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The People v. Thurman Hodge

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Butte


April 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THURMAN HODGE, JR., DEFENDANT AND APPELLANT.

Super. Ct. No. CM024608

The opinion of the court was delivered by: Nicholson ,j.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant Thurman Hodge, Jr., guilty of possession of cocaine base for sale (count 1) and possession of cocaine for sale (count 2), and found he personally used a firearm during the commission of the crimes. (Health & Saf. Code, §§ 11351.5, 11351; Pen. Code, § 12022, subd. (c).) After several violations of probation, the trial court sentenced defendant to the mid-term of four years on count 1, a concurrent three years on count two, and a consecutive four years for the firearm enhancement, for an aggregate term of eight years in state prison.

The facts underlying defendant's crimes are not relevant to the disposition of this appeal. We strike an unauthorized assessment, order a correction to the abstract of judgment, and otherwise affirm.

I Defendant contends, and the People concede, that the $30 court facilities assessment imposed at sentencing is unauthorized and must be stricken because defendant's convictions occurred prior to Government Code section 70373's effective date.

Subdivision (a)(1) of Government Code section 70373 (section 70373) provides: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony." Section 70373, subdivision (a)(1) became effective on January 1, 2009, with the enactment of Senate Bill No. 1407 (2008 Reg. Sess.).

Defendant committed the subject crimes in March 2006. He was convicted upon a jury verdict in September 2007, prior to the effective date of the statute. As part of the sentenced imposed on February 3, 2010, after revocation of defendant's probation, the court imposed the $30 court facilities assessment. This assessment is unauthorized. The court facilities assessment imposed by section 70373 does not apply to cases in which the defendant's conviction, by plea or jury verdict, was rendered before the January 1, 2009, effective date of the statute. (People v. Davis (2010) 185 Cal.App.4th 998, 1000; see also People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.) Accordingly, the $30 section 70373 assessment must be stricken.

II Defendant also contends, and the People concede, the abstract of judgment is partially erroneous. The trial court sentenced defendant to a concurrent mid-term of three years on count 2 for violation of Health and Safety Code section 11351, possession for sale of cocaine. The abstract of judgment is erroneous because it indicates defendant was sentenced to four years for that conviction. We have the inherent power to order correction of clerical errors in abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)

DISPOSITION

The judgment is modified to strike the $30 assessment imposed pursuant to section 70373. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment omitting the $30 assessment and specifying defendant was sentenced to the mid-term of three years on count 2 (possession for sale of cocaine; Health and Safety Code section 11351) and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: BLEASE , Acting P.J. HOCH ,J.

20110427

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