Opinion
C042147.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES HERSHEL PRATHER, JR., Defendant and Appellant.
Defendant Charles Herschel Prather, Jr., entered into a negotiated plea of no contest to possession of ephedrine for the purpose of manufacturing methamphetamine in violation of Health and Safety Code section 11383, subdivision (c)(1) in case No. CRF01-664, and to manufacturing a controlled substance in violation of Health and Safety Code section 11379.6, subdivision (a) in case No. CRF02-221. In exchange for his plea, the remaining charges and enhancements were dismissed.
The trial court sentenced defendant to an aggregate term of eight years four months in state prison, a seven-year upper term on the manufacturing offense and one-third the middle term, or 16 months, for the possession offense. He was given credit for 159 days of actual custody and 80 days of conduct credit (Pen. Code, § 4019), for a total of 239 days of credit in case No. CRF-02-221. The trial court imposed restitution fines of $200 in case No. CRF-01-644 and $600 in case No. CRF-02-221 under Penal Code section 1202.4, subdivision (b) and stayed additional restitution fines in the same respective amounts pursuant to Penal Code section 1202.45 pending successful completion of parole. Defendant was ordered to pay a $135 criminal laboratory analysis fee on each case — an amount that includes the appropriate state and county penalty assessments. (Health & Saf. Code, § 11372.5, subd. (a); Pen. Code, § 1464; Gov. Code, § 76000.) Defendant was also ordered to pay a $150 drug program fee on each case. (Health & Saf. Code, § 11372.7.) Finally, defendant was ordered to register as a controlled substance offender pursuant to Health and Safety Code section 11590.
Defendant appeals. No certificate of probable cause is contained in the record on appeal.
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 have elapsed, and we have received no communication from defendant.
We note an error that must be corrected. The court imposed a $150 drug program fee (Health & Saf. Code, § 11372.7) in each case but failed to impose any state or county penalty assessments (Pen. Code, § 1464; Gov. Code, § 76000).
Penal Code section 1464 provides, in relevant part, as follows: "(a) Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, there shall be levied a state penalty, in an amount equal to ten dollars ($10) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . ."
Government Code section 76000 provides, in relevant part, as follows: "(a) In each county there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . ."
The imposition of penalty assessments on the criminal laboratory analysis fee and the drug program fee is mandatory. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257; People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522; People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1696.) It is within our power to correct this omission on appeal. (People v. Stone (1999) 75 Cal.App.4th 707, 717-718; see also People v. Hong (1998) 64 Cal.App.4th 1071, 1084 [modifying judgment to reflect mandatory restitution fine].)
Here, the state penalty assessment on the $150 drug program fee is $150 (Pen. Code, § 1464) and the county penalty assessment is $105 (Gov. Code, § 76000). The mandatory penalty assessment must be levied for the $150 drug program fee imposed in each case. We shall order the judgment modified and the abstract of judgment corrected to reflect these assessments. (People v. Stone, supra, 75 Cal.App.4th at pp. 717-718.)
Additionally, the trial court imposed the correct total amount in each case for the criminal laboratory analysis fee, plus penalty assessments but failed to differentiate them. To avoid confusion and protect defendant from the payment of excessive fees and penalty assessments, we shall modify the judgment to clarify the nature and amounts of the fees and penalty assessments imposed by the trial court.
Accordingly, we modify the judgment by striking the $135 criminal laboratory analysis fees (Health & Saf. Code, § 11372.5, subd. (a)) imposed in each case and imposing a mandatory $50 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)) in each case, along with the $50 state (Pen. Code, § 1464) and $35 county (Gov. Code, § 76000) penalty assessments on each of the laboratory fees.
Finally, we note an error in the calculation of credit for time spent in custody. The court awarded defendant 159 actual days and 80 conduct days for a total of 239 days of presentence custody credit. Pursuant to Penal Code section 4019, subdivision (f), the court should have awarded defendant only 78 conduct days. (People v. Smith (1989) 211 Cal.App.3d 523, 527.) Penal Code section 4019 provides that conduct credits are to be given in increments of four days and that no credit is awarded for anything less. (Pen. Code, § 4019, subd. (f).; People v. Smith, supra, 211 Cal.App.3d at p. 527.) Two days of credit must be deducted from credits awarded to defendant.
Because these errors constitute an unauthorized sentence, we are authorized to correct them now. (People v. Smith (2001) 24 Cal.4th 849, 854; People v. Walkkein (1993) 14 Cal.App.4th 1401, 1411.) In the interests of judicial economy, we do so without having requested supplemental briefing. A party claiming to be aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
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 state and county penalty assessments (Pen. Code, § 1464; Gov. Code, § 76000) of $150 and $105, respectively, on each of the two drug program fees (Health & Saf. Code, § 11372.7, subd. (a)) and to strike the $135 criminal laboratory analysis fees (Health & Saf. Code, § 11372.5, subd. (a)) imposed in each case and to impose a mandatory laboratory analysis fee of $50 in each case, along with state and county penalty assessments of $50 and $35, respectively, on each of the laboratory fees. The judgment is also modified to provide for 159 actual days served and 78 conduct days for a total of 237 days of presentence custody credit. As modified, the judgment is affirmed. The trial court is ordered to send a certified copy of the amended abstract of judgment reflecting the modifications of judgment to the Department of Corrections.
We concur: DAVIS, Acting P.J., ROBIE, J.