Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA072776, Philip H. Hickok, Judge.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Ray Chester Lewis, appeals from his convictions for: possession of cocaine base for sale (Health & Saf. Code, § 11351.5); possession of a controlled substance for sale (Health & Saf. Code, § 11351); 20 counts of firearm possession by a felon (Pen. Code, § 12021, subd. (a)(1)); and ammunition possession. (§ 12316, subd. (b)(1).) Defendant argues: he was subjected to vindictive sentencing; he was denied the effective assistance of counsel; and he was improperly sentenced to the upper term as to count 2. We affirm the judgment with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On August 30, 2002, Los Angeles County Sheriff Detective Richard Martinez assisted Deputies Steven Trammell, Mark Schultz, Fredrick Morse, and Daniel Tobin in serving a search warrant at defendant’s home in Ontario, California. Defendant was present along with two or three young children and one older adult. The search uncovered more than 20 firearms, including: rifles; assault rifles; handguns; assault pistols; and an assault rifle with a bayonet attached. Also, firearm magazines and assorted types of ammunition were found during the search. In addition, over four kilograms of powder cocaine, more than 200 grams of cocaine base, marijuana, a digital scale, plastic baggies, and over $47,000 in cash were found in defendant’s home. The assault rifle with the attached bayonet was found in the closet of the children’s bedroom.
First, defendant argues that now Retired Judge Philip H. Hickok improperly imposed a term that was more than twice the sentence originally imposed by Judge Larry S. Knupp for the same offenses. Preliminarily, defendant’s failure to raise this issue at the time he was sentenced constitutes a waiver of the issue on appeal. (People v. Williams (1998) 61 Cal.App.4th 649, 654-656, citing People v. Scott (1994) 9 Cal.4th 331, 353.) Notwithstanding that forfeiture, defendant’s claim lacks merit. On July 24, 2003, defendant pled guilty before Judge Knupp to: possession of a controlled substance for sale (count 2); possession of cocaine base for sale (count 1); marijuana possession (count 3); and 26 counts of firearm possession by a felon (counts 4-29). At the time of his plea, defendant acknowledged that the maximum punishment in this case was 32 years. Defendant was sentenced by Judge Knupp to: the high term of 4 years in state prison on count 2; the high term of 5 years as to count 1, to be served concurrently with count 2; the high term of 3 years as to count 3, to be served concurrently with count 2; and the high term of 3 years as to counts 4 through 29, to be served concurrently with count 2. In other words, defendant, an ex-convict, was to be incarcerated for a total of 4 years for 21 felony offenses because of Judge Knupp’s selection of concurrent sentencing as to all counts. In addition, Judge Knupp imposed a five-year enhancement pursuant to section 12022, subdivision (c). Judge Knupp also imposed a five-year enhancement pursuant to Health and Safety Code section 11370.4, subdivision (a). The total term was 14 years.
On October 21, 2004, defendant filed a motion to secure the transcripts of his guilty plea and sentencing. The motion was granted on the same date. Thereafter, defendant filed a habeas corpus petition. Judge Knupp denied the habeas corpus petition on November 5, 2004. On November 24, 2004, defendant filed a habeas corpus petition in this court. On December 9, 2004, we issued an order to show cause in case No. B179393 returnable before Judge Knupp to consider defendant’s habeas corpus petition dated November 24, 2004. (In re Lewis (Nov. 24, 2004, B179393) [nonpub. order].) On June 10, 2005, Judge Knupp granted the habeas corpus petition and vacated defendant’s conviction on all counts.
Thereafter, the matter was set for jury trial and defendant was convicted as noted. Defendant was sentenced by Judge Hickok to a total term of 28 years, 8 months, as follows: 4 years as to count 2; 1 year, 4 months as to count 1, to be served consecutively to count 2; 8 months as to each of counts 4-23, to be served consecutively to count 2; and 2 five-year enhancements pursuant to section 12022, subdivision (c) and Health and Safety Code section 11370, subdivision (a).
