Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA353797, Marcelita V. Haynes, Judge.
Cheryl Lutz, 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, Lance E. Winters and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Marquinta McGruder, appeals from his conviction for possession of cocaine base for purposes of sale (Health & Saf. Code, § 11351.5) and the trial court’s finding that he was previously convicted of a serious felony and served three prior prison terms. (Pen. Code, §§ 667, subd. (b)-(i), 667.5, subd. (b), 1170.12.) Defendant argues: his self-representation request was improperly denied; the codefendant’s plea agreement was unlawful; the 11-year sentence was an abuse of discretion; and the abstract of judgment must be modified. The Attorney General argues the Health and Safety Code section 11372.5, subdivision (a) laboratory fee must be subject to specified penalty assessments, penalties and a surcharge. We affirm the judgment with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On March 6, 2009, Los Angeles Police Officer Ben McCauley worked in an undercover capacity. Officer McCauley’s assignment was to purchase drugs. Officer McCauley had extensive training in narcotics packaging, recognition, effects and sales. At approximately 8:55 p.m., Officer McCauley was working with approximately 18 other officers on the drug task force in the area of Winston and Wall Streets. Officer McCauley was wearing a one-way transmitter and plain clothes. Other detectives were monitoring Officer McCauley’s conversations. Officer McCauley approached Gregory Jones. Officer McCauley said: “Hey. You waiting on it?” This question was vernacular for waiting for someone to sell drugs. Officer Hector Diaz and Justin Bugarin, who were also working undercover, were assigned to watch Officer McCauley.
Mr. Jones responded: “Yeah. Waitin’ too long. Did you try up there?” Mr. Jones motioned northbound on Wall Street. Officer McCauley responded: “No. I don’t know anybody up there.” Officer McCauley described the conversation with Mr. Jones: “He would take me to, he said, one of the alleys. He said he knew someone that would be able to sell me drugs.” Officer McCauley followed Mr. Jones to an L-shaped alley between Third and Boyd Streets. When they arrived at the mouth of the alley, Mr. Jones walked directly to defendant. Mr. Jones pointed to Officer McCauley and said: “Hey. 2-0.” Mr. Jones made a two and a zero with his hands. Officer McCauley understood that to mean $20 dollars worth of drugs. Defendant walked directly toward Officer McCauley. Defendant handed Officer McCauley a clear plastic baggie containing an off-white solid resembling cocaine base. Officer McCauley handed defendant a prerecorded $20 bill. Based upon his training and experience, Officer McCauley believed the substance was cocaine base.
As Officer McCauley walked away, Mr. Jones followed. Mr. Jones asked for a profit for his work. Officer McCauley gave Mr. Jones a prerecorded $5 bill. Officer McCauley then left Mr. Jones. Officer McCauley notified his team of the drug transaction. Officer McCauley noted that defendant was wearing a black jacket with a “Raiders” logo. Defendant had a two-to-three inch goatee. Officers Diaz and Bugarin watched defendant sell the cocaine base to Officer McCauley. Officer Bugarin was seated on the curb approximately 50 feet away and could see the faces of both defendant and Officer McCauley. Officer Diaz also had a clear view of defendant’s face as the transaction with Officer McCauley was completed.
Officer McCauley’s supervisor, Detective Vip Kanchanamongkol, was notified the narcotics purchase was completed. Officer McCauley described the seller to Detective Kanchanamongkol and other monitoring officers, including Officers Chris Marshall and Jesus Toris, as a Black man, who was approximately five feet, seven to nine inches tall of average build. The seller wore a black leather jacket and had a short goatee of two to three inches. Thereafter, one of the officers was instructed to arrest defendant. Officer Marshall drove his black and white patrol car to the north of the alley. Detective Kanchanamongkol arrived there immediately thereafter. Both Officer Marshall and Detective Kanchanamongkol walked into the alley. Officer Marshall saw a man wearing a black leather jacket standing near a white van in the alley. Officer Marshall and several other uniformed officers who had arrived in the alley walked toward defendant. Thereupon, defendant fled. The officers gave chase. Defendant stopped running when he came upon an iron gate which blocked his way. Defendant put his hands up and was arrested. As he was arrested, defendant dropped a small leather case to the ground. Officer Marshall picked up the leather case, which contained a 10-dollar bill and 10 one-dollar bills. Officer Toris conducted a pat down search of defendant. Officer Toris discovered several off-white substances resembling cocaine. No drug smoking paraphernalia was found in defendant’s possession.
