Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare CountySuper. Ct. No. 164029, Joseph A. Kalashian, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes, and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Wiseman, J., Kane, J.
A jury convicted appellant, Sandro Lopez, of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1) and possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378; count 2). The court imposed the three-year midterm on count 1 and a concurrent two-year midterm on count 2. The court also imposed various fines, fees, and penalty assessments.
On appeal, appellant contends the court (1) erred in failing to stay execution of sentence on count 2 pursuant to Penal Code section 654 (section 654); (2) erred in imposing certain fines and fees; and (3) must issue an amended abstract of judgment which separately lists, and identifies the statutory bases of, the various monetary orders. The People explicitly concede the first two of these points and do not dispute the third. We will modify the judgment to provide that sentence on count 2 is stayed and to correct the erroneous monetary orders, direct the court to issue an amended abstract of judgment, and otherwise affirm.
FACTS
City of Tulare Police Officer Greg Lopez testified at trial to the following. At approximately 3:54 p.m. on April 21, 2006, he effected a “lawful traffic stop” of a car; appellant was the driver and sole occupant of the car. Officer Lopez ordered appellant to get out of the car, appellant eventually complied after the third or fourth such command and the officer placed appellant under “lawful arrest.” Subsequently, in a search of appellant’s person, police found, in appellant’s pocket, a glass pipe, the kind typically used to smoke methamphetamine and crack cocaine. And subsequent to that search, Officer Lopez conducted an inventory search of the car and found, inter alia, a scanner, a live round of ammunition, a digital scale, $600 in cash, and two plastic bags containing a total of 56 grams of a substance which, it was later determined, contained methamphetamine. Fifty-six grams of methamphetamine yields 560 individual doses.
Officer Lopez testified at the preliminary hearing that he had received information at the beginning of his shift on April 21, 2006, that appellant was “wanted for questioning on a case.”
DISCUSSION
Section 654Appellant contends, and the People concede, the court erred in failing to stay execution of sentence on count 2 pursuant to section 654. We agree.
Section 654, subdivision (a) provides, in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
Section 654 prohibits punishment for two offenses arising from the same act or from multiple acts comprising an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) In determining whether a course of conduct consisting of multiple acts is indivisible, we look to the “defendant’s intent and objective .…” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” (Ibid.) On the other hand, “[i]f [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) Where multiple punishments are precluded by section 654, both concurrent and consecutive sentences are prohibited. (People v. Deloza (1998) 18 Cal.4th 585, 592.) Where a sentence violates section 654, the proper appellate response is to “‘stay the sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court.’” (People v. Pitts (1990) 223 Cal.App.3d 1547, 1560.)
Here, appellant harbored but one intent with respect to the possession of the methamphetamine for purposes of sale and the transportation of that same quantity of methamphetamine. (Cf. People v. Solo (1970) 8 Cal.App.3d 201, 208 [where there was no evidence “possession preceded the transportation,” possession and transportation of marijuana “was an individual course of conduct with a single objective”; therefore, section 654 prohibited punishment for both possession of marijuana for sale and transportation of marijuana], disapproved on other grounds in People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 4.) Therefore, imposition of sentence on both counts violated section 654. Accordingly, we will stay sentence on the lesser of the two offenses, viz. count 2. (People v. Pitts, supra, 223 Cal.App.3d at p. 1560.)
Monetary Orders
Appellant contends, and the People concede, the court erroneously imposed certain fees and penalty assessments based on appellant’s conviction on count 2 because the court was required to stay execution of sentence on that count. We agree.
Background
At sentencing, the court ordered that appellant pay a “court security fee” of $40, and “$990 as set forth in paragraph 8 of page 7 of the probation report.” The cited paragraph of the report of the probation officer (RPO) recommends that appellant be ordered to pay $990, consisting of, inter alia, the following: a “Criminal Laboratory Analysis Fee” of $100, pursuant to Health and Safety Code section 11372.5 (section 11372.5); a “Drug Program Fee” of $200, pursuant to Health and Safety Code section 11372.7 (section 11372.7); and a “State Penalty Assessment” of $300, pursuant to Penal Code section 1464, subdivision (a), apparently based on the fees ordered pursuant to sections 11372.5 and 11372.7.
The paragraph of the RPO cited by the court recommends appellant “be ordered to pay the amount of $990,” and lists the components of that amount, in addition to the fees under sections 11372.5 and 11372.7, and the Penal Code section 1464 penalty assessment, as follows: a “Criminal Justice Facilities Construction Fund Penalty Assessment” pursuant to Government Code section 76101 of $135; a “Courthouse Construction Fund Penalty Assessment” pursuant to Government Code section 76100 of $30; a “Dinuba Courthouse Construction Fund Penalty Assessment” pursuant to Government Code section 76100 of $30; a “Maddy Emergency Medical Services Fund Penalty Assessment” pursuant to Government Code section 76104 of $15; a “State Court Construction Penalty Assessment” pursuant to Government Code section 70372 of $90; a “Criminal Fine Surcharge” pursuant to Penal Code section 1465.7 of $30; and a “DNA Identification Fund Penalty Assessment” pursuant to Government Code section 76104.6 of $60.