Defendant argues the trial court violated his Fourteenth Amendment due process right not to be subjected to vindictive sentencing following his successful attack on his conviction or sentence. In North Carolina v. Pearce (1969) 395 U.S. 711, 723 the United States Supreme Court held: “[N]either the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded . . . from imposing a new sentence, whether greater or less than the original sentence, in light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ [Citation.] Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources.” The Pearce court held, “Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” (Id., at p. 725.) The Pearce Court further held that the judge must set forth the reasons for imposing a more severe sentence upon a defendant after a new trial. (Id., at p. 726.)
The Supreme Court revisited the issue in Alabama v. Smith (1989) 490 U.S. 794, 795, holding, “[N]o presumption of vindictiveness arises when the first sentence was based upon a guilty plea, and the second sentence follows a trial.” The Supreme Court held: “Where there is no such reasonable likelihood [that the increased sentence is the product of actual vindictiveness on the part of the sentencing authority], the burden remains upon the defendant to prove actual vindictiveness [citation].” (Id. at pp. 799-800.) In People v. Williams, supra, 61 Cal.App.4th at page 658, our colleagues in the Sixth Appellate District explained: “As Pearce and the analyses in [Alabama v. Smith, supra, 490 U.S. at pages 799-800and Texas v. McCullough (1986) 475 U.S. 134, 139] reveal, the Supreme Court is concerned with situations where the judge has a stake in the original outcome and the defendant successfully reverses it, thereby forcing the judge to redo what he or she had done. In such situations, the judge who has been reversed may engage in self-vindication.”
As noted, defendant was originally sentenced by Judge Knupp. At that time, Judge Knupp read and considered Deputy District Attorney Laura Walton-Everett’s sentencing memorandum. After we issued an order to show cause, defendant’s habeas corpus petition was granted by Judge Knupp on June 10, 2005. The writ of habeas corpus set aside defendant’s guilty pleas. Defendant’s subsequent jury trial was before Judge Hickok. Judge Hickok sentenced defendant after reviewing Deputy District Attorney Olivia Rosales’s sentencing memorandum and hearing the arguments of the lawyers.
The probation report indicated defendant had been found as a juvenile to have committed: misdemeanor evading (Veh. Code, § 2800.10); cocaine base possession; attempted murder (§§ 187, 664); and assault with a deadly weapon. (§ 245, subd. (a)(1).) As a result of these sustained delinquency petitions in 1988 and 1989, defendant was ultimately committed to the youth authority. Defendant was paroled from the youth authority on July 3, 1991. As an adult, defendant was first convicted of misdemeanor firearm possession by a specified former ward of the court and required to serve 60 days in the county jail as a condition of 24 months probation. (§ 120221, subd. (e).) On April 3, 1996, defendant was arrested and later convicted of possession of concentrated cannabis in violation of Health and Safety Code section 11357, subdivision (c). Defendant was required to serve six months in the county jail. On April 10, 2002, defendant was arrested for firearm possession by a convicted felon in violation of section 120221, subdivision (a). Eventually, defendant was convicted of possession of a specified controlled substance while armed with a firearm in violation of Health and Safety Code section 11370.1, subdivision (a). Defendant was placed upon probation. Shortly after being released from custody, he was arrested in connection with the present offense. On September 12, 2002, defendant’s probation was revoked. According to the probation officer, defendant was a ‘“ major player/leader”’ in a street gang in Compton. The probation officer found four aggravating factors and no mitigating circumstances to be present.
Judge Hickok reasoned: “The court really can’t speculate as to [the] purpose for having so many guns in one location. Let alone the fact they may have been split up. Just the number of guns at the Ontario address, the ammunition out there, counsel is correct, it could be for other types of crimes it could may have been committed. [sic] They weren’t. Who knows why all those guns were there. There’s evidence they could be used. There was plenty of ammunition to go along with them. [¶] In any event, the court is going to go along with the sentencing structure as suggested by the District Attorney’s office here. It happens to coincide with what I was thinking, also, [defendant]. [¶] I was going to use count 2, the 11351 [Health & Saf. Code] charge, to be the base or principal term in this matter. That carries a sentencing range of two years, three years and four years. I’m going to sentence you to four years on that count. That’s the high term. The reason I’m going to impose that high term here is because of the planning, the sophistication, there are more than 4 kilos of the drugs, more than $60,000 in the location, the other professional attributes of this operation. It all lends itself to me making a finding there was a great degree of sophistication involved in this operation. So under California Rules of Court 4.421(a)(8) that’s one of the reasons. [¶] The possession of a gun, the 12022 (c) allegation carries a range of three years, four years and five years. I will impose the five years on that enhancement to run consecutive to the time you are doing. Again, that’s because I’ve noticed here kind of a pattern of criminal conduct on your behalf, which it indicates you are a [serious] danger to society. I have to protect society against this. So I will impose that additional five years in this 4.421(b)(1) as rationale for that.” Later, in imposing consecutive eight-month sentences for each of the felon in possession of a firearm charges, the trial court noted: “Again, I looked at your history. Your prior convictions as an adult or juvenile are numerous. The criminal conduct has not been detoured by probation or state prison time. So that warrants sentencing to run consecutive. . . . [¶] Now, there are other factors in aggravation which are available which the court has not used to enhance the sentence or to justify high term on count 2. Such as you were on probation at the time these crimes were committed. Such as the fact that your prior stints on probation or parole were unsatisfactory.”
