Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC938530
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant Cris Moreno pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); a misdemeanor), and driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a); a misdemeanor). He also admitted that he had one prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and that he had served three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to 32 months in prison and ordered him to serve a concurrent term of 90 days in jail. Defendant was awarded 291 days of presentence credit, consisting of 195 actual days plus 96 days conduct credits. The court ordered defendant to pay various fines and fees, including a restitution fine of $400 pursuant to section 1202.4, subdivision (b), and a Criminal Justice Administration fee of $129.75 for the City of San Jose.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the restitution fine of $400 violates his plea agreement and should be reduced to $220. He also claims that he is entitled to an additional 98 days of presentence credits under section 4019.
For reasons that we will explain, we will affirm the judgment as modified.
The trial court orally imposed a Criminal Justice Administration fee of $129.75 for the City of San Jose, but the fee is not reflected in the abstract of judgment. We will order the abstract corrected to include this amount.
II. FACTUAL AND PROCEDURAL BACKGROUND
Facts
The following facts are taken from a San Jose police report. On February 5, 2009, a San Jose police officer conducted a traffic enforcement stop of a vehicle containing two individuals. Defendant was the driver. The police officer believed defendant was under the influence of a controlled substance because he was sweating and “had fluttering eyelids, dilated non reactive pupils, and [a] nervous demeanor.” Defendant’s driver’s license had been suspended and he was on parole. The police officer found a “crystal type substance” in a “clear plastic wrapper” on the ground outside the vehicle. Defendant acknowledged that he had “discarded it.” In searching the vehicle, the police officer found, among other things, a plastic bag with a “crystal type substance” in the center console of the vehicle. Defendant and the passenger indicated that the contraband in the center console did not belong to them and they did not know who had placed it there. Both defendant and the passenger were arrested.
The substances found by the police officer were later tested by the Santa Clara County Crime Laboratory and determined to be methamphetamine.
Complaint
On March 25, 2009, defendant was charged by complaint with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 2, a misdemeanor), and driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a); count 4, a misdemeanor). The complaint further alleged that he had one prior strike (§§ 667, subds. (b)-(i), 1170.12) and had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Count 1, possession of methamphetamine, and count 3, being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)), were alleged against a codefendant, who is not a party to this appeal.
Defendant’s Plea
On July 14, 2009, a hearing was held concerning defendant’s plea. At the outset of the hearing, the trial court stated that it was the court’s “understanding that based on the negotiations that [defendant] will be pleading as charged. The indicated sentence is a 32-month top/bottom, and we would do a waived referral and put off the sentencing for a period of time.” Defense counsel responded, “Correct.”
The court then asked defendant several questions. Defendant indicated that he had enough time to talk to his attorney “regarding the nature of the charges and the plea and the consequences of [his] plea, ” and that he was “satisfied” with his attorney’s advice. In response to the court’s question, “Have any promises been made to you with respect to what’s going to happen today other than what’s been put on the record, ” defendant stated, “No.”
Thereafter, the court informed defendant of his constitutional rights. Defendant indicated that he understood those rights and gave them up. The court next advised defendant concerning deportation, the loss of welfare benefits, registration as narcotics offender, providing DNA samples, and not owning a firearm or ammunition as possible consequences of his conviction or guilty plea.
Relevant here, the court then stated to defendant: “You could be subject to the following fines and fees: An I.C.M.F. fee of $30 per count; there’s a restitution fund fine of $220, and a probation violation restitution fund fine in the same amount, which will be suspended. [¶] I could impose additional penalties up to $10,000 plus assessments.” (Italics added.)
The court continued by referring to other fees, indicated the maximum sentence, discussed parole, and explained the consequence of being convicted of a new felony.
Thereafter, defendant pleaded guilty to all three counts. He also admitted the prior strike and that he had served three prior prison terms within the meaning of section 667.5, subdivision (b). Defense counsel concurred with the plea, and defense counsel and the prosecutor stipulated to a factual basis. The court ultimately found that defendant had “been properly advised of the charges, the elements of the charges and the possible defenses and the consequences of the plea, ” that defendant had “been fully informed of his Constitutional rights and [had] made a knowing, intelligent, free and voluntary waiver of those rights, ” and that there was a factual basis for the plea.
Sentencing
In a “waived referral” memorandum, the probation officer recommended to the court that a restitution fine of $400 be imposed under the formula set forth in section 1202.4, subdivision (b).
