Opinion
C042900.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. GUYWAYNE MITCHELL WALTER, Defendant and Appellant.
This is an appeal after remand for resentencing. In People v. Guywayne Mitchell Walter (Feb. 4, 2002, C037427) [nonpub. opn.], this court determined that defendants conviction in 1994 for violating Penal Code section 245, subdivision (a)(1) did not constitute a serious felony for purposes of the Three Strikes law and remanded for resentencing in the event the prosecution chose not to retry the strike prior allegation.[]
On remand, the prosecution chose not to retry the 1994 strike prior allegation. The trial court denied defendants motion to strike the other strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced defendant to state prison for an aggregate term of seven years. The trial court imposed the following sentence: count 3, sale or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), the midterm of three years doubled for the strike prior; count 4, possession of a controlled substance in jail (§ 4573.6), a concurrent "one-third the midterm" doubled for the strike prior; count 2, possession of methamphetamine for sale (Health & Saf. Code, § 11378), and count 5, bringing a controlled substance into jail (§ 4573), a stay pursuant to section 654; section 667.5, subdivision (b), a one-year enhancement.
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and 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.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We note an error in sentencing. For count 4, the court imposed "one[-]third the midterm, doubled, which equals two years," to be "served concurrently." (Italics added.) The abstract of judgment reflects a two-year concurrent term for count 4. The "one-third the middle term" language is reserved for consecutive sentencing. (§ 1170.1.) The concurrent middle term should be three years doubled to six years. We will modify the judgment accordingly.
The trial court also failed to impose the criminal laboratory analysis fee of $100 (Health & Saf. Code, § 11372.5), and corresponding state and county penalty assessments of $100 and $70, respectively. (§ 1464; Gov. Code, § 76000.) The fee and assessments are mandatory and cannot be waived; therefore, we are compelled to correct their omission even though the People did not raise the issue. (People v. Talibdeen (2002) 27 Cal.4th 1151; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1416.) We will order the judgment modified accordingly.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to provide for a concurrent midterm of six years (three years doubled for the strike prior) for count 4 (§ 4573.6), a $100 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5), and $100 state and $70 county penalty assessments (§ 1464; Gov. Code, § 76000). The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy of the same to the Department of Corrections. As modified, the judgment is affirmed.
We concur: SCOTLAND, P.J. and RAYE, J. --------------- Notes: Further undesignated section references are to the Penal Code.