The facts of this case, like those in Alabama v. Smith, supra, 490 U.S. at page 795 involve the withdrawal of a guilty plea and the imposition of a longer sentence following a subsequent trial. There is no presumption of vindictiveness. (Id. at p. 795; see People v. Aragon (1992) 11 Cal.App.4th 749, 760.) This case involved sentences imposed by two different judges. Further, any fair minded review of the evidence indicates defendant received a very generous 14-year sentence from Judge Knupp. Defendant was on felony probation and had previously been committed to what is now the Division of Juvenile Justice of the Department of Corrections and Rehabilitation. He was convicted of 23 felonies and received a total of only 4 years of incarceration plus 10 years worth of enhancements. Judge Knupp selected the aggravated term as to count 2, possession of cocaine for purposes of sale, because: defendant was convicted of other crimes for which concurrent sentences were imposed; defendant was a serious danger to society; defendant had engaged in a pattern of violent conduct; defendant had previously been the subject of sustained juvenile delinquency petitions for aggravated assault and attempted murder; defendant’s prior convictions were numerous and of increasing seriousness; and defendant was on probation when he committed the present offense. In addition to the cocaine powder, cocaine base, and marijuana in his residence, defendant was found in possession of 21 separate firearms and ammunition. When the search warrant was served on his residence, which was awash in drugs and guns, either 2 or 3 young children were present. Yet for the 23 felony offenses of which defendant was convicted, he received only what amounted to a 4-year term plus the 2 five-year enhancements. The point is that Judge Hickok could have, and obviously did, view defendant’s conduct as warranting a much more serious sentence than Judge Knupp. Fair-minded judges may disagree as to the proper sentence and there was nothing wrong nor unconstitutional when Judge Hickok chose to impose a substantially lengthier term than Judge Knupp. Following a jury trial, Judge Hickok had the opportunity to “gather a fuller appreciation of the nature and extent of the crimes charged” as well as evaluate defendant’s criminal history. (See Alabama v. Smith, supra, 490 U.S. at p. 801; Texas v. McCullough, supra, 475 U.S. at p. 141.) Defendant received an error-free trial; a course of events inconsistent with a judge motivated by unconstitutional vindictiveness. Defendant has not proven the sentence imposed by Judge Hickok was motivated by any vindictiveness.
Second, defendant argues he was denied the effective assistance of counsel. As noted, any vindictive prosecution contention has been forfeited. Defense counsel did not interpose a due process based vindictive prosecution or sentencing contention. Defendant argues this amounted to ineffective assistance by counsel. This contention has no merit. The Supreme Court has held: “A defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsel’s performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome. [Citations.]” (In re Ross (1995) 10 Cal.4th 184, 201; see also Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) In this case, there was no evidence of vindictiveness. In the absence of such evidence, defense counsel was under no duty to make meritless motions or contentions. (People v. Frye (1998) 18 Cal.4th 894, 985; People v. Price (1991) 1 Cal.4th 324, 387.) Further, defendant has failed to sustain his prejudice burden. There is no reasonable probability that a shorter sentence would have been imposed because: there is no evidence Judge Hickok acted out of vindictiveness; a large amount of weapons and narcotics were recovered; and defendant’s prior record was serious.
