Opinion
C042410.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. GERALD RICHARD AZEVEDO, Defendant and Appellant.
Offered a stipulated sentence of four years in state prison and dismissal of the remaining count, defendant Gerald Richard Azevedo pleaded no contest to a charge of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted serving a prior separate prison term within the meaning of Penal Code section 667.5, subdivision (b). Defendant was sentenced to state prison for four years and was ordered to pay a $ 200 restitution fine (Pen. Code, § 1202.4) and a $ 200 parole revocation fine. (Pen. Code, § 1202.45.) Defendant sought, but was denied, a certificate of probable cause.
The abstract of judgment states incorrectly that defendant was ordered to register as a sexual offender pursuant to Penal Code section 290. We shall order the abstract corrected to reflect that the trial court ordered defendant to register as a narcotics offender pursuant to Health and Safety Code section 11590. We note this error was brought to the trial courts attention previously, but inexplicably, the clerical error was not corrected in the amended abstract.
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief which sets forth the facts of this case and which requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days of the date of the filing of the opening brief. And defendant has, in fact, filed a supplemental letter brief.
DISCUSSION
I.
Defendant makes four related contentions. First, defendant contends that he received ineffective assistance of trial counsel as a result of his counsels absences from earlier proceedings prior to his plea agreement, which purportedly resulted in defendants loss of an opportunity to enter into a better plea bargain that would have included only a three-year total term. Defendant also claims that the trial court erred in denying his motion to obtain new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44, prior to the plea agreement. Defendant claims that he "had no choice but to plead guilty after the Judge denied [his] motion to relieve [his trial counsel] . . . because it was clear that with [that counsel] as [his] attorney [his] situation was only going to get worse . . . ."
However, because these claims challenge the validity of defendants plea, they cannot be raised without a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099, 969 P.2d 146; People v. Panizzon (1996) 13 Cal.4th 68, 74-75, 913 P.2d 1061.) "A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon, may not obtain review of so-called `certificate issues, that is, questions going to the legality of the proceedings, including the validity of his plea, unless he has complied with section 1237.5 . . . and the first paragraph of rule 31(d) of the California Rules of Court — which require him to file in the superior court a statement of certificate grounds as an intended notice of appeal . . . and to obtain from the superior court a certificate of probable cause for the appeal . . . ." (People v. Mendez, supra, at p. 1088, fns. omitted.)
As our Supreme Court held in People v. Panizzon, supra, 13 Cal.4th at page 75, "the purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas." (Ibid.; People v. Breckenridge (1992) 5 Cal.App.4th 1096, 1101, disapproved on another ground in In re Chavez (2003) 30 Cal.4th 643, 657, fn. 6.)
Defendants third claim seeks permission to withdraw his plea or an order enforcing a three-year plea bargain.
However, again, the relief sought by defendant is directed at the validity of his plea. As a result, "it was incumbent upon defendant to seek and obtain a probable cause certificate in order to attack the [stipulated] sentence on appeal." (People v. Panizzon, supra, 13 Cal.4th at p. 79.) Defendants failure to obtain a certificate of probable cause from the trial court precludes our consideration of the merits of his claims. (Pen. Code, § 1237.5; People v. Mendez, supra, 19 Cal.4th at p. 1095.)
Finally, defendant asks for an order requesting the appointment of new counsel on appeal because she failed to raise his contentions here. Defendant claims that he "asked [his] appointed appellate attorney . . . to raise these issues on appeal and it[]s clear she has failed to do that. . . . [P] Im . . . asking the appellate court to relieve my appointed appellate attorney . . . and be appointed a new appellate attorney that will raise the issues Ive tried to bring to the attention of this court."
However, in light of our examination of the record in this case, the appointment of another counsel for appellant in this appeal would not lead to a more favorable outcome for defendant and therefore we decline to do so.
II.
Our review of the record discloses that although defendant was convicted of a violation of Health and Safety Code section 11379, subdivision (a), the trial court did not impose the mandatory criminal laboratory analysis fee set forth in Health and Safety Code section 11372.5.
Health and Safety Code section 11372.5, subdivision (a), requires the court to impose a "criminal laboratory analysis fee in the amount of fifty dollars ($ 50) for each separate offense [specified therein]." Health and Safety Code section 11379 — defendants offense here — is among the specified offenses.
Thus, the $ 50 laboratory analysis fee was mandatory in this case. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1415.) That fee is subject to the state and county penalty assessments provided by Penal Code section 1464 and Government Code section 76000, which are likewise mandatory. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522.) The penalty assessments total $ 85 ($ 50 pursuant to Penal Code section 1464 and $ 35 pursuant to Government Code section 76000).
The failure to impose these fees and assessments, totaling $ 135, results in an unauthorized sentence that cannot be waived and is subject to correction whenever it comes to the courts attention. (See People v. Talibdeen, supra, 27 Cal.4th at p. 1157; People v. Smith (2001) 24 Cal.4th 849, 853.) Moreover, a punishment or related condition that is insignificant, like a $ 100 fine, may be imposed "whether or not it was part of the express negotiations" in a plea bargain. (People v. Walker (1991) 54 Cal.3d 1013, 1024, 1029-1030, 819 P.2d 861.)
Accordingly, we shall modify the judgment to impose the criminal laboratory analysis fee and penalty assessments.
In the interest of judicial economy, and because the error is straightforward, we correct it now without further briefing. A party claiming to be aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
III.
Having undertaken an examination of the entire record, we find no other arguable issue or error that is cognizable in this appeal.
DISPOSITION
The judgment is modified to impose a criminal laboratory analysis fee of $ 50 (Health & Saf. Code, § 11372.5 ), a state penalty assessment fee of $ 50 (Pen. Code, § 1464), and a county penalty assessment fee of $ 35 (Gov. Code, § 76000). Except as modified, the judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect that defendant was ordered to register as a narcotics offender pursuant to Health and Safety Code section 11590 and to remove the reference to registration as a sexual offender. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections.
We concur: NICHOLSON, Acting P.J., RAYE, J.