Detective Kanchanamongkol returned to the area near the van where defendant had been standing. Detective Kanchanamongkol recovered a clear plastic bindle containing several off-white solids. Several more off-white solids were on the pavement next to the bindle. Detective Kanchanamongkol placed all 12 of the off-white solids into a zip lock baggie. Detective Kanchanamongkol believed the cocaine base found on defendant’s person and in the alley were possessed for sale rather than individual use. Likewise, Officer McCauley believed that, based upon the totality of the circumstances, the cocaine base was possessed for purposes of sale.
Officers McCauley and Diaz later positively identified defendant during a field investigation. Officer McCauley positively identified defendant. A photo taken of defendant on March 6, 2009, depicted him with a goatee and wearing a black jacket with a logo. At trial, Officer McGruder was 100 percent certain defendant was the individual who sold the cocaine base. Officer Diaz had no doubt that defendant sold the cocaine base to Officer McCauley. None of the other individuals arrested in the alley on March 6, 2009, had a beard or wore a black jacket with a Raiders logo. A subsequent analysis by a criminalist of the evidence seized revealed the substances were cocaine base as follows: the item purchased by Officer McCauley weighed.31 net grams; the off-white substances found in defendant’s pocket at the time of his arrest weighed.18 net grams; and the off-white substances found by Detective Kanchanamongkol in the alley weighed 2.14 net grams.
III. DISCUSSION
A. Defendant’s Self-Representation Motion
1. Factual and procedural background
Defendant argues that the trial court improperly denied his self-representation motion. On June 11, 2009, defendant and Mr. Jones appeared before Judge Jose I. Sandoval. At that time, defendant’s counsel, Donald J. Calabria, indicated they were ready to proceed to trial. Counsel for Mr. Jones indicated a settlement had been reached. The prosecutor informed the court that Mr. Jones would plead guilty but sentencing would be continued for approximately one month. Mr. Calabria advised Judge Sandoval that defendant was upset. Defendant was irritated because he had been informed that the offer was a “package deal.” However, Mr. Jones had agreed to an individual settlement. Defendant believed that he had been lied to about the offer. Defendant acknowledged that he had been offered a 6-year sentence with 50 percent good and work time credits, but chose to reject it because he was innocent. Defendant indicated he wanted a “speedy trial.” Mr. Calabria requested that Mr. Jones be present at defendant’s trial as a witness. Mr. Jones indicated he would not testify. Judge Sandoval ordered Mr. Jones to be present for defendant’s trial.
On June 16, 2009, the case was set for trial and the jury panel was about to be summoned. While the jurors were waiting, Judge Marcelita V. Haynes reviewed the offer that had been presented to defendant as well as the maximum sentence based upon his prior serious felony conviction. Defendant protested Mr. Jones’s decision not to testify. After a brief recess to allow defendant to discuss matters with counsel, he requested a substitution of counsel hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, 122.
After dismissing the prosecutor, the trial court conducted a substitution of counsel hearing. Defendant stated: “I feel that this lawyer... isn’t working in my best interest. I have been locked down since March 6th. Not once has he came and visit me.... I’m unable to call him collect. [¶] I’m homeless. I have nobody else to call. I have no other witness. I feel that he will not be in my best interest to solve it. And what we just said outside, he called me stupid.” Judge Haynes inquired whether defendant had the funds to hire another attorney. Defendant said, “If I have to, I’ll go pro per.” However, defendant said he was not prepared to go to trial that day. The trial court responded, “The court finds that that’s a delaying tactic. That matter is here. The jurors are present outside. It’s ready for trial. You will not be granted pro per status. [¶]... [¶] Defendant has been in court on numerous occasions. Has never indicated a desire to go pro per. One, two, three, four, five, six - - seven prior occasions and was aware that the jury was being called over 40 - - over 45 minutes ago. And the jurors are present and ready....” Mr. Calabria again explained that although the prosecutor, Armenui Ashvanian, initially indicated any case settlement must involve a “package deal, ” Mr. Jones was allowed to plead guilty and delay sentencing. Thereafter, Mr. Jones declined to testify in this case because of his pending sentencing. In addition, defendant was advised his prior record would not serve his credibility well if he decided to testify at trial.
