Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NA066924, Robert Martinez, Judge.
Gina McCoy, 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, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
James Michael Yagle was convicted of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On appeal, he contends that the imposition of the upper term sentence violated his Sixth Amendment right to a jury trial as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). He also argues that his custody credits were improperly calculated. The Attorney General concedes that the custody credits were improperly calculated, and argues that the trial court failed to impose various mandatory financial obligations at sentencing. Under the authority of People v. Black (2007) 41 Cal.4th 799 (Black II), we reject Yagle’s constitutional argument. With respect to the remaining sentencing claims, we remand for correction of Yagle’s custody credits and imposition of appropriate financial obligations.
FACTUAL AND PROCEDURAL BACKGROUND
Yagle was stopped by police for riding a bicycle on a sidewalk in violation of the Vehicle Code. When the officers patted him down, they found money and a plastic bag later determined to contain methamphetamine. Yagle was charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The information alleged that Yagle had seven prior felony convictions within the meaning of the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior convictions and prison terms within the meaning of Penal Code section 667.5, subdivision (b). The jury convicted Yagle as charged; after a bench trial concerning the special allegations, the court found all the allegations to be true.
The trial court struck six of the seven prior serious felonies and sentenced Yagle to the high term of three years, doubled under the Three Strikes Law to six years. The court then imposed three consecutive one-year enhancements for Yagle’s prior prison terms, for a total sentence of nine years. The court awarded a total of 411 days of presentence custody credits, reflecting 275 days in actual custody and 136 days of custody credits. At the sentencing hearing, the court also imposed a $20 court security fee and $135 in laboratory analysis fees and corresponding penalties. The abstract of judgment includes an additional fee and imposes a higher total fee for the laboratory analysis and related assessments. Yagle appeals.
DISCUSSION
I. Imposition of the High Term
The court explained its reasons for imposing the high term sentence: “[T]the court has taken into account the defendant has served prior prison commitments, his convictions are numerous, he was on parole at the time of this offense. And for that reason, the high term is imposed.” Yagle claims that under the rules articulated in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856, a jury, not the trial court, should have determined whether those aggravating facts existed.
Under existing law, it does not appear that any of the aggravating factors on which the court relied need to be submitted to the jury in order to support the imposition of a high term sentence. That a defendant’s prior convictions are numerous is properly determined by the trial court. (People v. Black, supra, 41 Cal.4th at pp. 819-820 (Black II).) At sentencing the trial court may consider the fact of a defendant’s prior conviction without submitting that prior conviction to a jury. (Apprendi, supra,530 U.S. at p. 490 [“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”].) The California Supreme Court has construed the Apprendi prior conviction exception broadly to include “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, at p. 819.) Although the California Supreme Court did not directly decide in Black II whether these particular aggravating factors—a defendant’s service of a prior prison term and that he or she was on parole at the time of a new offense—fall within the prior conviction exception, the Supreme Court’s construction of the prior conviction exception leads us to the conclusion that it will consider a defendant’s status on parole and service of a prior prison term to be “fact[s] that increase[] the penalty for a crime beyond the prescribed statutory maximum” (Apprendi, supra, 530 U.S. at p. 490) but that need not be submitted to a jury.
We are bound by the Supreme Court’s decision in Black II, supra, 41 Cal.4th 799. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). A review of Department of Corrections records that were admitted into evidence confirm that Yagle’s prior convictions were numerous, he had served prior prison terms, and he was on parole at the time of this new offense. Accordingly, the imposition of the upper term sentence was constitutionally authorized under Black II.
II. Custody Credits
Yagle contends, and the Attorney General concedes, that his presentence custody credits were erroneously calculated. The trial court awarded 411 days of custody credit, of which 275 days were actual days in custody and 136 were custody credits. It appears, however, that Yagle was actually in prison for 279 days prior to sentencing. To calculate Yagle’s presentence custody good time/work time credits, his actual presentence custody time of 279 days is divided by four and rounded down to the nearest whole number—69 days—and then multiplied by two, for a total of 138 days of good time/work time credit. (Pen. Code, § 4019; People v. King (1992) 3 Cal.App.4th 882, 884-885.) Yagle was therefore entitled to 417 days of presentence custody credit, of which 279 are actual days of credit and 138 are days of conduct credit.
III. Additional Statutory Penalties
The Attorney General argues that pursuant to Penal Code section 1465.7, subdivision (a), the trial court should have imposed a state surcharge of $10 on the $50 laboratory fee imposed under Health and Safety Code section 11372.5, subdivision (a). The Attorney General also claims that the trial court should have imposed state court construction penalties under Government Code section 70372, subdivision (a) in the amount of $270, of which $100 should have been stayed.
We have reviewed the transcript of the sentencing hearing and the abstract of judgment and are unable to reconcile the two. One fee not mentioned at the sentencing hearing appears on the abstract of judgment: a drug program fee of $150 was not imposed orally at sentencing but nonetheless is present on the abstract of judgment. At sentencing, laboratory analysis fees and related penalties were imposed in the amount of $135. However, the abstract of judgment lists the laboratory analysis fee as $155. No statement on the record at sentencing explains this increase.
We cannot ascertain from this record whether these changes were inadvertent or whether at the time of the preparation of the abstract of judgment the court was attempting to impose additional financial obligations, such as the very surcharge that the Attorney General argues should have been imposed on the laboratory fee under Health and Safety Code section 11372.5, subdivision (a) pursuant to Penal Code section 1465.7, subdivision (a) or the construction penalty now sought under Government Code section 70372, subdivision (a). As we are unable to determine what monetary assessments the trial court intended to impose, we cannot substantively review this portion of the judgment. We therefore vacate the financial obligations imposed by the trial court and remand the matter to the trial court for the purpose of imposing appropriate and clear financial obligations on Yagle with respect to the present conviction.
DISPOSITION
The matter is remanded to the trial court for a limited resentencing pertaining to custody credits and financial obligations only. The trial court is directed to award Yagle 417 days of presentence custody credit, of which 279 are actual days of credit and 138 are days of conduct credit, and also to determine and impose appropriate financial obligations in light of the present conviction. The clerk of the superior court is then directed to prepare a corrected abstract of judgment and to forward a certified copy of the abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.