People v. Wharton CA2/8 ( 2016 )

Filed 1/12/16 P. v. Wharton CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B260317
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA425744)
v.
GENIEKA WHARTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, C.H.
Rehm, Jr., Judge. Affirmed in part; reversed in part with directions.
Nadezhda M. Habinek, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Michael R. Johnsen, Deputy
Attorney General, for Plaintiff and Respondent.
******
Genieka Wharton appeals from a judgment following her conviction for one count
of sale of a controlled substance. Pursuant to People v. Wende (1979) 25 Cal. 3d 436
(Wende), appellant’s counsel filed an opening brief requesting this court to review the
record and determine whether any arguable issues exist on appeal. We have reviewed the
entire record and find no arguable issue that would result in reversal of appellant’s
conviction. But we invited briefing on two issues related to the fines and fees imposed
by the trial court. Finding error in the imposition of those fines and fees, we must
remand appellant’s sentence for further proceedings.
PROCEDURAL HISTORY
Appellant was charged with one count of violating Health and Safety Code section
11352, subdivision (a), sale of a controlled substance, to wit, cocaine. She pled not
guilty. Before trial, the court granted her motion for discovery pursuant to Pitchess v.
Superior Court (1974) 11 Cal. 3d 531. On the day set for trial, the court denied her
motion to remove her counsel pursuant to People v. Marsden (1970) 2 Cal. 3d 118. The
case proceeded to a jury trial. Appellant elected not to testify and the court denied her
motion to dismiss pursuant to Penal Code section 1118.1. The jury found her guilty as
charged. The court sentenced her to time served (42 days in custody) and placed her on
three years of formal probation. It imposed the following fines and fees: a $40 court
operations fee (Pen. Code, § 1465.8, subd. (a)(1)); a $30 criminal conviction fee (Gov.
Code, § 70373); a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)); a
$20 DNA assessment (Gov. Code, § 76104.7); a $50 laboratory analysis fee “plus penalty
assessments” (Health & Saf. Code, § 11372.5, subd. (a)); a $300 restitution fine (Pen.
Code, § 1202.4, subd. (b)); a suspended $300 probation revocation restitution fine (Pen.
Code, § 1202.44); $2,386 in attorney fees, subject to appellant meeting with a financial
evaluator (Pen. Code, § 987.8); and the actual cost of probation services (Pen. Code,
§ 1203.1b). Appellant timely appealed.
STATEMENT OF FACTS
Los Angeles Police Officer Edgar Ramos was working undercover on June 3,
2014, at approximately 8:00 p.m. in the area of 47th Street and Vermont Avenue in Los
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Angeles. He spotted a woman by the name of Ms. Allen with two companions and asked
them if anyone had a “20,” which was street vernacular for $20 worth of narcotics. A
woman in Ms. Allen’s group responded there was no one around at that time, and the
group crossed the street. Officer Ramos approached Ms. Allen again five minutes later,
and she indicated no one was present yet. Soon after, Ms. Allen yelled to an unidentified
Black female walking down 47th Street and told Officer Ramos she might have it.
Officer Ramos approached the female, but she refused to speak to him. The female used
Ms. Allen’s phone to make a call and walked away. Officer Ramos then spotted
appellant walking in their direction, and Ms. Allen pointed to her and said “she’s got it.”
Ms. Allen asked Officer Ramos for money, and he gave her a prerecorded $20 bill.
Ms. Allen walked toward appellant, and after they exchanged some words, Ms. Allen
handed appellant the $20 bill in exchange for something. Ms. Allen returned to Officer
Ramos and handed him two off-white solids wrapped in a clear plastic bindle. In return,
he handed her a prerecorded $10 bill as payment. Officer Ramos walked away and
signaled to other officers the transaction had taken place. Officers then arrested and
searched appellant and Ms. Allen, recovering, among other items, the prerecorded $10
bill and a glass pipe from Ms. Allen and the prerecorded $20 bill from appellant.
