Opinion
C042823.
11-10-2003
THE PEOPLE, Plaintiff and Respondent, v. STEFFON SIMMS, Defendant and Appellant.
Defendant Steffon Simms was found guilty by a jury of sale of cocaine base. (Health & Saf. Code, § 11352, subd. (a).) Defendant was sentenced to the low term of three years in prison, with credit for 155 actual days and conduct credit of 76 days. Without objection, the trial court ordered "restitution" or "fines" as listed on two pages of the probation report.
The probation report recommended imposition of a restitution fine of $800 under Penal Code section 1202.4; a drug laboratory fee of $50 under Health and Safety Code section 11372.5, plus a $50 penalty assessment under Penal Code section 1464 and a $35 penalty assessment under Government Code section 76000; a drug program fee of $150 under Health and Safety Code section 11372.7, plus a $150 penalty assessment pursuant to Penal Code section 1464 and a $105 penalty assessment pursuant to Government Code section 76000; a $70 AIDS education fine pursuant to Health and Safety Code section 11350, subdivision (c), plus a $70 penalty assessment under Penal Code section 1464 and a $49 penalty assessment under Government Code section 76000; and a main jail booking fee of $166 and classification fee of $36 pursuant to Government Code section 29550.2.
The abstract of judgment includes all these fines.
The probation report also includes a recommendation for submission of blood and saliva samples along with right thumb and palm prints under Penal Code section 296. That order is not included on the abstract of judgment, nor was it orally pronounced. Defendant is exempt from such submission because he was not convicted of one of the qualifying offenses listed in section 296. If articulated by the trial court and applicable, such submission should be included on the abstract of judgment, but that is not necessary for the submission to occur. (Cf. People v. Hong (1998) 64 Cal.App.4th 1071, 1083-1084.)
On February 24, 2003, during the pendency of this appeal, in response to defendants "motion for modification of sentence" and without objection by the prosecution, the trial court filed an order reducing the "restitution" to $500.
Neither party acknowledges the existence of this order, which is on file with this court. (Cal. Rules of Court, rule 35(e).) We do note the order was issued within 120 days of the judgment and is a reduction in sentence. (Pen. Code, § 1170, subd. (d).)
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.)
We requested supplemental briefing concerning whether the trial courts failure to orally pronounce the orders for fines and fees was error, and whether all such orders applied to defendant.
In response, appellate counsel for defendant filed a letter brief referring to the total of fines and fees on the abstract of judgment as "$1661" and the total of fines and fees in the probation report as "$1731," a "discrepancy of $70.00 in [defendants] favor." The People responded that defendant conceded "no non-waived and prejudicial error occurred and that all of the imposed fines and/or fees are applicable to him."
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 elapsed, and we received no communication from defendant.
We note several errors requiring correction.
First, among the list of fines recommended by the probation officer is imposition of an AIDS education fine under Health and Safety Code section 11350, subdivision (c), plus applicable penalty assessments. In People v. Thomas (1996) 42 Cal.App.4th 798 (Thomas), the Fifth District Court of Appeal exhaustively analyzed the history of this assessment and concluded it was applicable only to violations of Health and Safety Code section 11350, not to violations of Health and Safety Code section 11352. (Thomas, supra, 42 Cal.App.4th at pp. 804-805.) We are persuaded by this analysis and shall order the fine and its accompanying penalty assessments stricken as an unauthorized sentence.
Next, the postjudgment order of the trial court reducing the restitution fine imposed under Penal Code section 1202.4 to $ 500 should be included on a new abstract of judgment.
Finally, the trial court failed to impose a restitution fine, suspended pending successful completion of parole, under Penal Code section 1202.45. That fine is mandatory when a fine has been imposed under Penal Code section 1202.4. This is an error of law and must be corrected. (People v. Smith (2001) 24 Cal.4th 849, 853.)
The suspended restitution fine shall be in the same amount as the restitution fine imposed pursuant to Penal Code section 1202.4. (Pen. Code, § 1202.45.)
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, as follows:
1. All references to imposition of an AIDS education fine pursuant to Health and Safety Code section 11350, subdivision (c) and to the accompanying penalty assessments are stricken; and
2. A $500 restitution fine, suspended pending successful completion of parole, is imposed pursuant to Penal Code section 1202.45.
The superior court is ordered to prepare an amended abstract of judgment incorporating these changes and specifying that the restitution fine pursuant to Penal Code section 1202.4 is $500, and to forward a certified copy of the amended abstract to the Department of Corrections. As modified, the judgment is affirmed.
We concur: NICHOLSON, Acting P.J. and KOLKEY, J.