Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. KA086806, Tia Fisher, Judge.
Jean Ballantine, 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, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Columbus Eugene Crossland appeals the judgment entered following his conviction by jury of possession for sale of a controlled substance. (Health & Saf. Code, § 11378.) We affirm the judgment as modified to reflect a prior narcotics related conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c), rather than subdivision (a), and to reflect penalty assessments and surcharges totaling $130 with respect to the $50 laboratory analysis fee imposed pursuant to Health and Safety Code section 11372.5, subdivision (a).
FACTS AND PROCEDURAL BACKGROUND
1. The underlying offense.
On the evening of May 8, 2009, Pomona police officers and federal agents went to an alley behind a townhouse on Benedict Street in Pomona and saw Crossland standing in the southwest corner of a two-car garage. When one of the officers called to Crossland, Crossland moved to the rear of a disabled vehicle parked on the north side of the garage. After Crossland exited the garage, the officers found a shaving kit in the trunk of the disabled vehicle that contained two digital scales, a glass pipe, one ziplock bag containing 12.18 grams of methamphetamine and another bag containing 3.17 grams of a cutting agent, commonly known as DMSO. Crossland had no money in his wallet but had $420 in his sock consisting of 17 $20 bills, three $10 bills, and ten $5 bills.
Pomona Police Officer James Seuss testified that, in his opinion, this was a “standard... methamphetamine sales case.”
A jury convicted Crossland of possession for sale of a controlled substance.
2. Sentencing.
The information alleged Crossland had two prior narcotics related convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), namely, a 1989 conviction of violating Health and Safety Code section 11352, and a 2005 conviction of violating Health and Safety Code section 11378.5. Crossland waived jury trial on the allegations and the trial court found the allegations true.
The trial court sentenced Crossland to the upper term of three years for the current offense, citing Crossland’s extensive history of drug offenses. The trial court imposed one of the prior conviction enhancements under Health and Safety Code section 11370.2, subdivision (a) and struck the other to avoid dual use of facts.
The trial court ordered Crossland to pay, inter alia, a $50 laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a), plus penalty assessments. The trial court did not specify the penalty assessments. The minute order associated with the sentencing hearing and the abstract of judgment reflect a total financial obligation of $190 attributable to the laboratory analysis fee imposed pursuant to Health and Safety Code section 11372.5, subdivision (a).
CONTENTIONS
Crossland contends the penalty assessments associated with the laboratory analysis fee must be reduced and the evidence was insufficient to support the enhancement imposed pursuant to Health and Safety Code section 11370.2, subdivision (a).
DISCUSSION
1. The penalty assessments attributable to the laboratory analysis fee must be reduced.
As indicated, the trial court ordered Crossland to pay a $50 laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a), plus penalty assessments but did not specify the penalty assessments. The minute order associated with the sentencing hearing and the abstract of judgment reflect a total financial obligation attributable to the laboratory analysis fee of $190, which suggests assessments and surcharges of $140.
Crossland contends the assessments and surcharges should total $130. Crossland asks this court to reduce the total obligation attributable to the laboratory analysis fee, penalty assessments and state surcharges to $180. (See People v. High (2004) 119 Cal.App.4th 1192, 1200.)
The People concede the abstract of judgment does not correctly reflect the applicable penalty assessments. It appears this concession is well taken.
The penalty assessments and surcharges that may be imposed upon a $50 laboratory analysis fee under Health and Safety Code section 11372.5 are as follows: a $50 penalty under Penal Code section 1464, subdivision (a)(1), and a $35 penalty under Government Code section 76000, subdivision (a)(1) (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153, fn. 2.); a $15 court construction fee under Government Code section 70372, subdivision (a) and section 70375, subdivision (b) (People v. McCoy (2007) 156 Cal.App.4th 1246, 1254); a $10 penalty assessment under Government Code section 76000.5, subdivision (a)(1), a $5 deoxyribonucleic acid penalty pursuant to Government Code section 76104.6, subdivision (a)(1), and a $5 deoxyribonucleic acid state-only penalty under Government Code section 76104.7, subdivision (a) (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530); and, a 20 percent state surcharge of $10 under Penal Code section 1465.7, subdivision (a) (People v. Taylor (2004) 118 Cal.App.4th 454, 460).
