (Adult Use of Marijuana Act). The Act became effective November 9, 2016. On February 3, 2017, defendant filed a petition for resentencing in case No. RIF1506637. On March 29, 2017, the trial court granted defendant's petition for resentencing on his prior felony conviction for possession of marijuana for sale (Health & Saf. Code, § 11359), reducing it to a misdemeanor under Health and Safety Code section 11361.8.
DISCUSSION
A. DEFENDANT MUST BE RESENTENCED UNDER PROPOSITION 64
Defendant contends that the case must be remanded for resentencing because his Proposition 64 petition to reduce his felony conviction for possessing marijuana for sale in case No. RIF1506637 was granted in March 2017. Defendant contends that, because his felony offense in case No. RIF1506637 was reduced to a misdemeanor, his two-year, concurrent, felony sentence in that case must be reduced to a misdemeanor sentence, and the on-bail section 12022.1 special allegation true findings in case No. RIF1601729, that he committed a felony while on bail in RIF1596637 must be stricken.
The People agree that defendant's two-year felony sentence for possessing marijuana for sale in RIF1506637 must be reduced to a misdemeanor sentence as a result of the reduction of that felony to a misdemeanor under Proposition 64. The People, however, disagree that the section 12022.1 special allegation true findings related to defendant committing a felony crime in RIF1506637, when he was released from case No. RIF1503616; and committing a felony crime in case No. RIF1600318, while on bail in case No. RIF150637, must be stricken. The People argue that "Proposition 64 does not provide for retroactive nullification of appellant's on-bail enhancement. Additionally, because a violation of section 12022.1 is a status offense, an offender who violates a prohibition related to his legal status is not excused from the consequent punishment merely because the underlying legal status is later changed."
For the reasons set forth below, we agree with defendant and remand the case for resentencing.
1. UNDERLYING FACTS
At the September 16, 2016, hearing pertaining to the charges and special allegations in case No. RIF1601729, defendant pled guilty to the charge that he violated Health and Safety Code section 11379; he admitted the three special allegations for violating Health and Safety Code section 11370.2 (prior convictions for violating the Health and Safety Code); and admitted the three special allegations for violating section 12022.1 (committing a felony while on bail in a prior crime). With respect to the section 12022.1 special allegations, defendant admitted that he committed a felony crime while released from custody in case Nos. RIF1503616, RIF1506637, and RIF1600318.
On March 29, 2017, the trial court granted defendant's petition for resentencing under Proposition 64 in case No. RIF1506637, and reduced the felony sentence in that case to a misdemeanor.
2. LEGAL BACKGROUND
Section 12022.1, subdivision (a), provides in pertinent part: "(1) 'Primary offense'. . . . [¶] (2) 'Secondary offense' means a felony offense alleged to have been committed while the person is released from custody for a primary offense." Section 12022.1, subdivision (b), provides: "Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court."
"The plain wording of section 12022.1 provides that both the primary and secondary offenses must be felonies of the defendant is to receive the additional punishment." (Couzens, Bigelow & Prickett, Sentencing California Crimes (The Rutter Group 7/2016) Proposition 47, § 25:28, p. 25-107.) "[I]f either the primary or secondary offense is Proposition 47 eligible, the enhancement cannot be used. . . . To impose the enhancement under these circumstances would be to impose an unauthorized sentence." (Id. at p. 25-108
The same reasoning applies to non-bail enhancements for felonies resentenced to misdemeanors under Proposition 64 as under Proposition 47. "[T]he fundamental structure of the Act is the same as Propositions 36 and 47—all three initiatives reduce the penalties for designated offenses and provide a re-sentencing mechanism for persons sentenced under the old law. Accordingly, to the extent legal issues are addressed under one of the initiatives, their resolution likely will inform the resolution of the same issue in the context of other initiatives." (Couzens & Bigelow, Proposition 64 "Adult Use of Marijuana Act" (Nov 2016) pp. 4-5) http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf, as of August 20, 2018.
Proposition 47, Penal Code section 1170.18, subdivision (k), provides that a defendant's prior felony must be treated as a "misdemeanor for all purposes" after resentencing. Park interpreted the same phrase in section 17, subdivision (b), to preclude imposition of a sentencing enhancement based on a prior "wobbler" conviction that had been reduced to a misdemeanor. On July 30, 2018, the California Supreme Court concluded "that Proposition 47's mandate that the resentenced or redesignated offense 'be considered a misdemeanor for all purposes' (§ 1170.18, subd. (k)) permits defendants to challenge felony-based section 667.5 and 12022.1 enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors." (People v. Buycks (July 30, 2018) Nos. S231765, S232900, S238888 ___ Cal.5th ___, 2018 Cal. LEXIS 5486, *4.)