On August 17, 2009, the trial court denied probation and sentenced defendant to 32 months in prison for count 1, possession of methamphetamine. The court did not explain how it calculated this sentence. For count 2, being under the influence of methamphetamine, and count 4, driving with a suspended or revoked license, defendant was ordered to serve 90 days in county jail, which was to run concurrent to the time imposed for count 1. Pursuant to section 1385, the court struck the additional punishment for the three prior prison terms (§ 667.5, subd. (b)). The court awarded 291 days of presentence credit, consisting of 195 actual days plus 96 days conduct credits. The court ordered defendant to pay various fines and fees, including a restitution fine of $400 pursuant to section 1202.4, subdivision (b), and a Criminal Justice Administration fee of $129.75 for the City of San Jose.
Defendant filed a timely notice of appeal on October 1, 2009.
III. DISCUSSION
Restitution Fine
Defendant contends that the trial court’s imposition of the $400 restitution fine violated his plea agreement. He asserts that “[a]t the time of [his] change of plea, the trial court promised to impose a $220 restitution fine....” Defendant believes that the “appropriate remedy for the court’s violation of the plea agreement is to reduce the fine to $220.” He also argues that he has not waived the error on appeal because the court failed to comply with the requirements of section 1192.5.
The People maintain that “the amount of the restitution fine was not part of the plea bargain.” Rather, “[i]t was after the court’s summary of what [defendant] would plead to, and after the court’s advisement of [defendant’s] constitutional rights, that the court advised [defendant] of the potential consequences of his plea, including that he ‘could be subject to’ a $220 restitution fund fine.” The People contend that the advisement that defendant “ ‘could be subject to’ a fine in the amount $220” indicated that the amount “was not yet determined.” The People further argue that even if the court’s statement “misleadingly suggested a maximum amount, it was at worst a misadvisement of a consequence of the guilty plea, rather than a misadvisement of [defendant’s] constitutional rights, ” and defendant’s failure to raise the error below resulted in a waiver of the issue on appeal.
Section 1202.4, subdivision (b), provides that a court must impose a restitution fine unless it finds and states on the record “compelling and extraordinary reasons for not doing so.” “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony....” (§ 1202.4, subd. (b)(1).) The amount of a felony restitution fine may be calculated by multiplying two hundred dollars “by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).)
In People v. Walker (1991) 54 Cal.3d 1013 (Walker), the California Supreme Court considered the erroneous imposition of a restitution fine. In Walker, the defendant agreed to plead guilty in exchange for an agreed-upon prison sentence. “The court orally explained to defendant that ‘the maximum penalties provided by law for this offense are either 3 years, 5 years, or 7 years in state prison and a fine up to $10,000, ’ followed by a period of parole.” (Walker, supra, 54 Cal.3d at p. 1019.) The court did not specify whether the fine mentioned was a “penal fine” under sections 672 and 12303.3 or a restitution fine under former Government Code section 13967 (Stats. 1990, ch. 45, § 2, p. 256). (Walker, supra, 54 Cal.3d at p. 1019.) At sentencing, the trial court did not impose a penalty fine, but it did impose a restitution fine of $5,000. On appeal, the defendant claimed that the restitution fine was not part of the plea bargain and should be stricken. (Id. at p. 1019.)
The Walker court explained that “[d]etermining whether the restitution fine in this case was properly imposed and, if not, the appropriate remedy to correct the error, requires consideration of two related but distinct legal principles. [Citation.] [¶] The first principle concerns the necessary advisements whenever a defendant pleads guilty, whether or not the guilty plea is part of a plea bargain. The defendant must be admonished of and waive his constitutional rights. [Citations.] In addition, and pertinent to this case, the defendant must be advised of the direct consequences of the plea. [Citation.] [¶] The second principle is that the parties must adhere to the terms of a plea bargain. [Citation.] [¶] In any given case, there may be a violation of the advisement requirement, of the plea bargain, or of both. Although these possible violations are related, they must be analyzed separately, for the nature of the rights involved and the consequences of a violation differ substantially.” (Walker, supra, 54 Cal.3d at pp. 1019-1020.)
The Walker court discussed the consequences of failing to advise of the consequences of the plea. “[W]hen the only error is a failure to advise of the consequences of the plea, the error is waived if not raised at or before sentencing. Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is ‘reasonably probable’ the defendant would not have pleaded guilty if properly advised. [Citation.]” (Walker, supra, 54 Cal.3d at p. 1023.)
The Walker court then discussed plea bargains. The court stated that “when a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (Walker, supra, 54 Cal.3d at p. 1024.) A “restitution fine... qualifies as punishment for this purpose. Accordingly, the restitution fine should generally be considered in plea negotiations.” (Ibid.) Where the punishment exceeds the terms of the bargain, a “defendant’s constitutional right to the benefit of his bargain is not waived by mere failure to object at sentencing” in the absence of advisements in compliance with section 1192.5. (Id. at p. 1025.) Moreover, “[a] violation of a plea bargain is not subject to harmless error analysis.” (Id. at p. 1026.)
