Opinion
A129969 A129972
11-04-2011
THE PEOPLE, Plaintiff and Respondent, v. CODY LEE WISECARVER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. Nos. SC169293D, SC141651A and SC141728A)
In this consolidated appeal, defendant Cody Lee Wisecarver (appellant) appeals the sentencing court's imposition of a $2,000 fine pursuant to Health and Safety Code section 11350, subdivision (d), following his guilty plea to sale of OxyContin (id., § 11352, subd. (a)(1)) and the court's termination of probation in two other cases. The People concede imposition of the fine was unauthorized and should be stricken. We agree.
BACKGROUND
Since appellant's claim of error concerns only a sentencing issue, a detailed recitation of facts is unnecessary.
On May 20, 2005, the district attorney filed a complaint in case No. SC141651A (hereafter, Case A) charging appellant with obliterating the identification of a firearm (Pen. Code, § 12090) (count 1); possession of marijuana for sale (Health & Saf. Code, § 11359) (count 2); and possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)) (count 3).
On May 25, 2005, the district attorney filed a complaint in case No. SC141728A (hereafter, Case B) charging appellant with possession of marijuana for sale while released on bail in Case A. (Health & Saf. Code, § 11359; Pen. Code, § 12022.1, subd. (b).)
On January 6, 2006, pursuant to a negotiated disposition, appellant pled guilty in Cases A and B to possession of marijuana for sale. (Health & Saf. Code, § 11359.) He also admitted the on-bail allegation in Case B. (Pen. Code, § 12022.1, subd. (b).) The remaining counts in Case A were dismissed. At a March sentencing hearing on Cases A and B, imposition of sentence was suspended and appellant was placed on three years' probation subject to standard conditions.
Between November 2007 and March 2010, the district attorney filed multiple petitions to revoke probation in Cases A and B. Those petitions were sustained, probation was revoked and then reinstated.
On March 22, 2010, the district attorney filed a petition to revoke probation in Cases A and B alleging appellant's possession, transportation, and sale of OxyContin.
Also on March 22, 2010, the district attorney filed a complaint in case No. SC169293D (hereafter, Case C) charging appellant with sale of OxyContin (Health & Saf. Code, § 11352, subd. (a)) (count 1); possession of OxyContin for sale (id., § 11351) (counts 2 and 8); conspiracy to sell OxyContin (Pen. Code, § 182, subd. (a)(1)) (count 3); and transportation of OxyContin (Health & Saf. Code, § 11352, subd. (a)) (counts 4 and 7). The complaint also alleged the two prior marijuana possession convictions.
On our own motion, we judicially notice the fact that OxyContin contains oxycodone <http://pdr.net> (as of Nov. 4, 2011). As relevant here, oxycodone is a schedule II controlled substance under Health and Safety Code section 11055, subdivision (b)(1)(N). Effective January 1, 2011, that subdivision was renumbered as (b)(1)(M). (Stats. 2010, ch. 76, § 1.)
Counts 5 and 6 were alleged against appellant's codefendants.
On May 26, 2010, pursuant to a negotiated disposition, appellant pled guilty in Case C to the count 1 sale of OxyContin (Health & Saf. Code, § 11352, subd. (a).) He admitted the prior marijuana possession convictions in Cases A and B and a probation ineligibility allegation (Pen. Code, § 1203, subd. (e)(4)), with the understanding that he would not be sentenced to more than four years eight months in state prison. The remainder of the counts in Case C were dismissed on the district attorney's motion. Appellant also admitted violating his probation in Cases A and B, and the court revoked probation in those cases.
On September 15, 2010, the court sentenced appellant to four years in state prison in Case C. It imposed a $2,000 fine pursuant to Health and Safety Code section 11350, subdivision (d), an $800 restitution fine (Pen. Code, § 1202.4), and an $800 parole revocation fine (id., § 1202.45), which it imposed but suspended. At the continued sentencing hearing on September 23, the court terminated appellant's probation in Cases A and B as unsuccessful; ordered him to serve 30 additional days in jail in each of those cases, consecutive to any other sentence; and awarded credit for time served. Appellant filed timely notices of appeal.