Third, we asked the parties to brief the issue of the effect of Judge Knupp’s decision to grant defendant’s habeas corpus petition. As noted, on July 24, 2003, defendant pled guilty as part of an “open plea” to: possession of a controlled substance for sale (count 2); possession of cocaine base for sale (count 1); marijuana possession (count 3); and 26 counts of firearm possession by a felon (counts 4-29). The prosecutor advised defendant: “I must also advise you that the maximum punishment in this case is 32 years in state prison. However, because you are pleading open to the court, you can receive a probationary sentence or any type of prison sentence up to the maximum punishment of 32 years.” (Italics added.) Defendant acknowledged that he understood the foregoing. Judge Knupp sentenced defendant to: the high term of 4 years in state prison on count 2; the high term of 5 years as to count 1, to be served concurrently with count 2; the high term of 3 years as to count 3, to be served concurrently with count 2; and the high term of 3 years as to counts 4 through 29, to be served concurrently with count 2. In other words, defendant, an ex-convict, was to be incarcerated for a total of 4 years for 21 felony offenses plus 10 years for 2 enhancements because of Judge Knupp’s selection of concurrent sentencing as to all counts. The total term was 14 years. However, the abstract of judgment incorrectly stated two Penal Code section 12022, subdivision (c) enhancements were imposed as to count 2.
On October 21, 2004, defendant filed a motion to secure the transcripts of his guilty plea and sentencing. The motion was granted on the same date. Thereafter, defendant filed a habeas corpus petition. Judge Knupp denied the habeas corpus petition on November 5, 2004.
On November 24, 2004, defendant filed a habeas corpus petition in this court. In that petition, defendant alleged three grounds for relief. Defendant’s first claim alleged Judge Knupp improperly: imposed a four-year term as to count 2 two; imposed two five-year Penal Code section 12022, subdivision (c) enhancements as to count 2, the principal term, rather than one Penal Code section 12022, subdivision (c) enhancement as to count 1 and one five-year Health and Safety Code section 11370.4 enhancement as to count 2. Defendant further alleged that Judge Knupp’s exercise of sentencing discretion violated the specific terms of the written plea agreement as well as the Due Process and Double Jeopardy clauses of the United States Constitution. Defendant’s second ground for relief alleged ineffective assistance of counsel in that no objection was interposed to Judge Knupp’s improper exercise of sentencing discretion. Defendant’s third ground for relief alleged that the plea agreement as written and as explained by the prosecutor, included the possibility of a grant of probation as a sentencing choice. (In fact, petitioner was ineligible for probation pursuant to Health and Safety Code section 11370, subdivision (a) because he had previously been convicted of a specified narcotics offense.) The petition alleged, “Petitioner was induced by misrepresentations that the court could sentence him to probation and that counsel would argue for probation to enter a plea of guilty.” Defendant argued that this false representation violated both his rights to due process and effective assistance of counsel. Defendant’s declaration asserted: “That my attorney and the prosecutor misled me as to my eligibility for probation and the probability of probation as a sentence the court would impose. Had I known the truth respecting this consideration, I would not have accepted the plea agreement ….” The petition’s prayer for relief states: “Petitioner request[s] an evidentiary hearing to establish the facts that: (1) He was affirmatively misled into believing that he was eligible for a sentence of probation; [¶] (2) That counsel promised to argue for probation; [¶] That petitioner relied on these misrepresentations to his [detriment] and would not otherwise have accepted the terms of the plea agreement.” On December 9, 2004, as noted, we issued an order to show cause returnable in the superior court. (In re Lewis, supra.)