Thus, imposition of a $50 laboratory fee under Health and Safety Code section 11372.5, subdivision (a), results in $130 in penalty assessments, fees and surcharges for a total financial obligation attributable to the laboratory analysis fee of $180. We shall order the abstract of judgment corrected to reflect the indicated penalty assessments and surcharges and to reduce the total financial obligation attributable to the laboratory analysis fee to $180.
2. The abstract of judgment must be amended to reflect a prior narcotics related conviction under Health and Safety Code section 11370.2, subdivision (c).
Health and Safety Code section 11370.2, subdivision (a) provides that any person who is convicted of a violation of Health and Safety Code section 11351, 11351.5, or 11352, shall receive a consecutive term of three years in state prison for each prior conviction of various enumerated offenses, including violations of Health and Safety Code sections 11352 and 11378.5. As indicated previously, the information alleged two such prior convictions, a conviction of violating Health and Safety Code section 11352 in 1989, and a conviction of violating Health and Safety Code section 11378.5 in 2005. The trial court found both true, struck one and imposed the other.
Health & Safety Code section 11370.2, subdivision (a) provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”
Crossland contends the enhancement must be set aside, citing People v. Botello (2010) 183 Cal.App.4th 1014. Crossland notes he was not convicted of a violation of Health and Safety Code section 11351, 11351.5, or 11352. Rather, he was convicted of violating Health and Safety Code section 11378. Thus, the enhancement under Health and Safety Code section 11370.2, subdivision (a), is inapplicable.
The People agree Health and Safety Code section 11370.2, subdivision (a) does not apply because Crossland was convicted of violating Health and Safety Code section 11378, rather than section 11351, 11351.5, or 11352. However, they contend the abstract of judgment should be corrected to reflect a three-year enhancement under Health and Safety Code section 11370.2, subdivision (c), which does apply where the defendant is convicted of violating Health and Safety Code section 11378.
Health and Safety Code section 11370.2, subdivision (c) provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.
The People seek to apply the rule that, where an accusatory pleading erroneously cites an incorrect subdivision, the error will be deemed harmless if the pleading contains factual averments that do not mislead or prejudice the accused. (People v. Thomas (1987) 43 Cal.3d 818, 824-828 [defendant properly convicted of involuntary manslaughter although the information alleged voluntary manslaughter]; People v. Siegel (1961) 198 Cal.App.2d 676, 683-684 [a defendant convicted of attempted escape not prejudiced by allegation under Penal Code section 664 rather than more specific section relating to escape from jail under Penal Code section 4532, subd. (b), noting the charging language of the information would be the same under either section]; People v. Rivers (1961) 188 Cal.App.2d 189, 195 [defendant properly convicted of unlawful sale of narcotics based on information alleging possession where it was “clear from the language of the information... that the defendant knew he was being charged with the sale of narcotics.”]; People v. Flynn (1995) 31 Cal.App.4th 1387, 1392-1395 [prior conviction properly found to be a serious felony under Penal Code section 1192.7, subdivision (c)(23) (personal use of a dangerous weapon) although the information alleged a serious felony under subdivision (c)(8) (personal infliction of great bodily injury)].)
Crossland responds the three-year enhancement cannot be saved under Health and Safety Code section 11370.2, subdivision (c), as that would violate the pleading and proof requirement of section 11370.2, subdivision (d), which states: “The enhancements provided for in this section shall be pleaded and proven as provided by law.” (Health & Saf. Code, § 11370.2, subd. (d).) Crossland additionally asserts imposition of a three-year enhancement under Health and Safety Code section 11370.2, subdivision (c) would violate his due process right to fair notice of the specific sentence enhancement the People seek to impose. (People v. Botello, supra, 183 Cal.App.4th at p. 1027.) He further claims the People have forfeited the right rely on Health and Safety Code section 11370.2, subdivision (c) for the first time on appeal. (People v. Botello, at p. 1027-1029.)