Analysis of one of the off-white solids in the plastic bindle revealed it was comprised of
0.31 grams of cocaine in the form of cocaine base.
DISCUSSION
We appointed counsel to represent appellant on this appeal. After review of the
record, appellant’s court-appointed counsel filed an opening brief asking this court to
review the record independently pursuant to Wende, supra, 25 Cal.3d at page 441. On
July 7, 2015, we advised appellant she had 30 days to submit any contentions or issues
she wished us to consider. Appellant did not file a supplemental brief.
We have examined the entire record. We are satisfied no arguable issues exist that
would compel reversal of her conviction. (Smith v. Robbins (2000) 528 U.S. 259, 279-
284; Wende, supra, 25 Cal.3d at p. 441; see also People v. Kelly (2006) 40 Cal. 4th 106,
123-124.)
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However, we requested supplemental briefing on the following two issues related
to the fines and fees imposed by the trial court: (1) Was it error for the trial court not to
impose the penalty assessments on the $150 drug program fee pursuant to Health and
Safety Code section 11372.7, subdivision (a)? (2) Should the sentencing minute order be
amended to specifically list the amounts and statutory authority for the penalty
assessments attached to the $50 crime laboratory drug analysis fee pursuant to Health and
Safety Code section 11372.5, subdivision (a) and the $150 drug program fee pursuant to
Health and Safety Code section 11372.7, subdivision (a)? The parties filed simultaneous
supplemental briefs and respondent filed a supplemental reply brief. After reviewing the
parties’ submissions, we find remand is required.
1. Penalty Assessments in Addition to Drug Program Fee (Health & Saf. Code,
§ 11372.7, Subd. (a))
The parties agree the trial court erred in not assessing the following seven
additional mandatory penalty assessments totaling $465 when it imposed the $150 drug
program fee pursuant to Health and Safety Code section 11372.7, subdivision (a): a $150
state penalty (Pen. Code, § 1464, subd. (a)(1)); a $105 county penalty (Gov. Code,
§ 76000, subd. (a)(1)); a $30 state surcharge (Pen. Code, § 1465.7, subd. (a)); a $75 state
court construction penalty (Gov. Code, § 70372, subd. (a)(1)); a $30 emergency medical
services penalty (Gov. Code, § 76000.5, subd. (a)(1)); a $15 DNA penalty (Gov. Code,
§ 76104.6, subd. (a)(1)); and a $60 state-only DNA penalty (Gov. Code, § 76104.7, subd.
(a)). (See People v. Sharret (2011) 191 Cal. App. 4th 859, 864 (Sharret).)
Normally a Court of Appeal may correct a judgment on appeal to impose these
mandatory penalty assessments. (People v. Castellanos (2009) 175 Cal. App. 4th 1524,
1530 (Castellanos) [“Because the seven additional assessments, surcharge, and penalties
are mandatory, their omission may be corrected for the first time on appeal.”].) However,
Health and Safety Code section 11372.7 contains an ability to pay provision. (Health &
Saf. Code, § 11372.7, subd. (b) [“The court shall determine whether or not the person
who is convicted of a violation of this chapter has the ability to pay a drug program fee.
If the court determines that the person has the ability to pay, the court may set the amount
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to be paid and order the person to pay that sum to the county in a manner that the court
believes is reasonable and compatible with the person’s financial ability. In its
determination of whether a person has the ability to pay, the court shall take into account
the amount of any fine imposed upon that person and any amount that person has been
ordered to pay in restitution. If the court determines that the person does not have the
ability to pay a drug program fee, the person shall not be required to pay a drug program
fee.”]; see People v. Corrales (2013) 213 Cal. App. 4th 696, 702 (Corrales); Sharret,
supra, 191 Cal.App.4th at p. 864.) The record does not reflect the court expressly
considered appellant’s ability to pay, but we may presume it did when it imposed the
$150 assessment. (See Corrales, supra, at p. 702 [“We presume the trial court
determined defendant was able to pay a $150 fee.”]; Castellanos, supra, at p. 1531
[“[I]mplicit in the imposition of the $10 . . . fine is the trial court’s finding defendant had
the ability to pay.”].)
