People v. Vargas-Barragan CA3 ( 2013 )

Filed 12/30/13 P. v. Vargas-Barragan CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE,
Plaintiff and Respondent, C072255
v. (Super. Ct. No. S11CRF0190)
FLORENTINO VARGAS-BARRAGAN,
Defendant and Appellant.
Defendant Florentino Vargas-Barragan pled no contest to possession of cocaine
for sale (Health & Saf. Code, § 11351) and admitted two prior drug convictions (Health
& Saf. Code, § 11370.2, subd. (b)) and a prior serious felony conviction (Pen. Code,1
§§ 667, subds. (b)-(i), 1170.12). In exchange, three related counts were dismissed.
Defendant was sentenced to state prison for 10 years, consisting of twice the low term of
two years plus six years for the prior drug convictions. He was ordered to pay, among
other things, a $195 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a))
1 Undesignated statutory references are to the Penal Code.
1
and a $585 drug program fee (Health & Saf. Code, § 11372.7). The trial court expressly
found defendant has the ability to pay the $460 cost of the probation report. (§ 1203.1b.)
Defendant contends, and the People concede, the laboratory analysis fee and drug
program fee must be modified to reflect the DNA penalty assessments in effect at the
time of his offense. Defendant next contends the abstract of judgment must be amended
to clarify that no theft fine (§ 1202.5) was imposed in this case. Finally, defendant
contends the trial court’s finding he had the ability to pay for the costs of the probation
report is not supported by substantial evidence. We conclude that: (1) the laboratory
analysis and drug program fees must be reduced to reflect the DNA penalty assessments
in effect when defendant committed his crime; (2) the abstract of judgment can be
amended to clarify that no theft fine was imposed; and (3) defendant has forfeited his last
contention by failing to object to the trial court’s imposition of the probation report fee.
As amended, the judgment is affirmed.
FACTS
The facts of defendant’s offense are not at issue and need not be set forth in this
opinion.
DISCUSSION
I
DNA Penalty Assessments
Defendant contends, and the People concede, the $195 laboratory analysis fee and
$585 drug program fee must be reduced to reflect the penalty assessments in effect at the
time of the offense. We agree.
The trial court orally pronounced both fees but did not itemize their components.
Instead, the itemization appears in a “Prison Fine Breakdown” appended to the abstract of
judgment. The itemization shows the $150 base drug program fee is enhanced by two
separate “State DNA” enhancements of $30, pursuant to Government Code section
76104.7. Similarly, the $50 base laboratory analysis fee is enhanced by two separate
2
“State DNA” enhancements of $10, pursuant to Government Code section 76104.7,
subdivision (a).
The state DNA collection fee is a penalty assessment. (People v. Batman (2008)
159 Cal. App. 4th 587, 590-592.) Penalty assessments cannot be imposed in violation of
ex post facto laws. (People v. Voit (2011) 200 Cal. App. 4th 1353, 1374; Batman, supra,
at p. 590.) Thus, the amount of a penalty assessment is determined as of the date of the
offense.
Government Code section 76104.7, subdivision (a), was enacted in 2006. (Stats.
2006, ch. 69, § 18.) It was amended effective June 10, 2010, to increase the amount of
the fee to $3 for every $10, or part of $10, of the base fee. (Stats. 2009-2010, 8th Ex.
Sess., ch. 3X, § 1.) The statute was amended again effective June 27, 2012, to increase
the amount of the fee to $4 for every $10, or part of $10, of the base fee. (Stats. 2012,
ch. 32, § 25.)
Defendant’s crime was committed in August 2011. Thus, the trial court should
have calculated the DNA fees pursuant to the June 10, 2010, version of the statute.
Moreover, because the statute imposes a single penalty assessment upon the drug
program fee and a single penalty assessment upon the laboratory analysis fee, the “Prison
Fine Breakdown” should not have listed more than one “State DNA” assessment upon
each fee.
Thus, we modify the laboratory analysis fee to include a single DNA penalty
assessment in the amount of $45. We modify the drug program fee to include a single
DNA penalty assessment in the amount of $15. This yields an aggregate drug program
fee of $570 and an aggregate laboratory analysis fee of $190.
II
Correction of Abstract of Judgment
The parties agree the trial court did not impose a theft fine (§ 1202.5) in this case.
Defendant argues part 9c of the abstract of judgment mistakenly reflects a theft fine in the
3
amount of $780. The People respond that the $780 figure is not a theft fine; rather, it is
the sum of the $585 drug program fee and $195 laboratory analysis fee reflected on the
following line of the document.
Because we have modified the amounts of the laboratory analysis fee and drug
program fee, the trial court is directed to prepare an amended abstract of judgment. We
suggest the trial court can avoid any confusion by striking the inapplicable words “per PC
1202.5” following the listing of the total fine amount.
III
Ability to Pay for Probation Report
Defendant contends the order to pay $460 for the costs of the probation report
must be reversed because the record contains no evidence he has the ability to pay that
amount or that the order reflects the reasonable cost of the report.
The People respond that defendant forfeited the contention by failing to raise it in
the trial court. We agree.
Defendant claims he is entitled to challenge the sufficiency of evidence of ability
to pay for the first time on appeal. (Citing People v. Pacheco (2010) 187 Cal. App. 4th
1392, 1400.) However, by failing to object to the trial court’s imposition of the probation
report fee, defendant has forfeited the ability to challenge the sufficiency of the evidence
to support this fee on appeal. (People v. McCullough (2013) 56 Cal. 4th 589, 591 [a
defendant who fails to contest the booking fee when the trial court imposes it forfeits the
right to challenge the sufficiency of the evidence to support the fee], disapproving of
People v. Pacheco, supra, 187 Cal. App. 4th 1392 [holding a defendant’s failure to object
to imposition of a booking fee does not forfeit an appellate challenge based on
insufficiency of the evidence].)
DISPOSITION
The judgment is modified to impose a $570 drug program fee and a $190
laboratory analysis fee. As so modified, the judgment is affirmed. The trial court is
4
directed to prepare an amended abstract of judgment and to forward a certified copy to
the Department of Corrections and Rehabilitation.
HOCH , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
5