We conclude the People have the better argument. Examination of Botello and the cases it cites as controlling, People v. Mancebo (2002) 27 Cal.4th 735 and People v. Arias (2010)182 Cal.App.4th 1009, reveal this case to be distinguishable from the situations presented in those cases.
We start our analysis with Mancebo, a case decided by the California Supreme Court. In Mancebo, the defendant was charged with sex crimes against two victims. As to each victim, the information alleged two circumstances under Penal Code section 667.61, subdivision (e), the One Strike law, in order to trigger the harsher sentencing provisions of that statute. As to one victim, the prosecution alleged the personal use of a firearm under Penal Code section 12022.5 and the kidnapping of the victim (Pen. Code, § 667.61, subds. (e)(1) & (e)(4)). As to the other victim, the prosecution alleged the personal use of a firearm under Penal Code section 12022.5 and the tying or binding of the victim (Pen. Code, § 667.61, subds. (e)(4) & (e)(6)). (People v. Mancebo, supra, 27 Cal.4th at pp. 738, 742.) The prosecution also alleged personal use of a firearm under Penal Code section 12022.5 as a separate enhancement with respect to each victim. (People v. Mancebo, at p. 738.) The jury found each allegation true. The trial court imposed a One Strike term of 25 years to life, plus a separate term of 10 years for firearm use under Penal Code section 12022.5. In order to impose the firearm use enhancement under Penal Code section 12022.5 and maintain the necessary two circumstances under the One Strike law, the court substituted the uncharged One Strike circumstance of multiple victims (Pen. Code, § 667.61, subd. (e)(5)) for the charged circumstance of firearm use.
Mancebo held the “pleading and proof” requirement of Penal Code section 667.61 precluded use of the uncharged multiple victim circumstance to impose a One Strike sentence. (People v. Mancebo, supra, 27 Cal.4th at p. 743.) Mancebo rejected the argument the multiple victim circumstance was sufficiently alleged because the defendant was charged with committing qualifying crimes against more than one victim. (Id. at p. 744.) Mancebo found “the One Strike law clearly applies only if the information alleges facts, and also the ‘circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) [are] pled and proved....’ [Citations.]” (Id. at pp. 744-745,
“Thus, the pleading was inadequate because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under [Penal Code] section 667.61, subdivision (a) and use the circumstance of gun use to secure additional enhancements under [Penal Code] section 12022.5(a).” (People v. Mancebo, supra, 27 Cal.4th at p. 745.) Mancebo noted that, “in addition to the statutory requirements that enhancement provisions be pleaded and proven, a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (Id. at p. 747.)
In Botello, the jury found firearm enhancements under Penal Code section 12022.53, subdivisions (b), (c), and (d) to be true. On appeal, the People conceded the evidence was insufficient to prove that either of the two defendants personally used or discharged a firearm. Thus, the enhancements found true by the jury, each of which required the personal use of a firearm, could not be imposed. The People argued the enhancements could be upheld by applying, for the first time on appeal, Penal Code section 12022.53, subdivision (e)(1), which states: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” (Italics added.)
The People argued Penal Code section 12022.53, subdivision (e)(1) could be utilized to save the firearm enhancements “because both defendants were principals (one the shooter, the other an aider and abettor), because the jury found the gang enhancement under [Penal Code] section 186.22, subdivision (b) to be true, and because one principal, by firing a gun and wounding [a victim], committed an act specified in [Penal Code] section 12022.53, subdivisions (b), (c), and (d).” (People v. Botello, supra, 183 Cal.App.4th at p. 1022.)
Botello rejected this argument. Citing People v. Mancebo, supra, 27 Cal.4th at p. 745, Botello concluded “no factual allegation in the information or pleading in the statutory language informed defendant[s]” they would be subject to the firearm enhancements of Penal Code section 12022.53, subdivisions (b) through (d) by virtue of the circumstances listed in subdivision (e)(1). (People v. Botello, supra, 183 Cal.App.4th at p. 1027.) Botello concluded application of section 12022.53, subdivision (e)(1) for the first time on appeal would violate the statute’s express pleading requirement and the defendants’ due process right to notice that subdivision (e)(1) would be used to increase their sentences.