Nonetheless, the additional mandatory penalty assessments increase the fee by
$465, and the court must take that into account in assessing appellant’s ability to pay.
(See Corrales, supra, 213 Cal.App.4th at p. 702; Castellanos, supra, 175 Cal.App.4th at
p. 1532; People v. Valenzuela (2009) 172 Cal. App. 4th 1246, 1250.) Because the court
did not impose these additional mandatory assessments when it imposed the fee pursuant
to Health and Safety Code section 11372.7, subdivision (a), we presume the court did not
consider them in assessing appellant’s ability to pay. Thus, the parties agree—as do
we—that remand is necessary for the court to make a new determination of appellant’s
ability to pay the fee imposed by Health and Safety Code section 11372.7, subdivision (b)
in light of her total financial obligations. (See People v. Johnson (2015) 234 Cal. App. 4th
1432, 1459 (Johnson).) Appellant has the burden on remand to demonstrate her inability
to pay. (Valenzuela, supra, at p. 1250.)
2. Sentencing Minute Order
Several courts have approved of the practice of trial courts orally imposing the
penalty assessments on the fees pursuant to Health and Safety Code sections 11372.5 and
11372.7 by simply stating those fees are imposed “plus penalty assessments.” (See
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People v. Hamed (2013) 221 Cal. App. 4th 928, 939-940; People v. Voit (2011) 200
Cal. App. 4th 1353, 1373; Sharret, supra, 191 Cal.App.4th at p. 864.) But the court must
ensure the sentencing minute order and abstract of judgment set forth the specific
amounts and statutory authority for each penalty and surcharge. (Johnson, supra, 234
Cal.App.4th at p. 1459; Hamed, supra, at p. 940; Sharret, supra, at p. 864.)
As we explained above, the court imposed the drug program fee pursuant to
Health and Safety Code section 11372.7 without the mandatory additional assessments.
At the sentencing hearing, the court also orally imposed the crime laboratory drug
analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a), “plus
penalty assessments.”1 While that was permissible, the sentencing minute order failed to
list the specific penalty amounts and their statutory bases. Following the proceedings on
remand regarding appellant’s ability to pay the Health and Safety Code section 11372.7
fee, the court must ensure the sentencing minute order sets forth the amount and statutory
authority for each penalty assessment attached to the fees imposed by Health and Safety
Code sections 11372.5 and 11372.7.2 (See Sharret, supra, 191 Cal.App.4th at pp. 863-
864.)
DISPOSITION
The imposition of the drug program fee pursuant to Health and Safety Code
section 11372.7, subdivision (a) is reversed. Upon issuance of the remittur, the trial court
is directed to determine appellant’s ability to pay the drug program fee pursuant to Health
and Safety Code section 11372.7, subdivision (a) in light of the additional mandatory
penalty assessments and appellant’s other financial obligations. If appellant has the
ability to pay, the drug program fee is to be reinstated with the additional penalty
1 The same penalty assessments apply to Health and Safety Code sections 11372.5
and 11372.7. (Sharret, supra, 191 Cal.App.4th at pp. 863-864.)
2 The sentencing minute order reflects the court separately imposed a $20 state-only
DNA penalty (Gov. Code, § 76104.7, subd. (a)), which was part of the penalties attached
to the $50 crime laboratory drug analysis fee pursuant to Health and Safety Code section
11372.5. (See Sharret, supra, 191 Cal.App.4th at p. 864.)
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assessments. The superior court is directed to ensure the sentencing minute order
properly lists the amounts and statutory authority for each penalty assessment. In all
other respects, the judgment is affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
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