Opinion
B225741
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. ANDRES CHACON, Defendant and Appellant.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA084363-02)
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles D. Sheldon, Judge. Affirmed and remanded.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Andres Chacon was charged with possession of cocaine for sale (Health & Saf. Code, § 11351), possession of MDMA (ecstasy) (Health & Saf. Code, § 11377, subd. (a)), and possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) At trial, the court did not allow Chacon's expert to render an opinion on whether Chacon possessed the narcotics for the purpose of sale. The jury convicted Chacon; the court sentenced him to three years probation.
On appeal, Chacon argues that the trial court committed prejudicial error by: (1) restricting his expert's testimony, (2) improperly permitting hearsay testimony, and (3) misstating the reasonable doubt standard.
The Attorney General contends that Chacon's conviction should be affirmed, but that the trial court failed to impose several mandatory fines and penalties.
We affirm Chacon's conviction, but remand to allow the trial court to recalculate Chacon's fees and penalties and issue a new abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Criminal Offenses
On December 23, 2009, Los Angeles County Deputy Sheriff Steve Ferreira and nine other officers conducted a search of a house that was owned by the parents of Appellant Andres Chacon (Chacon) and his brother and co-defendant, Melchor Chacon (Melchor). Melchor, who was in the house when the officers arrived, informed Ferreira that there was a baggie of methamphetamine in his bedroom. Ferreira searched the room and found a bin containing marijuana, several baggies of methamphetamine, a baggie of cocaine, a bag of substance used to cut drugs and a box containing several empty plastic baggies. A second officer, Deputy Sheriff Joseph Carrillo, found a digital scale with what appeared to be methamphetamine residue.
For purposes of simplicity, we refer to the Appellant as Chacon, and refer to his brother, who was a co-defendant in the trial but is not a party to this appeal, as Melchor.
After Ferreira completed the search of Melchor's room, Melchor stated that he forgot he had all those other "baggies with dope in them." Melchor further stated that he used the drugs for personal use and that "people come by from time to time to take a bag here and there."
A third officer, Deputy Michael Gaisford, searched a room in the northeast corner of the house, where he found several pieces of mail addressed to Andres Chacon and a copy of Chacon's passport. In that same bedroom, Deputy Ferreira recovered a baggie of methamphetamine, several baggies of what appeared to be cocaine and other narcotics, a large Ziploc baggie containing numerous small, empty Ziploc baggies and two scales. When questioned by officers, Chacon stated that the drugs found in his room were for personal use and that he bought drugs in bulk.
At the time of the search, Deputy Ferreira did not see any signs suggesting that Melchor or Chacon were under the influence of narcotics, nor did he find any drug paraphernalia.
B. Information and Trial
1. Information
On March 15, 2010, the Los Angeles County District Attorney filed an information charging Andres Chacon with possession of cocaine for the purpose of sale, possession of methamphetamine and possession of ecstasy. (See Health & Saf. Code, §§ 11351 & 11377, subd. (a).) The information also charged Melchor with possession of cocaine, marijuana and methamphetamine, all for the purpose of sale. (Health & Saf. Code, §§ 11351.)
2. Testimony of the prosecution's witnesses
At trial, the prosecution called Deputy Ferreira to testify about how police conducted the search of the Chacon residence and to describe the items that had been recovered from the premises. Deputy Ferreira stated that 10 officers participated in the search, working in pairs. If an officer found an item of interest, he informed Ferreira, who then "recover[ed]" whatever item was found. Ferreira testified that, utilizing this process, he personally recovered several baggies of narcotics, scales and other evidence from Melchor and Chacon's bedrooms.
The prosecution also called Bonnie Watson, a criminalist in the narcotics section of the Los Angeles County Sheriff's crime lab. Watson testified that she had tested and weighed the substances in several baggies recovered from Chacon's room, which included 5.16 grams of powder cocaine, 0.11 grams of cocaine, 0.33 grams of powder cocaine, 0.33 grams of methamphetamine and .08 grams of MDMA (ecstasy).
Deputies Carrillo and Ferreira both testified that, based on the narcotics and other evidence recovered in Chacon's room, they believed the Appellant possessed drugs for the purpose of sale. Ferreira stated that his opinion was based on "the amount of narcotics, the empty baggies, scales, no drug paraphernalia," and the fact that Appellant was "not under the influence at the time of our contact."