Defendant continued to protest his innocence. Mr. Calabria explained that defendant was willing to enter a plea to cocaine base possession but not sales. Judge Haynes denied the substitution of counsel motion, noting: “Well, I don’t find that communication has broken down where there is such a conflict that you cannot represent [defendant]. I don’t find that you - - there’s anything to relieve counsel under Marsden. [¶] And as I indicated, you’ve had plenty of opportunity prior to today’s date and prior to waiting till jurors were here to ask to go pro per. So that request is denied.”
2. Judge Haynes could properly deny defendant’s self-representation request
A defendant has a federal constitutional self-representation right. (Faretta v. California (1975)422 U.S. 806, 835-836; People v. Jackson (2009) 45 Cal.4th 662, 689; People v. Koontz (2002) 27 Cal.4th 1041, 1069.) Our Supreme Court has held: “‘“A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]”’ [Citation.]” (People v. Jackson, supra, 45 Cal.4th at p. 689, quoting People v. Stanley (2006) 39 Cal.4th 913, 931-932; see also People v. Rudd (1998) 63 Cal.App.4th 620, 625.)
Given the facts in the present case, defendant’s opportunity to proceed pro se was not an unqualified right because of his delay in seeking to represent himself. Defendant waited until the day trial was to commence and potential jurors were waiting to enter the courtroom. In People v. Jenkins (2000) 22 Cal.4th 900, 959, our Supreme Court described a trial court’s duties in assessing a belated self-representation request as follows: “In exercising this discretion, the trial court should consider factors such as ‘“the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.”’ (People v. Burton (1989)48 Cal.3d 843, 853 [], quoting People v. Windham (1977) 19 Cal.3d 121, 128 [].)” (See Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264-265; People v. Rudd, supra, 63 Cal.App.4th at pp. 627-268.)
Judge Haynes could reasonably rule that the defendant’s self-representation request was merely a tactic designed to cause delay. Thus, Judge Haynes had the discretion to deny the motion to proceed pro se. (Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888; United States v. Flewitt (9th Cir. 1989) 874 F.2d 669, 674-675.) As our Supreme Court in People v. Jackson, supra, 45 Cal.4th at page 689 held: “‘[O]nce a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court.’ [Citation.]” (Ibid., quoting People v. Windham[, supra, ] 19 Cal.3d [at p.] 128.) Appellate courts also review self-representation timeliness issues for an abuse of discretion. (People v. Clark (1992)3 Cal.4th 41, 98; People v. Windham, supra, 19 Cal.3d at p. 128.)
Judge Haynes did not abuse her discretion in denying defendant’s day of trial self-representation request made while the jurors were waiting in the hallway. Defendant’s request came after the jury was summoned on the day the trial was to commence. Judge Haynes found that the reasons for defendant’s request were the same as voiced in his Marsden hearing. The reasons related to a disagreement between defendant and Mr. Calabria as to how to best defend against the charges. Further, defendant’s self-representation request was equivocal because it was strictly in response to Mr. Calabria’s alleged shortcomings rather than a sincere desire to proceed in pro se. Defendant acknowledged that he was not prepared to go forward with the trial that day. Defendant did not indicate how long it would take him to prepare for trial. Judge Haynes found that there was no issue as to the quality of representation provided by Mr. Calabria. If granted, Judge Haynes could reasonably conclude defendant’s pro se status would cause significant delays and thereby obstruct the fair and effective administration of justice. (People v. Jackson, supra, 45 Cal.4th at p. 690; People v. Clark, supra, 3 Cal.4th at pp. 100-101; United States v. Mackovich (10th Cir. 2000) 209 F.3d 1227, 1237.) No abuse of discretion occurred.
B. Mr. Jones’ Plea
1. Factual and procedural background
Defendant argues that the prosecutor offered Mr. Jones an unlawful plea bargain. According to defendant, Ms. Ashvanian’s offer prohibited Mr. Jones from testifying in this case. This, according to defendant, thereby denied him his federal constitutional rights to compulsory process and due process. We disagree.