Section 1192.5 states in part: “If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.”
Addressing the facts of the case before it, the Walker court observed that the trial court “only advised the defendant that a $10,000 fine was a possible consequence of the guilty plea. This was inadequate. The court should have advised defendant there was a possible $10,000 penalty fine and a mandatory restitution fine of between $100 [now $200] and $10,000.” (Walker, supra, 54 Cal.3d at p. 1029.) This error, standing alone, would not have entitled the defendant to a remedy because he waived the error by not objecting to the fine when it was imposed, and the fine imposed was less than that advised so he was not prejudiced by the incomplete admonition. (Ibid.) However, “absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing.” (Walker, supra, 54 Cal.3d at p. 1025.) Thus, the court concluded that since the defendant had not received the section 1192.5 advisement, he was able to assert on appeal that “the $ 5, 000 restitution fine was a significant deviation from the negotiated terms of the plea bargain.” (Walker, supra, 54 Cal.3d at p. 1029.) “In concluding that the imposition of such a substantial fine constituted a violation of the plea agreement..., [the California Supreme Court] implicitly found that the defendant... reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed.” (In re Moser (1993) 6 Cal.4th 342, 356 (Moser); see also People v. Crandell (2007) 40 Cal.4th 1301, 1310 (Crandell).)
As for the appropriate remedy, the California Supreme Court reasoned that specifically enforcing the plea bargain by striking the fine altogether would violate the mandatory nature of the fine, but allowing the defendant to withdraw his plea “will often run counter to the interests of crime victims.” (Walker, supra, 54 Cal.3d at p. 1027.) The court ultimately determined that “[r]educing the fine to the [statutory minimum] would... achieve substantial compliance with the terms of the plea bargain without violating the statutory requirement of a restitution fine.” (Id. at p. 1028.)
In People v. McClellan (1993) 6 Cal.4th 367 (McClellan), the trial court also failed to advise the defendant of a consequence of his plea, but the California Supreme Court ultimately concluded that defendant’s plea agreement had not been violated. In McClellan, the trial court failed “to advise defendant that his plea of guilty to the offense of assault with intent to commit rape would require that he register as a sex offender pursuant to section 290.” (Id. at p. 372.) The court did, however, ask defendant “whether anyone had promised him anything other than the stated terms of the plea agreement, to which defendant responded in the negative.” (Ibid.) The probation officer’s report included a recommendation that defendant be required to register as a sex offender. At sentencing, the trial court imposed the requirement without objection from defendant. (Id. at p. 373.) On appeal, the defendant contended, among other things, that the registration requirement violated his plea agreement.
The California Supreme Court observed that “[w]hen the trial court inquired of defense counsel, and of defendant personally, whether each of them understood the plea agreement to embrace the terms identified by the court, each responded affirmatively. The statutory requirement of sex offender registration was not mentioned by the parties or by the court at the change of plea hearing.” (McClellan, supra, 6 Cal.4th at p. 379.) Further, the defendant did “not suggest that the challenged element of his sentence was a subject of negotiation (or even discussion) during the plea-negotiation process, or that the prosecutor made any promises or inducements relevant to the challenged element. [Citation.]” (Ibid.) The court determined that “the trial court’s omission, at the change of plea hearing, of advice regarding defendant’s statutory obligation to register as a sex offender did not transform the court’s error into a term of the parties’ plea agreement.” (Ibid., italics omitted.) The court distinguished Walker by explaining that “unlike the amount of a restitution fine, sex offender registration is not a permissible subject of plea agreement negotiation; neither the prosecution nor the sentencing court has the authority to alter the legislative mandate that a person convicted of assault with intent to commit rape shall register as a sex offender pursuant to the provisions set forth in section 290.” (Id. at p. 380.) Moreover, “[b]ecause the registration requirement is statutorily mandated for every person convicted of assault with intent to commit rape, that requirement was an inherent incident of defendant’s decision to plead guilty to that offense and was not added ‘after’ the plea agreement was reached.” (Ibid.)