3. Testimony of Andres Chacon's drug expert
As part of his defense, Andres Chacon called Felix Damico, a drug expert who formerly served as a sergeant in the San Bernardino Sheriff's Department. During his direct testimony, Damico explained why various pieces of evidence were consistent with personal use. Specifically, Damico testified that: (1) an individual who buys drugs for personal use might have a scale to ensure that the seller has properly weighed the drugs; (2) many of the baggies found in Chacon's room were too small to package powder cocaine for sale; (3) cocaine is normally "ingested through the nose," and, as result, it could be taken without the use of "any specific paraphernalia;" (4) symptoms of cocaine use are of relatively brief duration, and wear off in about 90 minutes.
Damico also testified that the amount of cocaine found in Chacon's room -approximately five grams - could be "ingested" by a single user "over a couple of days" and that it was cheaper to purchase cocaine for personal use "in quantity if you can afford it." Damico further explained that the mere fact that somebody possessed a large amount of powder cocaine in one spot did not suggest that it was possessed for the purposes of sale.
Damico also stated that if several baggies of drugs were recovered from a single location, but each baggie contained a different amount of drugs, it was unlikely that the drugs were possessed for the purpose of sale. Rather, in Damico's view, such evidence suggested "he's making up little packages and he's taking them with him where he goes," adding, "I mean he has some here that has quite a bit in it, at least one or two. The rest of them just seem to be small amounts . . . [¶] . . . [¶] . . . there is nothing consistent about it."
After eliciting the above testimony, Chacon's counsel presented Damico with a hypothetical scenario summarizing all the evidence found in Chacon's room and asked whether he was able to "form a conclusion of whether that person possessed for sale." The District Attorney objected on the grounds that the question called for a "legal conclusion." The court sustained the objection, explaining:
What's allowed, the way I understand it, just so we're on the record here, is you can talk about different things, but you can't do the ultimate issue from experts. So I'm going to sustain that, for him giving a final on I say, yeah, it was possessed for sale, no it wasn't. That's a jury question. [¶] But you can try to do it a different way. I'm sustaining that objection for the reason I just stated. [¶] . . . [¶] The ultimate issue is out.When Chacon's counsel argued that prosecution witnesses had been permitted to give identical opinion testimony, the court stated "I didn't get an objection [on that testimony]. I have to rule on objections."
Later in her direct examination, Chacon's counsel again presented Damico with a hypothetical set of facts based on the evidence found in Chacon's room and asked the expert to "render an opinion whether that individual possessed those small baggies for sale or for personal use." The court, however, interrupted, stating, "You may not answer that, that's the ultimate issue. The jury decides that." The court then addressed the jurors and provided the following instruction:
You, the jurors, have everything that this person has had this experience that he's told you before you to help you. And the other side has before them the things to help you on that side. [¶] It is a rule of law, myHe further added, "I am not allowing [Damico] to give an opinion on the ultimate issue."
understanding, you can't have experts say and the jury should d[o] this, the jury should do that because of opinions.
During his cross-examination testimony, Damico stated that "whoever own[ed]" the baggies found in Chacon's room had "not packaged [the drugs] for sale" because each baggie contained a different quantity of narcotic. In response, the prosecution asked, "That's a conclusion that they're not packaged for sale?" to which Damico responded "yes."
4. Trial court's decision to strike prior prosecution testimony
After both sides had presented their evidence, the trial court instructed the jury that, out of fairness to the defendants, it had decided to strike Deputy Carrillo and Deputy Ferreira's prior testimony regarding whether they believed that the defendants possessed drugs for the purpose of sale:
I do believe [the deputies] . . . gave an opinion on the ultimate issue, was there or was there not the proper intent that's needed, that's one of the major issues in this case, possession for purpose of sale, that's intent, I thought it would only be fair to do something I wouldn't usually do but I've decided to do it just to even it up a little bit. Because there was no objection to the other experts, I feel, in light of what I just said, that I should, and I do now, strike the final opinion given by the two officers that gave opinions it was possessed for sale in my opinion.After closing arguments, the jury entered a unanimous verdict finding both Melchor and Chacon guilty of all counts. Chacon was sentenced to three years probation.
And so then neither side had somebody saying I'm an expert, ultimate issue decided. That's out of it. When they said that's my ultimate opinion, that's on the ultimate issue, that's gone. But everything else is there. All other evidence they've presented by either side on the issue can be considered by you in deciding the case.