As set forth above, on June 11, 2009, Mr. Jones agreed to a plea bargain wherein he was placed on three years’ probation supervision and ordered to serve one year in a residential treatment program. Mr. Jones’ sentencing was continued to June 22, 2009. Mr. Jones had another outstanding matter for which he had not yet had a preliminary hearing. The prosecutor, Ms. Ashvanian, had previously discussed a package arrangement with both defendant and Mr. Jones. Defendant had been offered a settlement of 6 years with 50 percent conduct credits. However, defendant declined the offer. Thereafter, defendant’s case was ordered transferred to Department 100 for trial, which was set to commence on June 18, 2009. Mr. Calabria asked that Mr. Jones be present at defendant’s trial as a witness. However, Mr. Jones indicated he would refuse to testify. Judge Sandoval ordered Mr. Jones to be available for defendant’s trial. On June 16, 2009, Judge Haynes explained to defendant that trial would commence in approximately 15 minutes. Judge Haynes explained that Mr. Jones would not testify: “They’re claiming the Fifth. Based on what I’ve read, it’s probably appropriate because they’re subject to some penalties.” When defendant objected to Mr. Jones’s refusal to testify, Judge Haynes further explained: “Sir, the law says he can assert his Fifth Amendment privilege. And that’s what he’s going to assert. And if I find the basis for it - - based on what I know, there is a legal basis. He will not be allowed to testify that’s it. [¶] I’m telling you up front. I mean, we’ll have a hearing on it. But as long as he is subject to further criminal prosecution, he has not been sentenced. He has a Fifth Amendment privilege; therefore, he can’t even be called.”
A hearing regarding Mr. Jones’s testimony was held on June 18, 2009. Mr. Jones was represented by counsel, Raul Sabado. Mr. Sabado advised Mr. Jones not to answer questions. Mr. Jones also refused to answer whether his refusal was part of his plea bargain. Mr. Sabado explained at sidebar: “The agreement we made was fairly broad. It was not to assist.” As will be noted, Mr. Sabado’s offhand vague comment, “It was not to assist, ” is contradicted by the reporter’s transcript of the actual plea agreement. Mr. Calabria argued that the Ms. Ashvanian acted improperly by not allowing Mr. Jones to testify for defendant. Judge Haynes explained: “Even if he were on probation, has he - - he’s not sentenced. Whether or not there was an agreement - - I wasn’t there. I’m going to assume that something was said to the effect as counsel has indicated. [¶] The law says he has a right to assert his 5th Amendment privilege regarding testifying. I don’t - - I was not there. I can’t presume any wrongdoing by the [district attorney]’s office....”
2. Mr. Jones’ could properly refuse to testify
Defendant relies upon the recent holding by our colleagues in the Court of Appeal for the Third Appellate District in People v. Treadway (2010) 182 Cal.App.4th 562, 569 to support his argument. In Treadway, defendant, who had suffered a severe head injury in an accident, became violent and easily provoked following his recovery. He was hospitalized for psychiatric reasons on two subsequent occasions. After his release, the defendant and two friends drove to buy cigarettes. The defendant approached the victim. The victim was ordered to turn over all his money, and when he refused, he was shot five times. The defendant’s accomplices told friends and the police how crazy he had acted at the time of the shooting. However, the co-defendants entered into plea agreements that specifically precluded them from testifying at his trial. The Court of Appeal concluded not only that it was improper for the prosecutor to condition the plea bargains on an agreement not to testify, but also that one of the co-defendants, Charles Morgan, could have credibly attested to the defendant’s mental state at the time of the shooting. The Court of Appeal noted: “Defendant argued that as a result of brain damage, his act of shooting the victim was neither conscious nor volitional. Morgan’s observations were the only observations close enough in time to support defendant’s claim.” (Id. at p. 571.) The Court of Appeal held: “‘Due process also is violated when the prosecution makes a material witness unavailable....’ [Citation.]” (People v. Treadway, supra, 182 Cal.App.4th at p. 569, quoting People v. Coffman and Marlow (2004) 34 Cal.4th 1, 52.)