In comparison to Walker and McClellan, Moser, supra, 6 Cal.4th 342 involved incorrect advice by the trial court. Before accepting the petitioner’s guilty plea, the trial court “correctly advised the [petitioner] of the length of the potential prison term, but erroneously advised [him] as to the length of time he... would remain on parole following release from prison.” (Id. at p. 345.) The Moser court observed that “prior to accepting petitioner’s plea of guilty, the trial court recited on the record the terms of the parties’ plea agreement, noting that petitioner had agreed to plead guilty to the lesser charge of second degree murder in exchange for the People’s agreement to forego a trial on the first degree murder charge and to dismiss the firearm-use allegation. The trial court inquired of petitioner whether the court’s statement was an accurate recitation of the plea agreement, and he responded affirmatively. Nothing in the record indicate[d] that the length of the parole term, improperly described by the trial court, was an element of the parties’ plea negotiations and resulting agreement so as to render imposition of the lifetime period of parole mandated by statute a violation of the plea agreement. [Citation.]” (Id. at p. 356.) However, because the People appeared to concede in the trial court that a shorter parole term was part of the parties’ plea agreement, the California Supreme Court remanded the matter to permit the petitioner to present evidence pertaining to whether the length of his term of parole was a part of the plea negotiations. (Id. at pp. 357-358.)
The California Supreme Court revisited the issue of restitution fines in Crandell, supra, 40 Cal.4th 1301. In Crandell, the trial court advised the defendant before taking his no contest plea that “he would ‘have to pay a restitution fund fine of a minimum of $200, a maximum of $ 10, 000.’ ” (Id. at p. 1305.) The defendant also confirmed that no promises were made to him other than the length of his prison term. (Ibid.) A probation report prepared thereafter contained a recommendation that a $2,600 restitution fine be imposed pursuant to the formula set forth in section 1202.4, subdivision (b)(2). (Id. at p. 1306.) Consistent with this recommendation, the court imposed a $2,600 restitution fine at sentencing. (Ibid.) On appeal, the defendant contended that imposition of the fine violated his plea agreement.
The California Supreme Court disagreed. The court observed that the trial court had “accurately advised” the defendant concerning the restitution fine and had confirmed that the prosecution had not made any promises to the defendant other than regarding the length of his prison term. (Crandell, supra, 40 Cal.4th at p. 1309.) The court explained that “[t]hese facts distinguish the case from Walker, where the court advised the defendant only that the ‘ “maximum penalties provided by law” ’ for his offense included ‘ “a fine of up to $ 10, 000” ’ and obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the court’s discretion. [Citation.] [¶] Thus, while ‘the defendant in [Walker] reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed’ [citation], defendant in this case was flatly informed: ‘You will be ordered to pay restitution to the victims in this case.’ In light of these circumstances, it is clear that when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed.” (Id. at pp. 1309-1310, italics omitted.)
In this case, the trial court stated that it was the court’s “understanding that based on the negotiations that [defendant] will be pleading as charged. The indicated sentence is a 32-month top/bottom, and we would do a waived referral and put off the sentencing for a period of time.” Defense counsel confirmed the court’s understanding of the plea negotiations by responding, “Correct.” Defendant thereafter indicated that he had enough time to talk to his attorney “regarding the nature of the charges and the plea and the consequences of [his] plea, ” and that he was “satisfied” with his attorney’s advice. In response to the court’s question, “Have any promises been made to you with respect to what’s going to happen today other than what’s been put on the record, ” defendant stated, “No.” Later, the trial court addressed the subject of fines and fees. The court stated, “You could be subject to the following fines and fees: An I.C.M.F. fee of $30 per count; there’s a restitution fund fine of $220, and a probation violation restitution fund fine in the same amount, which will be suspended. [¶] I could impose additional penalties up to $10,000 plus assessments.” (Italics added.) The court then identified several other fees.
In view of the record, we determine that defendant’s plea agreement did not include an agreement concerning the amount of the restitution fine. The record reflects that the negotiations concerned the charges to which defendant would plead guilty, the length of defendant’s sentence, a waived referral, and the time for sentencing. Similar to the defendants in McClellan, Moser, and Crandell, defendant in this case confirmed the content of the parties’ agreement, indicating that no other promises had been made to him. It was only after defense counsel and defendant confirmed the content of the agreement that the court advised defendant concerning the amount of the restitution fine. There is nothing in the record to suggest that the amount stated by the court was based on an agreement by defendant. We also observe that the probation officer recommended in a “waived referral” memorandum that the court impose a restitution fine of $400 under the formula set forth in section 1202.4, subdivision (b). At the sentencing hearing, the court imposed that amount, apparently without recollecting that it had previously advised defendant of a lesser amount. If a smaller restitution fine had been a part of defendant’s plea negotiations, presumably defendant or his counsel would have objected to the recommendation by the probation officer or otherwise objected at the sentencing hearing. No objection was made, which suggests that none of the parties in the trial court believed a restitution fine of $400 violated the terms of the bargain. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1385.) Based on the record, it appears that the parties intended to leave the amount of the restitution fine to the court’s discretion.