The RPO also recommends imposition of a “Court Security Fee” of $40, pursuant to Penal Code section 1465.8.
Analysis
Penal Code section 1465.8 requires the imposition of a $20 fee for every conviction of a criminal offense, “[t]o ensure and maintain adequate funding for court security ….” (Pen. Code, § 1465.8, subd. (a)(1).) Here, the court imposed a $40 fee under this statute, indicating two fees of $20 each, attributable to counts 1 and 2, respectively. As the parties agree, imposition of a fee based on a conviction, the sentence for which was required to be stayed under section 654 was error. (Cf. People v. Le (2006) 136 Cal.App.4th 925, 933 [restitution fines are a form of punishment; therefore section 654 ban on multiple punishments applies].) Therefore, the court erred in ordering the $20 fee based on appellant’s count 2 conviction.
Section 11372.5 mandates a $50 criminal laboratory analysis fee for each separate conviction of various offenses, including the instant offenses, i.e., Health and Safety Code sections 11378 and 11379. (§ 11372.5, subd. (a).) Again, the court’s imposition of double the fee for a single offense indicates the court erroneously imposed a fee based on count 2.
Section 11372.7 mandates the imposition of a drug program fee of up to $150 for each separate conviction of certain offenses, including the instant offenses. The court imposed a $200 drug program fee, again indicating it based that fee on both offenses.
Penal Code section 1464 requires a penalty assessment of $10 for every $10 or fraction thereof of “every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses ….” (Pen. Code, § 1464, subd. (a).) The imposition of a $300 penalty assessment based on the total of $300 in fees imposed under sections 11372.5 and 11372.7 indicates that assessment was based, in part, on erroneously imposed fees.
The People, although conceding error, assert that “the case should be remanded for the court to reassess fines and fees.” But here, where it is apparent the court’s error was to simply make monetary orders of twice the correct amount, and therefore the correction necessary is apparent, remand would be an “idle gesture[].” (See, e.g., People v. Blessing (1979) 94 Cal.App.3d 835, 839.) We will order that the fees summarized above be reduced to the amount attributable to count 1only, i.e., one-half of the total amount of each fee. Thus, the Penal Code section 1465.8 fee will be reduced from $40 to $20; the section 11372.5 fee will be reduced from $100 to $50; the section 11372.7 fee will be reduced from $200 to $100; and the Penal Code section 1464, subdivision (a) penalty assessment will be reduced from $300 to $150.
Separate Listing of Monetary Orders
As appellant notes, the abstract of judgment incorrectly states the court’s monetary orders. Specifically, the abstract states that the entire $990 the court imposed on the various fees and penalty assessments set forth above constituted a single “Drug Program Fee” under section 11372.7. Appellant argues, and the People do not dispute, that the abstract must be corrected to reflect only properly imposed monetary orders, and to separately list, and indicate the statutory basis for, each order. We agree.
The court’s minute order contains the same error.
In People v. High (2004) 119 Cal.App.4th 1192, the court remanded with directions that the trial court, inter alia, “separately list, with the statutory basis, all fines, fees and penalties imposed” and prepare an amended abstract of judgment reflecting this and other modifications to the judgment ordered. (Id. at p. 1201, italics added.) The court explained: “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] The abstract of judgment form used here, Judicial Council form CR-290 (rev. Jan. 1, 2003) provides a number of lines for ‘other’ financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, … the fee must be included in the abstract of judgment. [Citation.] … ‘[A] fine is … part of the judgment which the abstract must “ ‘digest or summarize.’ ” [Citations.]’ ” (Id. at p. 1200, italics added.)
Although at the sentencing hearing the court did not separately state each monetary order, as indicated above, the court incorporated by reference the portion of the RPO which listed its recommendations and indicated the statutory basis for each such order. We will direct the court to prepare an amended abstract of judgment containing this information, with the corrections necessary to remedy the court’s error in making monetary orders based on the count 2 conviction.
See footnote 3.
DISPOSITION
The judgment is modified as follows: Execution of sentence on count 2 is stayed pending service of sentence on count 1; the court security fee imposed pursuant to Penal Code section 1465.8 is reduced from $40 to $20; the criminal laboratory analysis fee imposed pursuant to Health and Safety Code section 11372.5, subdivision (a) is reduced from $100 to $50; the drug program fee imposed pursuant to Health and Safety Code section 11372.7, subdivision (a) is reduced from $200 to $100; and the portion of the Penal Code section 1464 penalty assessment attributable to the fees imposed pursuant to Health and Safety Code sections 11372.5, subdivision (a) and 11372.7, subdivision (a) is reduced from $300 to $150. The trial court is directed to prepare an amended minute order and an amended abstract of judgment, with each document reflecting these modifications, separately listing each monetary order and stating the statutory basis for each such order. The trial court is further directed to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.