People v. Thompson CA6 ( 2015 )

Filed 4/21/15 P. v. Thompson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040854
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F24497)
v.
AUNDRE JAHMAL THOMPSON,
Defendant and Appellant.
In a negotiated disposition, defendant Aundre Jahmal Thompson pleaded no
contest to one count of selling or transporting cocaine base (Health & Saf. Code, § 11352,
subd. (a)).1 The trial court dismissed a prior serious felony strike allegation and
sentenced him to four years in state prison. Defendant’s timely appeal challenges the
trial court’s imposition of a “$205 AIDS fine” and a “$205 lab fee.” We reverse.
I. Background
The facts of defendant’s September 20, 2012 offenses are not relevant to the issues
he raises on appeal, so we need not recount them.
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Further statutory references are to the Health and Safety Code unless otherwise
noted.
The trial court imposed various fines and fees at sentencing, including a “$205 lab
fee” and a “$205 AIDS fine.” The court did not state the statutory basis for the fines and
fees. Nor did it mention penalty assessments. Defendant raised no objections.
There was no probation report. The clerk’s minutes state, “$205 Lab fees and
$205 Aids fine to be paid through CDCR.” The abstract of judgment states, “Defendant
to pay lab fee of $205.00 and AIDS fine of $205.00 to be paid through CDCR.”
II. Discussion
A. AIDS Fine
Defendant contends that the AIDS fine was unauthorized and that he did not
forfeit the argument by failing to object below. The Attorney General concedes these
points. We accept the concession.
Penal Code section 1463.23 provides that “fifty dollars ($50) of each fine imposed
pursuant to Section 4338 of the Business and Professions Code; subdivision (c) of
Section 11350, subdivision (c) of Section 11377, or subdivision (d) of Section 11550 of
the Health and Safety Code; or subdivision (b) of Section 264, subdivision (m) of Section
286, subdivision (m) of Section 288a, or Section 647.1 of this code, shall be deposited in
a special account in the county treasury which shall be used exclusively to pay for the
reasonable costs of establishing and providing for the county, or any city within the
county, an AIDS (acquired immune deficiency syndrome) education program under the
direction of the county health department . . . .” Defendant was not convicted under any
of the statutes listed in Penal Code section 1463.23. He was convicted of violating
section 11352, which is not listed.
“[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed
under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal. 4th 331,
354 (Scott).) That is the situation here. The AIDS fine (with attendant unspecified
penalty assessments) was unauthorized.
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Defendant’s failure to object below does not preclude him from challenging the
AIDS fine on appeal. “[T]he ‘unauthorized sentence’ concept constitutes a narrow
exception to the general requirement that only those claims properly raised and preserved
by the parties are reviewable on appeal. [Citations.]” (Scott, supra, 9 Cal.4th at p. 354.)
The AIDS fine must be stricken. (People v. Ogg (2013) 219 Cal. App. 4th 173, 186.)
B. Lab Fee
Defendant claims the trial court erred by imposing the “$205 lab fee” without
stating the statutory basis for the fee or specifying the amounts and statutory bases of its
attendant penalty assessments. The Attorney General responds that defendant forfeited
the claim. She adds, however, that she “does not object to modification of the judgment
to set forth the statutory basis and mandatory amount of the fee and the amount and
statutory authority for each of the assessments appended to the fine to reach the correct
amount of $205.” She does the math for us, listing $155 in mandatory penalty
assessments that, when added to the $50 criminal laboratory analysis fee that section
11372.5 imposes, total $205. In reply, defendant maintains that he did not forfeit the
claim, but even if he did, this court can correct the unauthorized sentence. Defendant
does not challenge the Attorney General’s calculations.
Trial courts are required to identify the statutory basis for all fees, fines, and
penalties imposed. (People v. High (2004) 119 Cal. App. 4th 1192, 1200 (High).)
“Although we recognize that a detailed recitation of all the fees, fines and penalties on the
record may be tedious, California law does not authorize shortcuts.” (Ibid.) “[E]ven
where the [CDCR] has no statutory obligation to collect a particular fee, such as the
laboratory fee imposed under Health and Safety Code section 11372.5, the fee must be
included in the abstract of judgment.” (Ibid.)
Section 11372.5 states in pertinent part that “[e]very person who is convicted of a
violation of Section . . . 11352 . . . of this code . . . shall pay a criminal laboratory analysis
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fee in the amount of fifty dollars ($50) for each separate offense.” (§ 11372.5, subd. (a).)
Here, both parties assume that the trial court imposed the “$205 lab fee” pursuant to
section 11372.5, subdivision (a). Defendant was convicted of a single violation of
section 11352. Thus, the correct amount of the lab fee is $50. (§ 11372.5, subd. (a).)
The $50 lab fee is subject to seven mandatory penalty assessments. (People v.
Sharret (2011) 191 Cal. App. 4th 859, 862-864.) At the time of defendant’s offense, those
assessments were (1) a 100 percent ($50) state penalty assessment (Pen. Code, § 1464,
subd. (a)(1)); (2) a 20 percent ($10) state surcharge (Pen. Code, § 1465.7); (3) a 50
percent ($25) state court construction penalty (Gov. Code, § 70372); (4) a 70 percent
($35) additional penalty (Gov. Code, § 76000, subd. (a)(1)); (5) a 20 percent ($10)
emergency medical services penalty (former Gov. Code, § 76000.5); (6) a 10 percent ($5)
penalty for implementation of the DNA Fingerprint, Unsolved Crime and Innocence
Protection Act (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a 40 percent ($20) state-only
DNA penalty (Gov. Code, § 76104.7). (See People v. Hamed (2013) 221 Cal. App. 4th
928, 940-941.) These penalty assessments total $155. The lab fee plus the penalty
assessments total $205. Thus, the trial court imposed the proper total amount. The
abstract must be corrected, however, to reflect the statutory basis and amount of the lab
fee and the statutory bases and amounts of the penalty assessments. (High, supra, 119
Cal.App.4th at p. 1200.)
III. Disposition
The judgment is reversed. On remand, the trial court shall (1) strike the AIDS fine
and (2) amend the abstract of judgment to reflect a $50 criminal laboratory analysis fee
(§ 11372.5, subd. (a)); a $50 state penalty assessment (Pen. Code, § 1464, subd. (a)(1)); a
$10 state surcharge (Pen. Code, § 1465.7); a $25 state court construction penalty (Gov.
Code, § 70372); a $35 additional penalty (Gov. Code, § 76000, subd. (a)(1)); a $10
emergency medical services penalty (former Gov. Code, § 76000.5, subd. (a)(1)); a $5
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penalty for the implementation of the DNA Fingerprint, Unsolved Crime and Innocence
Protection Act (Gov. Code, § 76104.6, subd. (a)(1)); and a $20 forensic laboratories
penalty (Gov. Code, § 76104.7). The trial court shall forward a certified copy of the
amended abstract to the Department of Corrections and Rehabilitation.
___________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P. J.
_____________________________
Márquez, J.
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