DISCUSSION
Chacon raises three issues on appeal. First, he contends that the trial court erred by permitting hearsay evidence indicating that officers found narcotics in his bedroom. Second, Chacon argues that his expert should have been allowed to provide opinion testimony regarding whether the cocaine found in his bedroom was possessed for the purpose of sale. Third, he argues that, during closing argument, the trial court improperly instructed the jury on the reasonable doubt standard.
The Attorney General contends that Chacon's conviction should be affirmed, but argues that the trial court failed to impose several mandatory penalties and fees.
A. The Trial Court Did Not Admit Hearsay Testimony
Chacon argues that the trial court improperly permitted hearsay evidence when it allowed Deputy Ferreira to testify that officers aiding in the search of the Chacon residence initially located the narcotics, and then told Ferreira where the drugs were located. Specifically, Ferreira testified that if the other officers "found something," they notified Ferreira, who would then "recover" the item. According to Chacon, "Ferreira's testimony that the deputies found the narcotics, told him, and he 'went and recovered it' is inadmissible hearsay consisting of a verbal statement and nonverbal, assertive conduct intended to be a substitute for a verbal expression. This is tantamount to the deputies pointing out the alleged narcotics to Ferreira." We review the trial court's decision to admit evidence for abuse of discretion. (People v. McDonald (1984) 37 Cal.3d 351, 373 (McDonald)[overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th. 896, 914].)
Evidence Code section 1200 defines "hearsay" as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." A statement that is intended to show that the hearer's subsequent actions were in conformity with the information provided in that statement is not hearsay:
"[O]ne important category of nonhearsay evidence [is] evidence of a declarant's statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement. [Citation.]"(People v. Scalzi (1981) 126 Cal.App.3d 901, 907.)
The California Supreme Court applied this well-established rule in People v. Mayfield (1997) 14 Cal.4th 668 (Mayfield).The defendant in Mayfield argued that a witness's statement that he told a police officer that the defendant had a gun constituted inadmissible hearsay. The Supreme Court disagreed:
The evidence was admissible for a nonhearsay purpose. One of the issues in the case was whether [the officer] had used excessive force or behaved improperly in his confrontation with defendant. . . . Evidence that [the officer] had received information that defendant might be armed with a gun was relevant on this issue. Although evidence of [the witness's] statement to [the officer] was not admissible to prove that defendant in fact possessed a gun, it was admissible for the nonhearsay purpose of establishing [the officer's] state of mind and the appropriateness of his ensuing conduct.(Id. at p. 751.)
As in Mayfield, Deputy Ferreira's statement was intended to demonstrate that his subsequent actions were in conformity with information he received from third-parties. Although Deputy Ferreira testified that he personally recovered narcotics from Chacon's bedroom, he explained that he was able to recover those narcotics because other officers notified him that they had found drugs in that specific location. While Ferreira's statements about the officers' conduct may have been inadmissible to prove drugs were found in Chacon's bedroom, they were admissible for the "nonhearsay purpose" of demonstrating why Ferreira believed he would recover drugs in Chacon's bedroom, which he ultimately did. In other words, the testimony was not admitted to prove that drugs were found in Chacon's bedroom, but rather to demonstrate why Ferreira searched for drugs in Chacon's bedroom.
Under Evidence Code section 355, Chacon was free to request a limiting instruction informing the jury that Ferreira's statement about the other officers' role in the search could not be treated as evidence about where the drugs were recovered. (See Evid. Code, § 355 ["[w]hen evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly"].) However, Chacon never requested such an instruction and the trial court had no sua sponte duty to provide one. (People v. Smith (2007) 40 Cal.4th 483, 516 [under Evid. Code, § 355, "'absent a request by defendant, the trial court has no sua sponte duty to give a limiting instruction'"].)
B. The Trial Court's Restriction of Damico's Testimony Was Harmless
Chacon also argues that the trial court erred when it precluded Felix Damico, a drug expert for the defense, from providing opinion testimony regarding whether the narcotics and other evidence found in Chacon's room suggested that he possessed the drugs for the purpose of sale. We review the trial court's decision to exclude expert testimony under the abuse of discretion standard, (People v. Smith (2003) 30 Cal.4th 581, 627), "mindful that [a decision] resting on a demonstrable legal error constitutes such an abuse." (People v. Hume (2011) 196 Cal.App.4th 990, 995.)