Accordingly, because the amount of the restitution fine was not a part of defendant’s plea agreement, the court did not violate the agreement by imposing an amount different than that advised by the court at the plea hearing. However, to the extent that the defendant may not have fully understood the advisement and mistakenly believed that the restitution fine would be $220, we will reduce the restitution fine to $220 in the interest of justice.
Presentence Custody Credits
Defendant was awarded 291 days of presentence credit, which consisted of 195 actual days plus 96 days conduct credits. On appeal, defendant contends that amended section 4019 applies to him because his case is not yet final and he is entitled to an additional 98 days of presentence credits under the amended section.
The People respond that defendant “is not eligible for increased custody credit under the amended version of section 4019” because of his prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) for robbery. The People also argue that amended section 4019 operates prospectively only and therefore defendant is not entitled to additional credits.
In reply, defendant contends that the trial court struck his prior conviction and because his “ ‘strike’ was not part of the current sentence, ” he is entitled to additional credits under amended section 4019. He further asserts that amended section 4019 applies retroactively.
At the time defendant was sentenced in August 2009, section 4019, former subdivision (f) provided that “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” The amended version of section 4019 now generally provides that “if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody....” (§ 4019, subd. (f); see also § 4019, subds. (b)(1), (c)(1).) This new accrual rate does not, however, apply to certain classes of prisoners. Relevant here, “[i]f the prisoner... has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5, ” the prisoner will continue to be deemed to have served a term of six days for every four days spent in actual custody. (§ 4019, subds. (b)(2), (c)(2), (f).)
In this case, we need not decide whether the amendment to section 4019 providing for additional credits applies retroactively because we determine that even if it is retroactive, defendant is within the classes of prisoners who are not eligible for the additional credits.
Defendant pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 2, a misdemeanor), and driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a); count 4, a misdemeanor). He also admitted that he had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Defendant was subsequently sentenced to 32 months for count 1, possession of methamphetamine, and ordered to serve a concurrent term of 90 days in county jail for counts 2 and 4. According to the reporter’s transcript of the sentencing hearing, the court stated: “With regard to the three priors, pursuant to Penal Code section 667.5(b), I’m going to strike the additional punishment, and I’m going to strike the punishment for the strike prior, 667(b)-(i) and 1170.12, pursuant to Penal Code section 1385.” (Italics added.)
We assume the trial court misspoke when it stated that it was striking the punishment for defendant’s prior strike conviction, because a 32-month prison sentence for possession of methamphetamine is an unauthorized sentence without consideration of the prior strike. A felony conviction for possession of methamphetamine is punishable by imprisonment in the state prison for 16 months, two years, or three years. (Health & Saf. Code, § 11377, subd. (a); § 18.) Defendant agreed to a 32-month term for this offense. In order for defendant to be sentenced to 32 months, the court must have taken the lower term of 16 months and doubled it pursuant to the Three Strikes Law. Indeed, the probation report suggests this calculation. Moreover, the clerk’s minutes of the sentencing hearing and the abstract of judgment reflect that the punishment for defendant’s three prison priors (§ 667.5, subd. (b)) were stricken, but defendant’s prior strike was not stricken.
With defendant’s prior strike conviction in mind, we turn to section 4019. As we have stated, the greater accrual rate under amended section 4019 does not apply “[i]f the prisoner... has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.” (§ 4019, subds. (b)(2), (c)(2), (f).) Defendant’s prior strike arose from a conviction for robbery, which is a serious felony as defined in section 1192.7 and a violent felony as defined in section 667.5. (§§ 1192.7, subd. (c)(19), 667.5, subd. (c)(9).) In view of this prior strike conviction, defendant is not eligible for additional credits under amended section 4019. (§ 4019, subds. (b)(2), (c)(2), (f).)
IV. DISPOSITION
The judgment is modified to reduce the restitution fine to $220. The abstract of judgment is ordered modified to conform to the judgment by stating that defendant shall pay a Criminal Justice Administration fee of $129.75 for the City of San Jose. The “Aids fee” of $70 is ordered stricken from the abstract of judgment. The judgment as so modified is affirmed. The trial court is directed to prepare an amended abstract of
judgment reflecting the modifications ordered by this court and to forward a copy of the abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., MCADAMS, J.
We also observe that the abstract of judgment refers to an “Aids fee” of $70. The court did not orally impose this fee and it is not mandatory (Health & Saf. Code, §§ 11377, subd. (c), 11550, subd. (d)). We will order the fee stricken from the abstract of judgment.