Opinion
D071704
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY RICHARD LARSON, Defendant and Appellant.
William Paul Melcher, under appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD268542) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed and remanded. William Paul Melcher, under appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Gregory Larson pled guilty to burglary. (Pen. Code, § 459.) Larson was sentenced to prison for the midterm of four years. During sentencing, the court imposed a drug program fee of $615 and a laboratory analysis fee of $205. Larson was also ordered to "stay away from" and not to visit the victims, C.N. and her son.
All statutory references are to the Penal Code unless otherwise specified.
On appeal, Larson contends (1) the court was not authorized to impose a no contact order, (2) the court was not authorized to add penalty assessments to the laboratory analysis and drug program fees, and (3) the abstract of judgment must be corrected to state the basis for each fine, fee, and penalty assessment. Respondent agrees the no contact order should be stricken and the abstract of judgment should be corrected to show the basis for the fees. We affirm and remand to modify the abstract of judgment and strike the no contact order. In doing so, we conclude Larson's challenge to the penalty assessment fees is without merit.
FACTUAL AND PROCEDURAL BACKGROUND
On August 27, 2016, Larson and three other individuals entered the apartment occupied by C.N. and her eight-year-old son. Larson pled guilty to burglary (count 1), and admitted to allegations that the dwelling was occupied by people who were not accomplices to the burglary. (§§ 459, 460, 667.5, subd. (c)(21).)
DISCUSSION
I
STANDARD OF REVIEW
"A claim that a sentence is unauthorized . . . may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
II
ANALYSIS
A. No Contact or Visitation Order
Authorizing statutes determine "the propriety" of a no contact order. (People v. Robertson (2012) 208 Cal.App.4th 965, 996.) " 'Appellate courts are willing to intervene' " for a claim that a sentence is unauthorized because the issue is " 'independent of any factual issues.' " (Ibid.)
Both parties contend the no contact order was unauthorized. We agree. The no contact order was issued pursuant to section 1202.05. Section 1202.05 applies to certain enumerated offenses, which all involve sexual conduct. Larson's charges do not involve such conduct. Therefore, the court was not authorized to issue the no contact order under section 1202.05. The no contact order must be stricken because there is no statutory basis for issuing the order.
The enumerated Penal Code sections in section 1202.05 are sections 261 (rape), 264.1 (involving rape), 266c (unlawful sexual acts), 285 (incest), 286 (sodomy), 288 (lewd acts), 288a (oral copulation), 288.5 (continuous sexual abuse), and 289 (forcible sexual acts). --------
B. Penalty Assessments
Additional penalties shall be added upon every "fine, penalty, or forfeiture." (§ 1464; Gov. Code, § 76000.) Penalty assessments for laboratory analysis and drug program fees "fall within the meaning of the penalty statutes' 'fine, penalty, or forfeiture' language." (People v. Alford (2017) 12 Cal.App.5th 964, 977 (Alford); review granted Sept. 13, 2017, S243340.)
Larson contends the court was not authorized to add penalty assessments to the laboratory analysis and drug program fees. Larson relies on People v. Watts (2016) 2 Cal.App.5th 223 (Watts), finding a laboratory analysis fee was not subject to penalty assessments. (Id. at p. 237.)
We decline to accept the interpretation expressed in Watts, supra, 2 Cal.App.5th 223 and agree with the holding reached by this court in Alford, supra, 12 Cal.App.5th 664. In Alford, penalty assessments added onto laboratory analysis fees and drug program fees were upheld because the fees are encompassed under the meaning of "fine, penalty, or forfeiture." (Id. at pp. 968, 977.) Larson does not address our holding in Alford. Nor does Larson offer a persuasive reason why we should disregard our own case.
We are aware the Supreme Court has granted review in Alford, supra, 12 Cal.App.5th 964 and a number of other cases to resolve conflicts among the Courts of Appeal on the propriety of penalty assessments for the laboratory and drug program fees at issue in this case. The high court will ultimately provide guidance on this question, however, pending further direction from the court, we continue to adhere to the views we expressed in Alford.
We agree the laboratory analysis and drug program fees fall under the penalty statutes and conclude the penalty assessments were authorized.
C. Modified Abstract of Judgment
Abstract of judgments must set forth the amounts and statutory references for all fines and fees. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) These specifications "allow[s] the Department of Corrections and Rehabilitation to 'fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.' " (Alford, supra, 12 Cal.App.5th at p. 977, quoting High, supra, at p. 1200.) Appellate courts may correct clerical errors of abstract of judgments at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Both parties also contend the abstract of judgment should be corrected to separately list the statutory base and penalty assessment for the laboratory analysis and drug program fees. The abstract of judgment must be corrected to show the base amount and penalty assessment amounts for the laboratory analysis and drug program fees because abstracts of judgment must detail each fine and fee.
DISPOSITION
The judgment is modified to strike the order for no contact or visitation. Otherwise, the judgment is affirmed, and the matter is remanded with directions to the trial court to prepare an amended abstract of judgment consistent with this opinion. The trial court is directed to forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. NARES, J.