1. The trial court erred in restricting the expert's opinion testimony based solely on the fact that it involved an ultimate issue
After eliciting extensive testimony regarding whether various pieces of evidence suggested that Chacon possessed cocaine for the purpose of sale, Chacon's counsel gave the defense expert a "hypothetical" based on all of the evidence found in Chacon's room and asked the following question: "Based on your training and experience, are you be able to form a conclusion of whether that person possessed for sale?" The trial court did not allow the expert to answer, explaining "you can talk about the different things, but you can't do the ultimate issue from experts. . . . That's a jury question." When Chacon's counsel tried to reformulate the hypothetical, the trial court instructed Damico not to testify, stating "You may not answer that. That's the ultimate issue. The jury decides that." The court further commented that it was "a rule of law" that experts could not "give an opinion on the ultimate issue."
The trial court's ruling that an expert is prohibited from testifying on an "ultimate issue" is in conflict with well-established case law and the Evidence Code. Generally, the requirements for expert testimony "are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. . . . Such evidence is admissible even though it encompasses the ultimate issue in the case." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) Indeed, opinions embracing ultimate issues "are expressly contemplated by Evidence Code section 805," (People v. Doss (1992) 4 Cal.App.4th 1585, 1596 (Doss)), which states: "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact."
Although the Attorney General does not explicitly concede that the trial court erred in limiting Damico's testimony, it acknowledges that "[a]n expert witness may testify as to an ultimate issue of fact." Moreover, the Attorney General's brief does not attempt to argue that the trial court properly excluded such testimony; instead the brief argues only that any error in excluding such evidence was harmless.
Our courts have affirmed the use of expert opinion on ultimate issues in several different contexts. For example, in Doss, supra, 4 Cal.App.4th 1585, the appellate court ruled that that the trial court properly admitted "expert opinion that defendant possessed the drugs for sale. . . ." (Id. at p. 1595.) Citing Evidence Code section 805, the court explained that "[i]t is neither unusual nor impermissible for an expert to testify to an ultimate issue," and that the defendant "remained free to challenge the basis of [the expert's] testimony or to call an expert with a contrary opinion." (Doss, supra, at p. 1596.)
In Paez v. Alcoholic Beverage Control Appeals Bd. (1990) 222 Cal.App.3d 1025, the defendant challenged an administrative law judge's decision to permit an officer "to state that in his expert opinion [an] individual was 'obviously' intoxicated, since this issue was the ultimate one to be determined in the proceeding." (Id. at p. 1026.) Although the appellate court acknowledged that some early California opinions suggested expert testimony was improper on ultimate issues, it explained that such decisions "no longer state the law," as evidenced by California's adoption of Evidence Code section 805. (Ibid.; see also People v. Valdez (1997) 58 Cal.App.4th 494, 507 [affirming "the propriety of expert opinion concerning whether defendant acted for the benefit . . . of a gang," which was "an ultimate factual issue for the jury to decide"].)
Thus, contrary to the trial court's ruling at trial, Evidence Code section 805 and cases that have interpreted that provision make clear that expert testimony is not barred as a matter of law merely because it relates to an ultimate issue in the case. Accordingly, the trial court abused its discretion in restricting Damico's testimony on that basis alone. (See generally In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061 ["decision that rests on an error of law constitutes an abuse of discretion"].)
The trial court, of course, retains broad discretion to limit expert testimony under various other principles stated in the Evidence Code. For example, the court "'has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay[]' [[c]itation[]]" and to "'to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' [Citation]." (People v. Gardeley (1996) 14 Cal.4th 605, 619.) The trial court also has discretion to determine whether a particular element of a crime is "'sufficiently beyond common experience' that the jury needs an expert" to aid in its determination of the issue. (See People v. Torres (1995) 33 Cal.App.4th 37, 47.) In this case, however, the court did not bar Damico from answering counsel's hypothetical for any of those reasons. Instead, the court explained that expert testimony was, as a rule, not admissible "on the ultimate issue."
2. The trial court's error was harmless
"An error in excluding expert testimony may be found harmless." (McDonald, supra, 37 Cal.3d at p. 376.) Trial court errors involving the exclusion of evidence, including the erroneous exclusion of proffered expert witness testimony, are generally governed by the Watson standard, namely, whether it is reasonably probable that a result more favorable to defendant would have been achieved in the absence of the error. (See (People v. Watson (1956) 46 Cal.2d 818, 836; McDonald, supra, 37 Cal.3d at p. 376; People v. McNeil (2009) 46 Cal.4th 1183, 1203 ["'As a general matter, the "[application of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." [Citations.]' [Citation.] Because the trial court merely rejected some evidence concerning a defense, and did not preclude the defendant from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson. . . . "]; People v. Stoll (1989) 49 Cal.3d 1136, 1163 [reviewing exclusion of expert testimony under Watson standard].)