The facts of this case are distinguishable. The California Supreme Court has held: “Because a ‘negotiated plea agreement is a form of contract, ’ it is interpreted according to general contract principles. [Citations.]” (People v. Segura (2008) 44 Cal.4th 921, 930, quoting People v. Shelton (2006) 37 Cal.4th 759, 767; Civ. Code § 1635 et seq.) Contracts are interpreted by reviewing the outward, disclosed manifestations of intent of the parties rather than subjective intentions. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956; Berman v. Bromberg (1997) 56 Cal.App.4th 936, 948.) Mr. Jones’ plea agreement contains no evidence he was either required to not assist or he agreed to refuse to testify in this case. The prosecutor inquired, “Other than the proposed plea agreement, Sir, has anyone threatened you or promised you anything in order for you to plead guilty today?” Mr. Jones responded, “No.” The prosecutor then asked: “Are you pleading guilty, Sir, because in fact you assisted [defendant] in selling a controlled substance to an undercover officer?” Mr. Jones responded, “Yes.” Thereafter, the trial court accepted the plea and found Mr. Jones “knowingly, freely and intelligently” waived his rights. Other than his own spontaneous statement that he was not going to testify, no mention whatsoever was made of any requirement that he not testify in this case as part of the plea agreement. Indeed, Judge Sandoval ordered Mr. Jones to be removed from the county jail and be present at defendant’s trial the following week noting, “Should he refuse to testify, that’s an issue the trial court will deal with.”
As set forth above, Judge Haynes did have to deal with Mr. Jones’s refusal to testify when he was called as a witness for the defense outside the jurors’ presence. On the advice of counsel, Mr. Sabado, Mr. Jones refused to answer any questions. Judge Haynes said she was not present at the time the plea was entered. Nonetheless, Judge Haynes ruled that because he was not yet sentenced, Mr. Jones had a right to exercise his Fifth Amendment privilege not to testify. Judge Haynes’ ruling was indisputably correct. (Ohio v. Reiner (2001) 532 U.S. 17, 20; People v. Seijas (2005) 36 Cal.4th 291, 304.) Therefore, there were other proper reasons for Mr. Jones’s refusal to testify.
One additional note is in order about the state of the record on direct appeal. We view the entire record in a light most favorable to the judgment. (Witkin, 6 Cal. Criminal Law (3d ed. 2000) “Criminal Appeal, ” § 149, p. 396; People v. Johnson (1980) 26 Cal.3d 557, 576.) The proceedings before Judge Sandovol contain no reference to a condition of the plea bargain that Mr. Jones not testify for defendant. In fact, Mr. Jones expressly stated that all of the conditions of his plea bargain had been set forth on the record. Testifying in defendant’s trial was not one of the conditions of the plea bargain entered into before Judge Sandovol. Mr. Sabado’s casual and vague reference to “not to assist” does not directly contradict the record of Mr. Jones’ plea proceedings before Judge Sandovol. In fact, it is unclear who Mr. Jones was “not to assist”-the prosecution or the defense. And Ms. Ashvanian did not corroborate defendant’s assertion Mr. Jones was barred from testifying at defendant’s trial. Further, there is no under oath evidence Mr. Jones’ plea bargain prevented him from testifying for anybody. But even if there is a conflict in record between the proceedings before Judge Sandovol and Mr. Sabado’s cryptic statement, defendant would still not be entitled a reversal on direct appeal. The record must be viewed in a light most favorable to the judgment which, when so construed on direct appeal, indicates no understanding was reached with Ms. Ashvanian as to Mr. Jones’ participation in defendant’s trial.
Even if we were to find the plea agreement prevented Mr. Jones from testifying, the inquiry does not end there. As the Court of Appeal in People v. Treadway, supra, 182 Cal.App.4th at page 570 held, “Defendant must demonstrate, however, not only that the prosecutor’s conduct was improper, but also that the testimony of the witnesses would have been both material and favorable to the defense.” As the Attorney General points out, when pleading no contest, Mr. Jones admitted aiding and abetting defendant in the sales of a controlled substance to an undercover officer. Any testimony to the contrary could be impeached and subject Mr. Jones to prosecution for perjury.
Moreover, although defendant adamantly denied having made the drug sale, there was overwhelming evidence of his guilt. Three police officers, who were eyewitness to defendant’s drug sale, positively identified him as the seller. In addition, the chase officers easily identified defendant from the description given by Officer McCauley. Defendant was the only person in the alley that wore a black leather jacket with a logo and had a goatee. Mr. Jones’s absence from defendant’s trial was harmless under any standard of reversible error. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Rodrigues (1994) 8 Cal.4th 1060, 1127; People v. Watson (1956) 46 Cal.3d 818, 836.)