Prior to the Supreme Court's decision in People v. Buycks, supra, two appellate courts reached similar conclusions—that sentencing enhancements in pending cases should be stricken when based on prior offenses that have been reduced from felonies to misdemeanors under Proposition 47. In People v. Abdallah (2016) 246 Cal.App.4th 736, the court of appeal held that the enhancement must be stricken if the prior offense that formed the basis for the enhancement had been reduced to a misdemeanor under Proposition 47. "[W]here, as here, a prior conviction is no longer a felony at the time the court imposes a sentence enhancement under section 667.5, Proposition 47 precludes the court from using that conviction as a felony merely because it was a felony at the time the defendant committed the offense." (Id. at 747.) Although Abdallah concerned an enhancement in a sentence imposed after resentencing of the prior offense, a later case had held that such an enhancement may be stricken even if the enhancement was imposed before the resentencing of the prior offense occurred, as long as the sentence is not yet final. In People v. Evans (2016) 6 Cal.App.5th 894, review granted February 22, 2017, S239635, the court agreed "with Abdallah's interpretation that [Penal Code s]ection 1170.18(k) prohibits a court from imposing an enhancement based on an offense that has already been reclassified a misdemeanor" because that subsection "reclassified that conviction as a misdemeanor 'for all purposes.' " (Id. at pp. 901-902.) The Evans court concluded: "As a result, offenders may challenge prison prior enhancements based on reclassified convictions so long as the enhanced sentence is not subject to a final judgment." (Id. at p. 903.)
Although the Supreme Court has granted review, this case "may be cited for potentially persuasive value" due to a change in California Rules of Court, Rule 8.1115(e)(1).
As relevant to this case, Proposition 64 contains similar language to that interpreted by the cases cited above. Health and Safety Code section 11361.8, subdivision (h), states: "Any felony conviction that is recalled and resentenced under subdivision (b) . . . shall be considered a misdemeanor or infraction for all purposes." In this case, under section 12022.1, as interpreted by Couzens and Bigelow, defendant is entitled to have two of his enhancements stricken since an enhancement may only be imposed where both the primary AND secondary offenses are felonies. Here, defendant's two-year sentencing enhancement imposed for committing a violation of Health and Safety Code section 11359, possession of marijuana for sale in case No. RIF1506637, while he was released on bail in case No. RIF1503616, charging him with possession of methamphetamine for sale in violation of Health and Safety Code section 11378, must be stricken because defendant's secondary marijuana offense is no longer a felony. Moreover, the additional two-year sentencing enhancement imposed for committing a violation of Health and Safety Code section 11378, possession of methamphetamine for sale in case No. RIF1600318, while he was released on bail in case No. RIF1506637, charging him with possessing marijuana for sale under Health and Safety Code section 11359, also must be stricken because defendant's primary marijuana offense is no longer a felony.
Furthermore, the California Supreme Court has determined that a plea agreement poses no bar to resentencing of a defendant in accordance with the agreement after one of his offenses was reduced from a felony to a misdemeanor under Proposition 47. The court also held that the prosecution does not have the right to withdraw from such a plea agreement because the defendant may receive a lesser sentence after resentencing. (Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris).) The Supreme Court observed that Penal Code section 1170.18, subdivision (a), expressly authorized the filing of a petition for resentencing under Proposition 47 by a "person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies." (Harris, at p. 989.) Health and Safety Code section 11361.8, subdivision (a), in Proposition 64 contains a similar clause.
Health and Safety Code section 11361.8, subdivision (a) provides, in pertinent part: "A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal." (Italics added.)
In Harris, the Supreme Court concluded: "[Penal Code s]ection 1170.18, subdivision (a), states that it governs someone 'serving a sentence for a conviction, whether by trial or plea,' of one of the felonies that Proposition 47 reduced to a misdemeanor. . . . The italicized language makes it clear that the provision applies to someone like defendant who was convicted by plea. (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 651-653 . . .) . . . [b]y expressly mentioning convictions by plea, Proposition 47 contemplated relief to all eligible defendants." (Harris, supra, 1 Cal.5th 991.)
The court then went on to hold that reduction in the defendant's sentence as a result of Proposition 47 did not entitle the prosecution to withdraw from the plea agreement. "The resentencing process that Proposition 47 established would often prove meaningless if the prosecution could respond to a successful resentencing petition by withdrawing from an underlying plea agreement and reinstating the original charges filed against the petitioner. . . . [¶] . . . [¶] . . . The electorate may bind the People to a unilateral change in a sentence without affording them the option to rescind the plea agreement. The electorate did so when it enacted Proposition 47." (Harris, supra, 1 Cal.5th at p. 589-590, citing Doe v. Harris (2013) 57 Cal.4th 64, 70; see People v. Dunn (2016) 248 Cal.App.4th 518, 528 ["the fact that a change in the law may disadvantage one party or the other to a plea agreement does not afford the disadvantaged party the right to revoke it"].) This court reached the same conclusion in People v. Brown (2016) 244 Cal.App.4th 1170, 1175. (See Couzens & Bigelow, Proposition 47, "The Safe Neighborhoods and Schools Act," supra, p. 91.)