Although the trial court did not allow Damico to answer a hypothetical designed to elicit whether he believed the evidence, considered as a whole, suggested that Chacon possessed the cocaine for the purpose of sale, the expert was permitted to provide extensive testimony explaining why individual various pieces of evidence were consistent with personal use, rather than possession for the purpose of sale.
Specifically, Damico testified that: (1) a person with 5.16 grams of cocaine, which was the largest amount of narcotic found in any baggie in Chacon's bedroom, could ingest that quantity of drugs in three to four days and that it is cheaper for a user to purchase narcotics in larger quantities; (2) the varying quantities of cocaine found in each of the baggies in Chacon's room was inconsistent with drug sales; (3) several of the baggies found in Chacon's room were too small to use for selling drugs; (4) a drug user might possess scales to ensure that the dealer provided the correct amount of narcotic; (5) no paraphernalia is needed to ingest cocaine, and the symptoms of cocaine use last only 90 minutes.
In addition, Damico testified that there were numerous other factors that would suggest possession for the purpose of sale, including possessing cutting material, possessing cash in the denominations that such drugs are normally sold and possessing "pay-owe sheets" detailing which customers owe money. None of those items were found in Chacon's bedroom.
Finally, during his cross-examination testimony, Damico testified that, based on the number of baggies and varying quantities of drugs found in each baggie, it appeared that "whoever owns them" did not intend to sell them because "they're not packaged for sale." He then reiterated that it was his "conclusion" that the baggies of drugs found in Chacon's room were not "packaged for sale."
In sum, although Damico was not permitted to give his opinion whether all of the evidence, considered together, suggested that Chacon possessed drugs for the purpose of sale, defense counsel elicited substantially identical testimony during the course of her direct examination. Moreover, in cross-examination, Damico directly stated that he did not believe the baggies of drugs found in Chacon's possession were intended for sale. Because Damico's testimony "provided the jury with . . . the essence of the stri[c]ken testimony," it is not reasonably probable that a result more favorable to defendant would have been achieved in the absence of the error. (People v. Rangel (1992) 11 Cal.App.4th 291, 303 [finding harmless error under more stringent Chapman standard "where the essence of the stri[c]ken testimony" was elicited through other means].)
We further note that the trial court struck testimony from Deputies Carrillo and Ferrier indicating that they believed Chacon possessed the drugs for the purpose of sale and explained to the jury that "neither side had somebody saying I'm an expert, ultimate issue decided. That's out of it. When they said that's my ultimate opinion, that's on the ultimate issue, that's gone. But everything else is there. All other evidence they've presented by either side on the issue can be considered by you in deciding the case." As a result, neither the defense nor the prosecution was permitted to rely on expert opinion regarding the ultimate issue of whether Chacon possessed cocaine for the purposes of sale.
C. The Trial Court Did Not Err in Correcting Defense Counsel's Description of the Reasonable Doubt Standard
Finally, Chacon argues that the trial court committed prejudicial error during closing argument when it corrected a statement Chacon's counsel made regarding the prosecution's burden of proof. Chacon cites the following exchange:
COUNSEL: [I]f you have a reasonable doubt, if you have a doubt lingering as to why Mr. Andres Chacon possessed that cocaine, and if you're not certain that it was for sale, then you must always do the right thing -Chacon contends that the trial court's statement "constituted constitutional error because [counsel's] use of the word 'certain' was correct because 'certain beyond a reasonable doubt' is a correct standard." In support, Chacon cites cases that have endorsed the use of the phrase "certain beyond a reasonable doubt" to describe the reasonable doubt standard.
TRIAL COURT: I've had to say this before. I don't want to have to say it again. "Certain" is not, "Sure" is not the standard. It's proof beyond a reasonable doubt.
The problem with Chacon's argument is that his counsel did not tell the jury it could only convict Chacon if it was "certain beyond a reasonable doubt;" instead, counsel informed the jury that it could not convict Chacon "if you're not certain that it was for sale. . . ." The court, in turn, corrected counsel by noting that the proper standard is not "certain," but rather proof beyond a reasonable doubt.