C. Sentencing
1. Propriety of the sentence imposed
a. Factual and procedural background
Defendant argues Judge Haynes improperly sentenced him to an 11-year term despite the fact that: he was offered a 6-year plea agreement with 50 percent credits for both charges; (he was originally charged in 2 counts); she cautioned that he could be sentenced to a total of 13 years for both offenses; and he was found guilty of only one charge. Defendant further argues that the sentence imposed amounts to a punishment for having exercised his right to a trial, thereby violating his federal constitutional right to due process. We disagree.
As set forth previously, prior to the commencement of trial on June 16, 2009, Judge Haynes reviewed the case with defendant. Judge Haynes noted that his “witness” would be exercising his Fifth Amendment right not to testify. Judge Haynes also stated: “If you lose, as you’ve been told, your maximum is 13 years. [¶] This is actually - - well, consider it a third strike. The People are only going on a second strike. So you’ve already gotten a break right there. Legally – well, you have two strikes. They’re only going on one of them. They - - you have a [Penal Code section] 288 in 1993 and a terrorist threat in 1995. So technically, it’s a third strike.” Defendant then professed his innocence. Judge Haynes responded: “Okay. Well, [defendant], that’s what a trial is for. If you lose, the minimum that you will receive from the court is nine years at 80 percent. So if you think that you can convince 12 citizens of this community, that’s fine. But recognize there will be no dealing. There will be no half-time offer because legally I cannot do it.”
Following his conviction for the cocaine base sale charge, Judge Haynes found defendant had been convicted of a serious felony and served three prior prison terms. Judge Haynes also revoked defendant’s probation in case No. 8LG01069, and reinstated the probation with the condition that he serve a 365-day concurrent sentence. Mr. Calabria argued that defendant was homeless and living in an alley at the time of the drug transaction in this case. Mr. Calabria requested that Judge Haynes extend leniency because of the nature of the crimes and her ability to strike his prior convictions. Thereafter, Judge Haynes explained: “I did consider whether - - because of the small amount of narcotics involved, whether the low term would be appropriate. But as the People have pointed out from ’93 to ’94 then in ’99 he got three years. And there is a space of time where he wasn’t caught or wasn’t convicted of anything. But I don’t see anything - - even when I read the recommendations from probation, they recommend the midterm because there really is no mitigating circumstances. [¶] The defendant’s behavior and outburst during the trial - - obviously, the jury did not believe him; so, therefore, he - - the only way can you put it is they felt that he lied. [¶] I forgot how many officers testified to the same thing. And I just don’t see where the low term is justified in this case.” Judge Haynes then sentenced defendant to the midterm of four years in state prison and doubled it pursuant to sections 667, subdivisions (b) through (i), and 1170.12. Judge Haynes noted, “Yes, the court could strike the [section] 667.5 [subdivision (b)] priors, but this is just not the case where I’m going to do it.” Judge Haynes then added the three section 667.5, subdivision (b) one-year enhancements, for a total of 11 years.
b. The trial court could properly impose an 11-year sentence
A criminal defendant has a state and federal constitutional right to a jury trial. (U.S. Const., 6th, 7th, 14th Amends; Cal. Const., art. I, § 16.) It is also constitutional to allow a defendant to waive his jury trial right and accept a plea bargain. (In re Lewallen (1979) 23 Cal.3d 274, 280-281; People v. Collins (2001) 26 Cal.4th 297, 305.) Where more than one person is charged, the prosecutor may enter into a “package deal” plea bargain with all of the defendants. Such package settlements are valid so long as the terms are not coercive. (In re Ibarra (1983) 34 Cal.3d 277, 286-290, disapproved on other grounds in People v. Howard (1992) 1 Cal.4th 1132, 1175-1178; Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1056.) Our Supreme Court has held: “We recognize that the ‘package-deal’ may be a valuable tool to the prosecutor, who has a need for all defendants, or none to plead guilty. The prosecutor may be properly interested in avoiding the time, delay and expense of trial of all the defendants. He is also placed in a difficult position should one defendant plead and another go to trial, because the defendant who pleads may become an adverse witness on behalf of his codefendant, free of jeopardy. Thus, the prosecutor’s motivation for proposing a ‘package-deal’ bargain may be strictly legitimate and free of extrinsic forces.” (In re Ibarra, supra, 34 Cal.3d at p. 289, fn. 5, original italics; see People v. Sandoval (2006) 140 Cal.App.4th 111, 125 [trial courts are required to inquire into the totality of the circumstances whenever a plea is entered pursuant to a “package-deal” to insure voluntariness].)