At a hearing on April 11, 2005, defendant’s appointed counsel, Andrew Stein, agreed there were grounds upon which to withdraw the plea. But Mr. Stein believed it would be foolish for defendant to do so. Mr. Stein stated: “This is not a plea bargain that he’s asking to set aside. He doesn’t understand that. But I want him to hear it. This was not a plea bargain. This was an open plea to you, which means you could give him anywhere up to 32 years. The 14 years that he got based on the state of law that is in this country is a very fair sentence. . . . He thinks he has a contract to enforce under specific performance. There is no contract. There is no plea bargain. So there is no specific performance to enforce. [¶] I want him to hear these things because if he wants, we are going to ask the People to file a response here. And it’s by my belief that if he has this withdrawn, I don’t think the law says he can get more time if he goes to trial. It’s a totally different thing than having a trial being punished for exercising your right to trial. He never had his right to trial. All of the facts didn’t come out. I’ve explained to him that if he withdraws the plea and if there were some sentencing irregularities, if the wrong counts were stated that didn’t match what was said, there were about a dozen different ways to get to the 14 years, we believe, legally, without violating any of his rights. [¶] So I want him to hear this because I want him to make an informed decision whether he wants to take the 14 years and go back to prison or whether he wants to proceed knowing there is a distinct possibility that he would get more if this petition is actually granted by this court.” Thereafter, Mr. Stein inquired of defendant, “Do you want to proceed and have the People file a response or do you just want to go back to prison and withdraw your petition and serve your 14 years?” Defendant responded, “I’m going to ask for the People to file a response.”
On June 10, 2005, Judge Knupp noted that the prosecution agreed that the petition was well taken. Thereafter, Judge Knupp granted the habeas corpus petition and vacated defendant’s conviction on all counts. Defendant argued: “Excuse me, your honor. I didn’t ask to vacate the plea. That wasn’t the point.” Judge Knupp explained: “That’s what you get, sir. We have talked about this extensively and you simply don’t understand. But Mr. Stein has told you. I have told you. [The prosecutor] has told you. That’s the only relief I can bring is that your plea is vacated.” The prosecutor then explained further: “Also, one of the previous court appearances, I think Mr. Sisman made the appearance, I was here, Mr. Stein was practically on his hands and knees explaining to [defendant] that if he went forward with the relief he was requesting, he had an exposure in excess of 30 years. And I don’t know what [defendant’s] expectations were. I understand that the plea is being set aside completely because the [prosecutor] who took the plea, in the language that was given to you, explained to you during the course of the plea, held out the possibility of probation. That’s why this whole plea is being undone because you were given bad information at the time of the plea. [¶] Prior to the court granting the habeas corpus petition, Mr. Stein explained very carefully that you’re not going to be getting probation next time around. You have a sentence, a potential sentence in excess of, I believe, 30 years. And you know, all of this was explained to you in detail.” Defendant then again stated, “I don’t want my plea set aside.” Thereafter, Judge Knupp set aside the plea and the matter was set for jury trial. Following defendant’s conviction, as noted, he received an aggregate prison term of 28 years, 8 months.
Defendant was afforded counsel and advisement at the time he appeared on April 11, 2005. Defendant was advised that by pursuing his petition for writ of habeas corpus, he risked the possibility of retrial, conviction, and a sentence of up to 32 years. When he pled guilty on July 24, 2003, defendant was improperly advised he was eligible for probation. In fact, defendant was expressly ineligible for probation pursuant to the provisions of the Health and Safety Code section 11370, subdivision (a). Judge Knupp’s decision to set aside defendant’s plea is reviewed for an abuse of discretion. (People v. Shaw (1998) 64 Cal.App.4th 492, 496; People v. Harvey (1984) 151 Cal.App.3d 660, 666-667.) Defendant expressly asserted under oath that had he known he was ineligible for probation, he never would have entered into the plea agreement. Judge Knupp did not abuse his discretion in accepting that under oath statement concerning the essential aspect of probation eligibility. (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1490; People v. Shaw, supra, 64 Cal.App.4th at pp. 495-496.)
Defendant’s contention that Mr. Stein acted in a constitutionally deficient manner is meritless. The California Supreme Court has held that in ruling on the effectiveness of counsel, the reviewing court must also consider the record of what counsel did do at trial. (In re Ross, supra, 10 Cal.4th at p. 209; People v. Miranda (1987) 44 Cal.3d 57, 121.) Here, Mr. Stein explicitly warned defendant of the serious consequences that would result if the habeas corpus petition was not withdrawn. Defendant was afforded effective assistance of counsel, which he chose to ignore.
Fourth, citing Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 868-871] and Blakely v. Washington (2004) 542 U.S. 296, 301, defendant argues that his Sixth and Fourteenth Amendment right to a fair and impartial trial by jury was violated by the imposition of the upper term as to count 2. After defendant was sentenced, the United States Supreme Court issued its opinion in Cunningham v. California, supra, ___ U.S. at p. ___ [127 S.Ct. at p. 860], holding the California determinate sentencing law improperly allowed the trial judge, rather than a jury, authority to find certain facts that are relied upon in imposing the upper term. The Cunningham court further held, “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Ibid.)