The phrase "beyond a reasonable doubt" does not mean certainty:
Even the rigid requirement of the reasonable doubt rule stops short of absolute certainty, free of some possible or imaginary doubt, for as has been so often said, "such degree of proof is rarely possible." [Citation.](People v. Andrews (1965) 234 Cal.App.2d 69, 76-77; see also People v. Brigham (1979) 25 Cal.3d 283, 303 ["'absolute certainty' . . . is not the degree of belief necessary to convict"].) Therefore, the trial court did not err in making clear that the appropriate standard was not certainty, but rather was proof beyond a reasonable doubt.
Chacon further contends that the cumulative impact of the trial court's alleged errors in this case require reversal. (See generally People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) As discussed above, we find that the trial court committed only one error, which related to Damico's expert testimony, and that the error was harmless. Accordingly, there is no need to conduct a cumulative impact analysis.
D. The Trial Court Failed to Impose Mandatory Fines and Penalties
The Attorney General argues that the trial court failed to impose the following mandatory penalties and fees at sentencing:
• Criminal laboratory analysis fee: Health and Safety Code section 11372.5, subdivision (a), provides that every person convicted of an enumerated drug-related offense "shall pay a criminal laboratory analysis fee in the amount of fifty dollars . . . for each separate offense."
• State penalty: Penal Code section 1464, subdivision (a) provides "there shall be levied a state penalty in the amount of ten dollars . . . for every ten dollars . . . or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . ."
• State surcharge: Penal Code section 1465.7, subdivision (a), which imposes a 20 percent state surcharge "on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464."
• County penalty: Government Code section 76000, subdivision (a)(1), provides that "in each county there shall be levied an additional penalty in the amount of seven dollars . . . for every ten dollars . . . upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. . . ."
• Court Construction Fee: Government Code section 70372, subdivision (a)(1), which provides "there shall be levied a state court construction penalty, in the amount of five dollars . . . for every ten dollars . . . , upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."
If a fee or penalty is mandatory, the appellate court may "properly correct[] the trial court's omission of [such fees or penalties] even though the People raised the issue for the first time on appeal." (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 (Talibdeen); see also People v. Turner (2002) 96 Cal.App.4th 1409, 1413 ["Because the fee and penalty assessments are mandatory, this court is empowered to order defendant to pay them even though the People made no objection in the trial court"].) All of the fees and penalties the Attorney General has identified are mandatory in nature and should have been imposed by the trial court at the time of sentencing. (See Talibdeen, supra, 27 Cal.4th at p. 1157 [applying Pen. Code, § 1464, subd. (a); Gov. Code, § 76000, subd. (a)]; People v. Taylor (2004) 118 Cal.App.4th 454, 456-458 (Taylor) [applying Health & Saf. Code, § 11372.5; Pen. Code, §§ 1464 & 1465.7; Gov. Code, §§ 76000, subd. (a) & 70372]; People v. McCoy (2007) 156 Cal.App.4th 1246 [describing how Pen. Code, § 1465.7 applies in Los Angeles County].)
We therefore remand the case for the limited purpose of calculating Chacon's additional penalties and fees under Health & Safety Code section 11372.5, Penal Code sections 1464 and 1465.7 and Government Code sections 76000 and 70372.
We remand the matter, rather than simply modify the judgment to reflect the correct amounts of penalties (see Taylor, supra, 118 Cal.App.4th at p. 456), because there appears to be a discrepancy regarding Chacon's total amount of potential penalties and fees. The Attorney General asserts that we should impose a separate penalty and assessment under each of the statutes listed above for Chacon's conviction of possession of cocaine for sale under section 11351 and possession of ecstasy under section 11377, subdivision (a.) However, Chacon was convicted of a third narcotic crime, possession of methamphetamine, and the Attorney General has not explained why similar penalties should not be assessed for that crime. Moreover, Chacon's reply brief does not discuss (or even reference) the Attorney General's assertion that additional penalties and assessments should be imposed. Thus, although it is clear from the record that the trial court failed to impose several mandatory fees and penalties, it is not clear what specific, additional amount Chacon should have been required to pay. We therefore remand for the limited purpose of calculating Chacon's additional fees and penalties.
DISPOSITION
The case is remanded to the trial court to determine the amount of fees and penalties Chacon owes under Health & Safety Code section 11372.5, Penal Code sections 1464 and 1465.7 and Government Code sections 76000 and 70372. The trial court shall prepare a new abstract of judgment that includes the above amounts, and forward a certified copy to the Department of Corrections and Rehabilitation. In all other aspects, the judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J. WOODS, J.