The California Supreme Court initially granted review in Brown, but dismissed review on January 11, 2017, S233274, in light of its decision in Harris v. Superior Court, supra, 1 Cal.5th 984.
Moreover, allowing the People to withdraw from the plea agreement upon remand for resentencing would violate defendant's constitutional right to due process of law. As the court of appeal explained in People v Silva (2015) 247 Cal.App.4th 578:
" 'When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.' This is a rule of constitutional dimension, implicating due process concerns. Due process requires that both the defendant and the prosecution, abide by the terms of the plea agreement and that the punishment imposed not significantly exceed that which the parties agreed upon." (People v. Silva, supra, 247 Cal.App.4th at p. 587.)
In conclusion, we find that defendant is entitled to have to his two-year concurrent felony sentence recalculated based on the reduction of his conviction under Health and Safety Code section 11359, possession of marijuana for sale in case No. RIF1506637, to a misdemeanor by the lower court on March 29, 2017, in accordance with Proposition 64. Moreover, defendant is entitled to have two of his three out-on-bail enhancements imposed under section 12022.1 stricken because of the resentencing of his marijuana conviction to a misdemeanor. The case is remanded to the trial court for resentencing.
B. THE THREE ENHANCEMENTS IMPOSED UNDER HEALTH AND SAFETY CODE SECTION 11370.2 FOR THREE PRIOR DRUG OFFENSES SHOULD BE STRICKEN
In his supplemental brief, defendant argues that three Health and Safety Code section 11370.2 enhancements imposed on his Health and Safety Code section 11370 conviction must be stricken under Senate Bill 180.
Health and Safety Code section 11370.2 was recently amended by Senate Bill 180, with the amendments to take effect on January 1, 2018. (Stats. 2017, ch. 677, § 1.) Health and Safety Code section 11370.2, as amended, established a sentence enhancement only for violations of Health and Safety Code section 11380, which criminalized the use of a minor as an agent in the commission of a drug offense. (Stats. 2017, ch. 677, § 1.) The amended statute abolished sentence enhancements predicated on violations of other drug statutes, including Health and Safety Code section 11379.
In this case, the trial court imposed three enhancements pursuant to the former version of Health and Safety Code section 11370.2, on the basis of defendant's prior conviction for violating Health and Safety Code section 11379. The issue is, therefore, whether amended Health and Safety Code section 11378, applies retroactively to this case. Both parties agree that, under the holding of In re Estrada (1965) 63 Cal.2d 740, the amended enhancement statute applies retroactively.
Whether a statute has retroactive effect is ultimately a question of legislative intent. (See People v. Conley (2016) 63 Cal.4th 646, 659.) In this context, Estrada explains that when a statue mitigates punishment, it leads to the "inevitable inference" that the Legislature intended for it to apply as broadly as possible, i.e., to all cases that were pending final judgment on its effect date. (In re Estrada, supra, 63 Cal.2d at pp. 744-745 ["The key date [in determining whether a defendant receives the benefit of an ameliorative amendment] is the date of final judgment."].) The rationale provided in In re Estrada applies when the Legislature abolishes a crime of an enhancement. (See, e.g., People v. Rossi (1976) 18 Cal.3d 295, 301.)
Here, defendant's case was pending final judgment when the relevant amendment to Health and Safety Code section 11370.2 took effect on January 1, 2018. The amendment thus applies retroactively to his case. Accordingly, as requested by both defendant and the People, we will direct the trial court to strike the three enhancements imposed pursuant to former Health and Safety Code section 11370.2.
C. THIS CASE SHOULD BE REMANDED TO CORRECT CLERICAL ERRORS
Defendant contends that this case must be remanded to allow defendant the election to withdraw his guilty pleas or to be resentenced under the terms of his plea agreement. Defendant argues that the trial court violated his plea agreement by verbally imposing an aggregate term greater than the agreed-upon term of 17 years. Defendant also contends that the minute order compounded that error by incorrectly stating his sentence was enhanced by three consecutive three-year terms for his section 12022.1 true findings (instead of three consecutive two-year terms); and two consecutive three-year terms for his Health and Safety Code section 11370.2 true findings (instead of three consecutive three-year terms). Defendant argues that, because of the above errors, he should be allowed to either affirm his negotiated sentence or withdraw his guilty pleas, including the negotiated sentence as modified by his postjudgment petition for resentencing in RIF150637 under Proposition 64.
