Opinion
NOT TO BE PUBLISHED IN
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA094095, Cynthia Rayvis, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle Supervising Deputy Attorney General, for Plaintiff and Respondent.
TURNER, P. J.
In a plea bargain, defendant, Efraim Rosado, pled no contest to one count of methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)) and admitted the truth of the allegations he sustained one prior violent felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and served one prior prison term. (§ 667.5, subd. (b).) Defendant was sentenced to the middle term of two years, which was doubled (§§ 667, subd. (e)(2); 1170.12, subd. (c)(1)) plus a consecutive one-year term because of his prior prison term. (§ 667.5, subd. (b).) The trial court imposed a $200 section 1202.4, subdivision (b) restitution fine and suspended a $200 section 1202.45 parole revocation fine. Defendant was ordered to pay a $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee and a $20 section 1465.8 court security fee. Defendant was awarded 426 days of presentence credits consisting of 284 days of actual custody plus 142 days of conduct credit.
Unless otherwise noted, all further statutory references are to the Penal Code.
On December 28, 2006, defendant filed a notice of appeal. On March 1, 2007, we issued an order to show cause as to why the appeal should not be dismissed for failure to obtain a probable cause certificate. On April 3, 2007, defendant moved to amend or construe the notice of appeal to include non-certificate issues. On April 6, 2007, we granted defendant’s motion and vacated the order to show cause.
After examination of the record, appointed appellate counsel filed an “Opening Brief” in which no issues were raised. Instead, appointed appellate counsel requested that we independently review the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. We have examined the entire record and are satisfied that appointed appellate counsel has fully complied with his responsibilities. No argument exists favorable to defendant. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Wende, supra, 25 Cal.3d at p. 441.)
While this appeal was pending, we issued our opinion in People v. Chavez (2007) 150 Cal.App.4th 1288, 1291-1303. Chavez discussed, among other things, the effects of the Government Code section 70732, subdivision (a) state court construction penalty on: the fines typically imposed in a criminal case; the Health and Safety Code section 11372.5, subdivision (a) laboratory fee; and the section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. We requested additional briefing on the effect of Chavez on the fines imposed in this case.
The trial court imposed a $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee. The trial court was also obligated to impose penalty assessments pursuant to section 1464, subdivision (a) in the sum of $50 and Government Code section 76000, subdivision (a) in the amount of $35 on the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee. (People v. Chavez, supra, 150 Cal.App.4th at pp. 1291-1293; People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.)
In addition, the drug laboratory fee is subject to the state court construction penalty in Government Code section 70372, subdivision (a) which states in relevant part, “[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .” The state court construction penalty applies to all fines which includes the Health and Safety Code section 11372.5, subdivision (a) laboratory fee. Health and Safety Code section 11372.5, subdivision (a) refers to the fee as an increment of the total fine. The laboratory fee is an increment of the total fines imposed by the trial court. (People v. Martinez, supra, 65 Cal.App.4th at p. 1522; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.) Hence, the $25 state court construction penalty is to be added to the Health and Safety Code section 11372.5, subdivision (a) laboratory fee. (People v. Chavez, supra, 150 Cal.App.4th at p. 1292; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.)
Health and Safety Code section 11372.5, subdivision (a) states: “Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the Business and Professions Code shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment. [¶] With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law.”
The Government Code section 70372, subdivision (a) state court construction penalty extends to the section 1464, subdivision (a) and Government Code section 76000 subdivision (a) penalty assessments as well. Thus, on the $50 section 1464, subdivision (a) penalty assessment, an additional $25 state court construction penalty must be imposed. The state court construction penalty on the Government Code section 76000, subdivision (a) penalty assessment in this case is $17.50 ($15 for the first $30 and $2.50 for the final $5 which is the “fraction thereof”). (See People v. Chavez, supra, 150 Cal.App.4th at p. 1293.)
Also, the trial court imposed a $200 section 1202.4, subdivision (b)(1) restitution fine and stayed the $200 section 1202.45 parole revocation restitution fine. These two restitution fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. (§ 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) However, the case is different in terms of the Government Code section 70372, subdivision (a) state court construction penalty which, as noted, states in part, “[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .” The state court construction penalty applies to “every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . .” which includes restitution fines. Therefore, a state court construction penalty of $100 is to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. (Needless to note, the addition to the section 1202.45 parole revocation restitution fines is stayed.) The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is modified to impose the penalty assessments and state court construction penalties discussed in the body of this opinion. The judgment is affirmed in all other respects. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation by the superior court clerk.
We concur: ARMSTRONG, J. KRIEGLER, J.