The People v. Saechao CA3 ( 2013 )

Filed 9/11/13 P. v. Saechao 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent, C073516
v. (Super. Ct. No. 12F04670)
CHIA L. SAECHAO,
Defendant and Appellant.
Appointed counsel for defendant Chia L. Saechao asked this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will modify the
judgment to include a mandatory fee and applicable penalty assessments and surcharges.
Finding no arguable error that would result in a disposition more favorable to defendant,
we will affirm the judgment as modified.
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I
Because this matter was resolved by plea, the facts are taken from the stated
factual basis.
Defendant possessed .29 grams of methamphetamine, a useable amount. In
exchange for a stipulated sentence of 32 months in prison, he pleaded no contest to
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted a
prior strike conviction.
Defendant asked the trial court to dismiss his prior strike conviction pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. After considering the request
and the factors set forth in People v. Williams (1998) 17 Cal.4th 148, the trial court
denied the request. The trial court sentenced defendant to the negotiated term of 32
months in prison (16 months doubled based on the prior strike conviction), awarded him
520 days of presentence credit, and imposed $240 restitution fund fines (Pen. Code,
§§ 1202.4 & 1202.45), a $40 court security fee and a $30 court facility fee. All other
non-mandatory fees and fines were waived.
The abstract of judgment and minute order, however, reflect the imposition of an
additional mandatory $50 criminal laboratory analysis fee under Health and Safety Code
section 11372.5, subdivision (a).
Defendant did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.
Based on our review of the record, we have identified an error in the
pronouncement of judgment. The minute order and abstract of judgment reflect the
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imposition of a mandatory criminal laboratory fee (Health & Saf. Code, § 11372.5, subd.
(a)), but that fee was not included in the oral pronouncement of judgment.
The abstract of judgment must reflect the oral pronouncement of judgment.
(People v. Mitchell (2001) 26 Cal.4th 181, 185–186.) But where the fee is mandatory, as
it is here, the omission in the oral pronouncement may be corrected at any time because
the failure to impose a mandatory fine or fee constitutes an unlawful sentence. (See
People v. Smith (2001) 24 Cal.4th 849, 853.) We will modify the judgment to include the
mandatory fee.
Our review also discloses that the judgment must be modified to include
applicable penalty assessments and surcharges. We will modify the judgment to include
the applicable penalty assessments under Penal Code section 1464 and Government Code
section 76000, a court facilities surcharge under Government Code section 70372, and
the state surcharge under Penal Code section 1465.7. (People v. Taylor (2004) 118
Cal.App.4th 454, 456.)
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 to provide for a $50 criminal laboratory fee (Health &
Saf. Code, § 11372.5, subd. (a)), a state penalty assessment of $50 (Pen. Code, § 1464), a
county penalty assessment of $35 (Gov. Code, § 76000), a $25 court facilities surcharge
(Gov. Code, § 70372), and a 20 percent state surcharge of $10 (Pen. Code, § 1465.7).
The minute order and abstract of judgment already reflect the imposition of the fee, but
the trial court is directed to amend the minute order and abstract of judgment to reflect
imposition of the penalty assessments and surcharges, and to forward a certified copy of
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the amended abstract of judgment to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
MAURO , J.
We concur:
HULL , Acting P. J.
MURRAY , J.
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