In People v. Arias, supra, 182 Cal.App.4th 1009, the defendant was sentenced for attempted willful, deliberate and premeditated murder under Penal Code section 664 which provides for a term of life with the possibility of parole if “the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.” (Pen. Code, § 664, subd. (a).) The information in Arias did not allege the attempted murders were willful, deliberate, and premeditated. Further, although the trial court instructed the jury to find separately whether the attempted murders were willful, deliberate, and premeditated, the guilty verdicts did not contain a special finding. Rather, the jury found the defendant guilty of “first degree attempted murder.” (People v. Arias, at p. 1017.) Arias reversed imposition of the increased term, finding “neither the information nor any pleading gave defendant notice that he was potentially subject to the enhanced punishment provision for attempted murder under [Penal Code] section 664, subdivision (a).” (Id. at p. 1019.)
To summarize, in Mancebo the defendant was sentenced to an aggravated term under the One Strike law based on a multiple victim circumstance that was not alleged but which was demonstrated by his conviction of offenses committed against two victims. In Botello, the People sought to apply Penal Code section 12022.53, subdivision (e)(1) for the first time on appeal even though the information did not allege or refer to personal use of a firearm by a principal. In Arias, the defendant was sentenced under the harsher provisions of Penal Code section 664, subdivision (a) which were not pleaded. Thus, in each of these cases, the information omitted an essential allegation.
Here, the information stated the People would seek to subject Crossland to a three-year enhancement based on his prior conviction of violating Health and Safety Code section 11352 in 1989, and his prior conviction of violating Health and Safety Code section 11378.5 in 2005. Thus, unlike the multiple victim circumstance in Mancebo, the use of a firearm by a principal in Botello, or the application of Penal Code section 664, subdivision (a) in Arias, the information in the Crossland’s case stated the factual underpinning for the term enhancement.
Additionally, the information referred specifically to Health and Safety Code section 11370.2. Although the information referred to subdivision (a) rather than subdivision (c), the two subdivisions are worded almost identically. Thus, Crossland knew he would be required to defend an allegation that he previously had been convicted of violating Health and Safety Code section 11352 in 1989 and Health and Safety Code section 11378.5 in 2005, and that, upon a true finding as to either allegation, he would be subjected to a three-year enhancement under Health and Safety Code section 11370.2.
We note Mancebo did not hold “the specific numerical subdivision of a qualifying One Strike circumstance under section 667.61, subdivision (e), necessarily must be pled.” (People v. Mancebo, supra, 27 Cal.4th at pp. 753.) Rather, Mancebo conceded “[a]dequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by reference to its specific numerical designation under subdivision (e), or some combination thereof.” (Id. at p. 754.)
We therefore conclude the allegation under Health and Safety Code section 11370.2, subdivision (a) constituted substantial compliance with the pleading requirement of Health and Safety Code section 11370.2, subdivision (d), and that the factual allegations of the information comported with the notice requirement of due process. Crossland had notice of the possibility his sentence would include a three-year enhancement under Health and Safety Code section 11370.2 and he had an opportunity to defend that allegation. (See People v. Flynn, supra, 31 Cal.App.4th at p. 1393.)
We shall order the abstract of judgment modified to reflect imposition of a prior narcotics related conviction under Health and Safety Code section 11370.2, subdivision (c).
DISPOSITION
The judgment is ordered modified to reflect penalty assessments, fees and surcharges attributable to the laboratory analysis fee in the amounts of $50 under Penal Code section 1464, subdivision (a)(1), $35 under Government Code section 76000, subdivision (a)(1), $15 under Government Code section 70372, subdivision (a) and section 70375, subdivision (b), $10 under Government Code section 76000.5, subdivision (a)(1), $5 pursuant to Government Code section 76104.6, subdivision (a)(1), $5 under Government Code section 76104.7, subdivision (a), and $10 under Penal Code section 1465.7, subdivision (a).
The judgment is also ordered modified to reflect imposition of a three-year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c), rather than Health and Safety Code section 11370.2, subdivision (a). In all other respects, the judgment is affirmed. The clerk of the superior court shall prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: CROSKEY, J., ALDRICH, J.