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The People v. Philip John Owens

December 2, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PHILIP JOHN OWENS, DEFENDANT AND APPELLANT.



The opinion of the court was delivered by: Scotland , Acting P. J.

P. v. Owens 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Tehama)

Super. Ct. No. NCR73164

After defendant Philip John Owens admitted violating his probation, the trial court imposed the previously suspended state prison sentence and ordered him to pay various fines and fees. On appeal, defendant argues that the $150 general fine imposed without a statutory basis was not authorized under either Health and Safety Code section 11377,*fn1 subdivision (c) or Penal Code section 672.

We reject defendant's contention and conclude the fine is authorized under Penal Code section 672. As a separate matter, pursuant to our miscellaneous order No. 2010-002, we conclude that defendant is entitled to additional presentence conduct credits.

BACKGROUND*fn2

In April 2008, defendant entered a plea of guilty to two felony counts of possession of methamphetamine (§ 11377, subd. (a)), charged as counts V and VI in an amended information, on the condition that he could withdraw his plea if probation was not granted at sentencing. All other charges were dismissed.

In May 2008, the trial court sentenced defendant, in accordance with his plea, to two years eight months in state prison (the midterm on count V and one-third the midterm on count VI), suspended execution of sentence, and imposed three years' probation with various terms and conditions. The order granting probation included various fees and fines as recommended by probation.

In 2009, defendant admitted a violation of his probation after a petition was filed alleging that he failed to keep in contact with his probation officer. The trial court sustained the petition and referred the matter to the probation department for a supplemental report.

At sentencing, the trial court denied further probation and imposed sentence as follows: "The Court at this time commits the Defendant to State Prison for two years, eight months, with credit for 319 days: 213 actual, 106 conduct credits. [¶] The fines and fees, including their breakdown, are incorporated into the judgment as recommended [in the probation report]." Included within the supplemental probation report is a document entitled "Recommended Financial Terms" and it contains a breakdown of the recommended fines and fees.*fn3

The first portion of the document, entitled "Recommended Financial Terms," contains the $150 fine at issue, along with associated surcharges, fees and penalties. However, unlike the other fines and fees, no statutory authorization is provided for the $150 fine. Without alteration, this portion reads as follows:

"Count V & VI: 11377(a) H&S, a felony. ($150 fine, $30 Court Surcharge [per §1465.76], $75 State Court Facilities Construction Fund [per §70372(a) GC], $150 State Penalty Assessment [per §1464 PC], $105 County Penalty Assessment [per §76000 GC]) $15.00 DNA ID [per 76104.6 GC], ...


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