Thereafter, the California Supreme Court in People v. Black (2007) 41 Cal.4th 799, 808-820, examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California, supra, 549 U.S. at pages ___, ___ [126 S.Ct. at pp. 863-868]. Our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, 41 Cal.4th at p. 812, original italics.) The Black court further held, “It follows 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.” (People v. Black, supra, 41 Cal.4th at p. 816.) In this case, Judge Hickok noted, while discussing consecutive sentencing, that defendant had numerous prior convictions as an adult or juvenile. In addition, defendant was on probation at the time the instant crimes occurred. Although Judge Hickok did not rely upon those factors in imposing the upper term as to count 2, they constituted legally sufficient aggravating circumstances for doing so.
Moreover, even if error, it was harmless. (Washington v. Recuenco (2006) 548 U.S. ___, ___ [126 S.Ct. 2546, 2553]; Chapman v. California (1967) 386 U.S. 18, 24.) The California Supreme Court held: “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (People v. Sandoval (2007) 41 Cal.4th 825, 839; see Washington v. Recuenco, supra, 548 U.S. at p. __ [126 S.Ct. at p. 2553].) Here, applying the beyond a reasonable doubt standard, unquestionably the jury would have found defendant’s conduct involved planning and sophistication within the meaning of California Rules of Court, rule 4.421(a)(8). Defendant can hardly argue he did not plan to possess all the drugs, guns, ammunition, and money. Any error was harmless beyond a reasonable doubt.
Fifth, following our request for further briefing, the Attorney General argues that Judge Hickok should have imposed additional penalty assessments, state court construction fees, court security fees, and surcharges on the various fines imposed. We agree in part. Judge Hickok imposed a $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee. Judge Hickok was also obligated to impose penalty assessments pursuant to section 1464, subdivision (a) in the sum of $50 and Government Code section 76000, subdivision (a) in the amount of $35 on the Health and Safety Code section 11372.5, subdivision (a) laboratory fee. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) Judge Hickok was also obligated to impose a $10 state surcharge pursuant to Penal Code section 1465.7, subdivision (a) on the Health and Safety Code section 11372.5, subdivision (a) fee. (People v. McCoy (2007) 156 Cal.App.4th 1246, __; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) Moreover, Judge Hickok should have imposed a $20 section 1465.8, subdivision (a) court security fee as to each count. (See People v. Alford (2007) 42 Cal.4th 749, ___; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) At sentencing, Judge Hickok imposed but one court security fee. Twenty-three such fees should have been imposed. Judge Hickok is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
Penal Code Section 1465.7, subdivision (a) provides, “A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.”
However, no Government Code section 70372, subdivision (a) state court construction penalty may be imposed. Government Code section 70372, subdivision (a) was part of Senate Bill No. 1732 (2001-2002 Reg. Sess.) signed by former Governor Joseph Graham Davis on September 9, 2002. Senate Bill No. 1732 (2001-2002 Reg. Sess.) did not contain an urgency clause. Therefore, Government Code section 70372, subdivision (a) went into effect on January 1, 2003. (Cal. Const., art. IV, § 8, subd. (c)(1); People v. Jenkins (1995) 35 Cal.4th 669, 673.) The search of defendant’s home which uncovered the narcotics, weapons, and ammunition occurred on August 30, 2002. Defendant’s possession offenses were committed on August 30, 2002, before the January 1, 2003 effective date of Government Code section 70372, subdivision (a). Thus, to impose the Government Code section 70372, subdivision (a) state court construction penalty would violate ex post facto principles. (People v. Alford, supra, 42 Cal.4th at p. __; People v. Wallace (2004) 120 Cal.App.4th 867, 877.)
The judgment is modified to impose: a $50 penalty assessment pursuant to Penal Code section 1464, subdivision (a); a $35 penalty assessment pursuant to Government Code section 76000, subdivision (a); and a $10 state surcharge pursuant to Penal Code section 1465.7, subdivision (a). In addition a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1), is imposed as to each of 23 counts. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.