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The People v. Tyrone Sharret

January 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TYRONE SHARRET, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. (Los Angeles County Super. Ct. No. BA357500)

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed as modified.

I. INTRODUCTION

Defendant, Tyrone Sharret, appeals from his conviction for possession for sale (count 1) and sale (count 2) of heroin. (Health & Saf. Code, §§ 11351, 11352, subd. (a).) Defendant admitted the truth of the allegations of three prior separate prison terms (Pen. Code, § 667.5, subd. (b)) and a prior drug conviction. (Health & Saf. Code, § 11370.2, subd. (a).) Defendant gave heroin to another person. That person in turn handed the heroin to another individual. That individual handed the heroin to an undercover police officer. Thereafter, defendant was arrested, searched and found to be in possession of even more heroin and $107 in cash.

Defendant was sentenced to state prison for six years--three years on count 2, plus a three-year enhancement under Health and Safety Code, section 11370.2, subdivision (a). Pursuant to Penal Code section 654, subdivision (a) (section 654), the trial court orally imposed but stayed a two-year sentence on count 1. As to count 1, the trial court also orally imposed a $30 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)), which were ordered to run "consecutive to count 2." The trial court stuck the two Penal Code section 667.5, subdivision (b) one-year prior prison term enhancements that remained available for sentencing. (Pen. Code, § 1385, subd. (a).)

As to count 2, the trial court orally ordered defendant to pay: a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)); a $200 parole revocation restitution fine (Pen. Code, § 1202.45); a $30 court security fee (Pen. Code, § 1465.8, subd. (a)(1)); a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)); a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) (hereafter section 11372.5) "plus penalty assessment"; and a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a) (hereafter § 11372.7) "plus penalty assessment." The abstract of judgment omits any reference to the section 11372.7 drug program fee which was orally imposed. But the abstract of judgment reflects imposition of the section 11372.5 criminal laboratory analysis fee and the $50 Penal Code section 1464, subdivision (b)(4) and $35 Government Code section 76000, subdivision (a) penalty assessments. Defendant received credit for 264 days in actual custody and 264 days of conduct credit for a total presentence custody credit of 528 days.

We appointed counsel to represent defendant on appeal. After examination of the record, appointed appellate counsel has filed a brief in which no issues are raised. Instead, appointed appellate counsel asked us to independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442 (see Smith v. Robbins (2000) 528 U.S. 259, 264), including the reporter's transcript of the in camera hearing pursuant to People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232. We have read the sealed peace officer records examined by the trial court in camera. No error occurred in connection with defendant's pretrial peace officer personnel records disclosure motion.

On October 8, 2010, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. No response has been received.

We asked the parties to brief the questions whether: the trial court should have imposed a criminal laboratory analysis fee (§ 11372.5) or a drug program fee (§ 11372.7) together with penalties and a surcharge as to count 1; any criminal laboratory analysis fee or drug program fee imposed as to count 1 should then have been stayed under section 654; defendant's presentence custody credit award was excessive; and the abstract of judgment must be corrected to reflect the sentence as orally imposed and as modified on appeal including the penalties and surcharge applicable to the criminal laboratory analysis and drug program fees.

II. DISCUSSION

A. An Additional Criminal Laboratory Analysis Fee, Penalty And Surcharge Should Have Been Imposed

Following our request for further briefing, the Attorney General argues an additional criminal laboratory analysis fee, penalties and surcharge should have been imposed. We agree. The trial court orally imposed the section 11372.5 $50 criminal laboratory analysis fee only as to count 2. Both counts 1 and 2 are subject to the criminal laboratory analysis fee. (§ 11372.5.)

Additionally, the criminal laboratory analysis fees imposed as to counts 1 and 2 are subject to the following: a $50 state penalty under Penal Code section 1464, subdivision (a)(1); a $35 county penalty pursuant to Government Code section 76000, subdivision (a)(1); a $10 Penal Code section 1465.7, subdivision (a) state surcharge; a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty; a $10 Government Code section 76000.5, subdivision (a)(1) emergency medical services penalty; a $5 Government Code section 76104.6, subdivision (a)(1) deoxyribonucleic acid penalty; and a $5 Government Code section 76104.7, subdivision ...


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