Opinion
B227663
08-15-2011
THE PEOPLE, Plaintiff and Respondent, v. TONY ERNEST TAYLOR, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA357500)
APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed as modified.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Tony Ernest Taylor, appeals from his conviction for possession for sale (count 1) and sale (count 2) of heroin. (Health & Saf. Code, §§ 11351, 11352, subd. (a) .) Defendant admitted the truth of the allegations he served a prior separate prison term (Pen. Code, § 667.5, subd. (b)) and sustained a prior conviction (§§ 667, subds. (b)-(i), 1170.12). While under observation by police officers, defendant participated in a heroin sale. Defendant was sentenced to state prison for six years on count 2. Pursuant to section 654, subdivision (a), the trial court imposed and stayed a four-year sentence on count 1. The trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)(1)) and a $200 parole revocation restitution fine (§ 1202.45), in addition to other fees and penalties discussed below. We modify the judgment and affirm as modified.
All further statutory references are to the Penal Code except where otherwise noted.
II. DISCUSSION
A. Peace Officer Personnel Records
We appointed counsel to represent defendant on appeal. Appellate counsel requested that we conduct an independent review of the record of the in camera hearing conducted for review of peace officer personnel records pursuant to People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232, and Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535. Appellate counsel argues that should we identify any peace officer personnel records that should have been disclosed, the remedy would be a conditional reversal. On September 22, 2009, an in camera hearing was conducted by the trial court concerning peace officer personnel records. On April 27, 2011, we assigned the trial court to conduct record correction proceedings pursuant to People v. Mooc, supra, 26 Cal.4th at page 1231. On May 12, 2011, the trial court filed under seal with this court the transcript of the in camera record correction proceedings conducted on May 5, 2011, as well as certain papers presented in that hearing. We have reviewed those papers and find the trial court did not abuse its discretion in ruling on defendant's peace officer personnel records disclosure motion. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Samayoa (1997) 15 Cal.4th 795, 827.)
B. Sentencing
We asked the parties to brief several questions relating to sentencing. First, the trial court orally imposed a $30 court security fee (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)). The oral pronouncement of judgment controls over the minutes or the abstract of judgment. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471.) Because defendant was convicted of two counts, the trial court was required to impose $60 in court security fees and $60 in court facilities assessments. (People v. Roa (2009) 171 Cal.App.4th 1175, 1181 [court security fee]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866 [same]; People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3 [court facilities assessment]; see People v. Alford (2007) 42 Cal.4th 749, 758, fn. 6.) The fees and assessments must be imposed as to count 1 even though the sentence as to that count was stayed. (People v. Woods (2010) 191 Cal.App.4th 269, 272-273; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327; People v. Crittle (2007) 154 Cal.App.4th 368, 371.)
Second, the trial court imposed a single $150 drug program fee (Health & Saf. Code, § 11372.7) as to count 2. In connection with that fee, the trial court should also have imposed a: $150 state penalty (§ 1464, subd. (a)(1)); $105 county penalty (Gov. Code, § 76000, subd. (a)(1); $30 state surcharge (§ 1465.7, subd. (a)); $45 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); $15 deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd. (a)(1)); $15 state-only deoxyribonucleic penalty (Gov. Code, § 76104.7, subd. (a)); and $30 emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)). (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) As to count 1, on a silent record, as here, we presume the trial court found defendant did not have the ability to pay a second drug program fee as to count 1. (People v. Sharret, supra, 191 Cal.App.4th at p. 864; People v. Turner (2002) 96 Cal.App.4th 1409, 1413, fn. 2; People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1518.) In addition, because the trial court had the discretion to not impose the drug program fee, the prosecutor's failure to object forfeited any claim of error on appeal. (People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Sharret, supra, 191 Cal.App.4th at p. 864; People v. Turner, supra, 96 Cal.App.4th at p. 1413, fn. 2.)
Third, the trial court imposed a single $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) "plus penalty assessment," that is a: $50 state penalty (§ 1464, subd. (a)(1)); $35 county penalty (Gov. Code, § 76000, subd. (a)(1)); $10 state surcharge (Pen. Code, § 1465.7, subd. (a)); $15 state court construction penalty (Gov. Code § 70372, subd. (a)(1)); $10 emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)); $5 deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd. (a)(1)); and $5 state-only deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a)). The trial court was required to impose the fee and associated penalties as to each of the two counts and then stay the fee as to count 1 under section 654, subdivision (a). (People v. Sharret, supra, 191 Cal.App.4th at pp. 869-870.)
Finally, the trial court gave defendant credit for 429 days in presentence custody plus 214 days of conduct credit for a total presentence custody credit of 643 days. Defendant was entitled to one additional day of presentence custody credit in that he was arrested on June 6, 2009, and sentenced on August 9, 2010, for a total of 430 days in presentence custody. (In re Marquez (2003) 30 Cal.4th 14, 25-26; People v. Smith (1989) 211 Cal.App.3d 523, 527.)
III. DISPOSITION
The judgment is modified to impose $60 in court security fees and $60 in court facilities assessments. In connection with the $150 drug program fee, the judgment is modified to include a: $150 state penalty; $105 county penalty; $30 state surcharge; $45 state court construction penalty; $15 deoxyribonucleic acid penalty; $15 state-only deoxyribonucleic penalty; and $30 emergency medical services penalty. An additional $50 criminal laboratory analysis fee and the associated surcharge and penalties are imposed and then stayed as to count 1. Defendant's presentence custody credit is modified to reflect 430 days in presentence custody plus 214 days of conduct credit for a total of 644 days. In all other respects, the judgment is affirmed. The abstract of judgment must be amended to reflect the judgment as modified including all fees, assessments, penalties and surcharges. Upon remittitur issuance, the clerk of the superior court is directed to prepare an amended abstract of judgment and deliver a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
KRIEGLER, J.