DISCUSSION
Appellant contends the court's imposition of the $2,000 fine pursuant to Health and Safety Code section 11350, subdivision (d) was unauthorized and must be stricken.
All undesignated section references are to the Health and Safety Code.
The issue is reviewable on appeal despite appellant's failure to raise it below. (People v. Smith (2001) 24 Cal.4th 849, 852, citing People v. Welch (1993) 5 Cal.4th 228, 235.)
Section 11350, subdivision (d) provides: "Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: [¶] (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. [¶] (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. [¶] (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine."
Appellant argues, and the People concede, the imposition of this fine was unauthorized because he was not charged or convicted of violating section 11350. In Cases A and B he pled guilty to possession of marijuana for sale under section 11359 and was granted probation. In Case C he pled guilty to sale of OxyContin under section 11352, subdivision (a) and admitted violating his probation in Cases A and B. At sentencing, the court revoked his probation in Cases A and B and sentenced him to a four-year prison term in Case C.
The factual basis for the plea is undisputed. On March 19, 2010 police officers observed appellant and his codefendant engage in a hand-to-hand sale of OxyContin.
Although he was charged in counts 2 and 8 of Case C with possession for sale of OxyContin pursuant to section 11351, those charges were dismissed in accord with his negotiated plea.
The parties rely on People v. Thomas (1996) 42 Cal.App.4th 798 (Thomas). In that case, as here, the defendant pled guilty to violating section 11352, subdivision (a). On appeal the defendant contended the sentencing court exceeded its authority by imposing a $70 fine pursuant to section 11350, subdivision (c). (Thomas, at p. 800.) The defendant argued the fine pursuant to section 11350, subdivision (c) could only be imposed when a defendant is convicted of violating section 11350 and, because he was convicted of violating section 11352, imposition of the fine was unauthorized. (Thomas, at pp. 800, 804.)
The Thomas defendant sold cocaine to a police informant. (Thomas, supra, 42 Cal.App.4th at p. 800.)
Section 11350, subdivision (c) provides in part: "Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with the proceeds of this fine to be used in accordance with Section 1463.22 of the Penal Code. . . ."
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After reviewing the legislative history of section 11350, previous legislation on the subject, and other similar provisions, the Thomas court concluded that the section 11350, subdivision (c) fine is authorized only when section 11350 is violated. (Thomas, supra, 42 Cal.App.4th at pp. 801-804.) In reaching that conclusion the court noted that a person can violate section 11352 ("transporting, importing, selling, furnishing, administering, or giving away certain substances, or offering to commit any of these acts") without violating section 11350 (illegal possession of a controlled substance). (Thomas, at p. 804, citing, People v. Blake (1960) 179 Cal.App.2d 246, 254, disapproved on other grounds in People v. Jackson (1963) 59 Cal.2d 468 [possession not required for offer to sell]; People v. Watterson (1991) 234 Cal.App.3d 942, 947 [possession not required for transportation].) Thomas also concluded that construing section 11350, subdivision (c) to allow imposition of a fine in the absence of a violation of section 11350 would present due process concerns because it would violate due process to punish the defendant for possession of one of the substances in subdivision (a) or (b), an offense for which the defendant was not charged, tried, or convicted. (Thomas, at p. 804.) Thomas's reasoning applies in this case.
Here, the $2000 fine was imposed on appellant under subdivision (d) of section 11350. That subdivision unambiguously applies "whenever a court grants probation pursuant to a felony conviction under this section." (Italics added.) In addition, subdivision (d)(1) unambiguously provides for at least a $1,000 fine or community service "[f]or a first offense under this section," and subdivision (d)(2) unambiguously provides for at least a $2,000 fine or community service "[f]or a second or subsequent offense under this section.''(Italics added.) Appellant was granted probation following his guilty pleas in Cases A and B to possession of marijuana (§ 11359), and in Case C he pled guilty to sale of OxyContin pursuant to section 11352, subdivision (a). Because appellant was neither convicted of violating section 11350 nor granted probation under that section, the $2,000 fine imposed under section 11350, subdivision (d) was unauthorized.
DISPOSITION
The $2000 fine imposed pursuant to section 11350, subdivision (d) is stricken. The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
SIMONS, J. We concur. JONES, P.J. NEEDHAM, J.