Defendant concedes that, following a jury trial, a trial court may sentence an accused to a different term than that offered as part of a proposed settlement prior to trial. However, defendant argues that he was punished for exercising his constitutional right to a jury trial. (See United States v. Jackson (1968) 390 U.S. 570, 580-582; People v. Collins, supra, 26 Cal.4th at p. 307; In re Lewallen, supra, 23 Cal.3d at p. 278.) We disagree. As set forth above, the “package-deal” plea agreement may properly be rejected when one of the defendants declines to accept it. That is exactly what occurred in this case. The proposed plea agreement did not automatically strike defendant’s prior felony conviction or his prior prison terms. Moreover, Judge Haynes exercised leniency in response to Mr. Calabria’s recommendation when she imposed the middle term, noting that the prosecutor had already declined to allege a second prior serious felony conviction. Judge Haynes sentenced defendant in accord with the law and nothing in her comments suggests that the sentence imposed was either vindictive or outside the framework of section 667, subdivision (b) through (1).
2. Health & Safety Code section 11372.5, subdivision (a) laboratory fee
Following our request for further briefing, the Attorney General argues that Judge Haynes should have imposed additional fees and penalties related to the $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee. Although the abstract of judgment indicates penalty assessments were imposed pursuant to section 1464, subdivision (a)(1) ($50) and Government Code section 76000, subdivision (a)(1) ($35), the oral pronouncement of judgment does not include them. As a result, those penalty assessments should have been orally imposed. The $50 laboratory fee was also subject to the following: a $10 section 1465.7, subdivision (a) state surcharge; a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty; a $7 Government Code section 76000.5 penalty assessment; a $5 Government Code section 76104.6, subdivision (2) deoxyribonucleic acid penalty; and a $5 Government Code section 76104.7 state only deoxyribonucleic acid fee. Thus, the total amount owed by defendant in addition to the $50 laboratory fee is $127. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530; see People v. McCoy (2007) 156 Cal.App.4th 1246, 1254-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) Defendant’s sentence is modified to impose the Health and Safety Code section 11372.5, subdivision (a) $50 fee and to add the related fees and penalties set forth above.
3. Registration requirements
Defendant argues that Judge Haynes improperly imposed a requirement that he register as a gang member pursuant to section 186.30. The Attorney General agrees but concludes that defendant should be required to register as a narcotics offender pursuant to Health & Safety Code section 11590. At the sentencing hearing, the court only informed defendant: “Once you’re released, you have to register as a narcotics offender with the police or sheriff’s station closest to where you live. Just go in. Tell them you need to register. They’ll give you further instructions.” The probation officer’s report suggested that defendant be required to register as a drug offender pursuant to Health and Safety Code section 11590, subdivision (a) as well. The abstract of judgment erroneously reflects that defendant register as a street gang participant pursuant to section 186.30, subdivision (a). Judge Haynes stated defendant was to register pursuant to section Health and Safety Code section 11590, subdivision (a).
Our Supreme Court has held: “[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court’s oral pronouncement of judgment to the extent the two conflict. [Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1070; see also §§ 1213, 1213.5, People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Walz (2008) 160 Cal.App.4th 1364, 1367.) California Rules of Court, rule 8.155(c)(1) provides in pertinent part, “[O]n its own motion, the reviewing court may order correction... of any part of the record.” (See also People v. Mitchell, supra, 26 Cal.4th at pp. 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.) The abstract of judgment must be corrected to state defendant must register pursuant to Health and Safety Code section 11590, subdivision (a). Further, the abstract of judgment must be corrected to delete the gang registration requirement. Judge Haynes is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which makes these corrections and reflects the modifications to the laboratory fee. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to impose the additional penalty assessments, surcharge, and penalties related to the $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee as set forth in the body of this opinion. The registration order is modified to state defendant must register pursuant to Health and Safety Code section 11590, subdivision (a). Upon remittitur issuance, the clerk of the superior court shall forward an amended abstract of judgment to the California Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: KRIEGLER, J., KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.