As discussed ante, because we have determined that two of the three enhancements imposed by the trial court pursuant to section 12022.1 should be stricken under Proposition 64, we shall only discuss the remaining section 12022.1 enhancement.
As discussed ante, because we have determined that the three enhancements imposed by the trial court pursuant to former Health and Safety Code section 11370.2 should be stricken, we need not discuss the alleged error involving these enhancements. --------
The People agree that the trial court's September 16, 2016, pronouncement of the sentence contains a misstatement, and the court clerk's minute order of that verbal sentence inaccurately memorializes the court's pronouncement of judgment. The People, however, disagree with defendant's proffered remedy. The People argue that the matter should be remanded for the limited purpose of allowing the trial court to correct the sentence. We agree with the People.
At the September 16, 2016, hearing, the court orally pronounced sentence in principal case No. RIF1601729. Relevant to the instant appellate claim pertaining to the sentences imposed for the section 12022.1, on-bail enhancement true finding, the court stated: "As to the 12022.l enhancements, I'm sentencing you [defendant] to three years, each of those to run consecutive to the previous enhancements and the sentence imposed in Count 1. [¶] That's a 17-year sentence in state prison." The minute order pertaining to the section 12022.1 true finding imposed the three-year sentence for the enhancement.
Notwithstanding the imposition of the three-year sentence for the section 12022.1 enhancement, both parties agree that the statutory punishment for violating section 12022.1 is a consecutive two-year sentence. (§ 12022.1, subd. (b).) Therefore, we remand the case to the trial court to impose the two-year consecutive sentence for the remaining section 12022.1 enhancement.
D. THE COURT PROPERLY IMPOSED THE LABORATORY FEE AS A CONDITION OF DEFENDANT'S PLEA AGREEMENT
Defendant contends that the trial court erred by imposing "a criminal laboratory analysis fee of $205.00, including assessment (HS 11372.5)." This fee was only entered in the minute order of the primary case, case No. RIF1601729, and not in the minutes of the other three cases.
Health and Safety Code section 11372.5, subdivision (a), prescribes "a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense." Here, the record does not indicate whether the $205 fee was meant to be imposed only in the principal case, or in all four cases. If it were imposed only in the principal case, it would mean that the court imposed $155 in assessments. However, it would have been improper for the trial court to impose any penalty "assessment" on top of the crime lab analysis fee. (See People v. Watts (2016) 2 Cal.App.5th 223, 237-238, disapproved on another ground in People v. Ruiz (2018) 4 Cal.5th 1100, 1112-1113.) Moreover, the lab fees were never mentioned at the sentencing hearing; they only appeared in the minute order. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387-389 [fines and fees contained in minute order must be stricken if not verbally imposed at sentencing hearing], citing People v. Mesa (1975) 14 Cal.3d 466, 471-472.)
The People argue that defendant's contention must be rejected because he "agreed to all the terms of his sentence in RIF-1601729, including paying a $205 laboratory fee and penalty assessment fee 'of $205.' " (RB 27} Here, at the time defendant entered his guilty plea in case No. RIF1601729, he verbally acknowledged to the trial court that he read, understood, agreed to the terms of his guilty plea form, and signed the form. He also verbally acknowledged to the trial court that he read, understood, agreed to the terms of the accompanying two-page mandatory supervision form, and signed that form. The mandatory supervision form contained defendant's sentence in case No. RIF1601729, and the terms and conditions of that sentence. The form shows, in pertinent part, a 17-year aggregate sentence was imposed in which defendant would serve six years in county jail and 132 months (11 years) on mandatory supervision, and that defendant would pay a $205 laboratory fee. Defendant's signature appears below his agreement to "[p]ay drug lab fee and penalty assessment fee of $205 (H&S § 11372.5)." The People, however, provides no legal authority to support its argument. For the reasons set forth post we agree with the People.
"Defendants are estopped from complaining of sentences to which they agreed." (People v. Buttram (2003) 30 Cal.4th 773, 783; see also In re Stier (2007) 152 Cal.App.4th 63, 80 [" 'parties are estopped from complaining of results or orders with which they expressed agreement' "]; cf. People v. Hester (2000) 22 Cal.4th 290, 295 ["[w]hile failure to object is not an implicit waiver of [Penal Code] section 654 rights, acceptance of the plea bargain here was"].) Defendant's claim that the award of fees and assessments was unauthorized does not create a basis for consideration of his contention. "The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (Hester, at p. 295.)
Therefore, we find that the trial court properly imposed a $205 criminal laboratory fee, including assessment.
DISPOSITION
The judgment is reversed as to defendant's sentence and the case is remanded with directions to the trial court to resentence defendant consistent with this opinion. The trial court is further directed to strike the three enhancements imposed pursuant to former Health and Safety Code section 11370.2. In all other respects, the judgment in affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.