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The People v. Crissy Lee Wright

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


May 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CRISSY LEE WRIGHT, DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 10F37, 10F4732)

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

P. v. Wright

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On February 6, 2010, in case No. 10F37, an information was filed charging defendant Crissy Lee Wright with the following offenses: possession for sale of a controlled substance (methamphetamine) (count 1; Health & Saf. Code, § 11378); possession for sale of a controlled substance (MDMA) (count 2; Health & Saf. Code, § 11378); possession for sale of a controlled substance (cocaine) (count 3; Health & Saf. Code, § 11351); possession for sale of a controlled substance (hydrocodone) (count 4; Health & Saf. Code, § 11351); possession of marijuana for sale (count 5; Health & Saf. Code, § 11359); maintaining a place for selling or using controlled substances (methamphetamine, MDMA, cocaine, hydrocodone) (count 6; Health & Saf. Code, § 11366); and possession of an injecting or smoking device, a misdemeanor (count 7; Health & Saf. Code, § 11364). As to counts 1 and 2, it was alleged that defendant had three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c). As to counts 3 and 4, it was alleged that defendant had three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). As to counts 1 through 6, it was alleged that defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) As to count 1, it was also alleged that defendant possessed for sale and sold a substance that contained 28.5 grams or more of methamphetamine or 57 grams or more of a substance that contained methamphetamine. (Pen. Code, § 1203.073, subd. (b)(2).)

On July 14, 2010, in case No. 10F4732, a complaint deemed an information was filed charging defendant with the following offenses: possession for sale of a controlled substance (methamphetamine) (count 1; Health & Saf. Code, § 11378) and possession of an injecting or smoking device, a misdemeanor (count 2; Health & Saf. Code, § 11364). As to count 1, it was alleged that defendant had three prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (c)), had served two prior prison terms (Pen. Code, § 667.5, subd. (b)), and had committed the offenses while on bail or own-recognizance release in case No. 10F37 (Pen. Code, § 12022.1).

On September 10, 2010, defendant pled guilty in case No. 10F37 to counts 1, 3, and 5, and admitted one enhancement under Health and Safety Code section 11370.2, subdivision (c) as to count 1 and one enhancement under Health and Safety Code section 11370.2, subdivision (a) as to count 3; in case No. 10F4732, defendant pled guilty to count 1. In return, it was agreed that the remainder of the charges and allegations in the two cases would be dismissed and defendant would receive a stipulated prison term of 12 years.

The factual basis for defendant's plea, as derived from the police reports, was that defendant possessed methamphetamine, cocaine, and marijuana for sale on December 31, 2009 (case No. 10F37), possessed methamphetamine for sale on June 29, 2010 (case No. 10F4732), had previously been convicted of transportation of a controlled substance on June 29, 2004, and of possession for sale of a controlled substance on February 28, 2007.

State Prison Sentences

On October 6, 2010, the trial court sentenced defendant to the stipulated 12-year state prison term, calculated as follows:

Case No. 10F37

Count 3: four years, plus three years consecutive for the enhancement under Health and Safety Code section 11370.2, subdivision (a).

Count 1: eight months consecutive, plus three years for the enhancement under Health and Safety Code section 11370.2, subdivision (c).

Count 5: eight months consecutive.

Case No. 10F4732

Count 1: eight months consecutive.

The court awarded defendant 312 days' presentence custody credit (156 days' actual credit and 156 days' conduct credit).

Fees, Fines & Assessments

Case No. 10F37

The court ordered defendant to pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a suspended $200 restitution fine pending completion of parole (Pen. Code, § 1202.45). The court further ordered defendant to pay a $90 court security fee ($30 per count) pursuant to Penal Code section 1465.8, subdivision (a)(1) and a $90 criminal conviction assessment ($30 per count) pursuant to Government Code section 70373; a single criminal laboratory analysis fee of $190 ($50 pursuant to Health & Saf. Code, § 11372.5; $50 pursuant to Pen. Code, § 1464; $10 pursuant to Pen. Code, § 1465.7; $5 pursuant to Gov. Code, § 76104.6; $15 pursuant to Gov. Code, § 76104.7; $25 pursuant to Gov. Code, § 70372; and $35 pursuant to Gov. Code, § 76000, subd. (a)(1); and an additional $760 (a base fine of $200 on count 3, the Health & Safety Code, § 11351 count, plus $200 pursuant to Pen. Code, § 1464, subd. (a); $20 pursuant to Gov. Code, § 76104.6; $60 pursuant to Gov. Code, § 76104.7; $100 pursuant to Gov. Code, § 70372; $140 pursuant to Gov. Code, § 76000, subd. (a)(1); and $40 pursuant to Pen. Code, § 1465.7, subd. (a)).

Case No. 10F4732

The court ordered the defendant to pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a suspended $200 restitution fine pending completion of parole (Pen. Code, § 1202.45). The court further ordered defendant to pay a $30 court security fee (Pen. Code, § 1465.8, subd. (a)(1)); a $30 criminal conviction assessment (Gov. Code, § 70373); and a criminal laboratory analysis fee of $190 ($50 pursuant to Health & Saf. Code, § 11372.5; $50 pursuant to Pen. Code, § 1464; $10 pursuant to Pen. Code, § 1465.7; $5 pursuant to Gov. Code, § 76104.6; $15 pursuant to Gov. Code, § 76104.7; $25 pursuant to Gov. Code, § 70372; and $35 pursuant to Gov. Code, § 76000, subd. (a)(1)).

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 of the opening brief.

Defendant filed a supplemental brief alleging that her trial counsel provided ineffective assistance by failing to file requested motions, failing to explain her maximum exposure or otherwise properly advise her, and pressuring her into signing a plea bargain against her will. Defendant also alleges that she informed counsel she wanted to withdraw her plea, but he would not listen to her or inform the trial court of her wishes. However, defendant fails to cite to the record to support any of these allegations. Because the record does not support her allegations, her remedy, if any, must be by way of a petition for writ of habeas corpus.

DISCUSSION

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. However, we have found two corrections to the record that need to be made.

Drug Lab Fees and Penalty Assessments

First, as to case No. 10F37, the trial court should have imposed a criminal laboratory analysis fee of $50 under Health and Safety Code section 11372.5 on each count, not a single lab fee for the case. Health and Safety Code section 11372.5 requires that the fee be imposed for "each separate offense." Additionally, the court should have imposed the mandatory penalty assessments on each lab fine. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1257; People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522.) Since the fee and penalty assessments are mandatory and apply to each conviction, the failure to impose them in full renders the sentence unauthorized, and we have the power to correct it on our own motion even though the People did not object below. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Turner (2002) 96 Cal.App.4th 1409, 1414-1415; Terrell, supra, 69 Cal.App.4th at pp. 1255-1256.) In the interest of judicial economy and because the trial court's errors and the appellate remedies are clear, we will modify the judgment without requesting supplemental briefing. (People v. Taylor (2004) 118 Cal.App.4th 454, 456.) We shall therefore order the judgment modified to impose the correct fee under Health and Safety Code section 11372.5, along with the appropriate penalty assessments, in case No. 10F37.

Presentence Custody Credits

Second, the abstract of judgment erroneously states that defendant's presentence custody credits total 321 days, rather than 312 days. On remand, the trial court is directed to prepare a corrected abstract of judgment reflecting the proper number of days of presentence custody credits.

DISPOSITION

The judgment is modified in case No. 10F37 to increase the criminal laboratory analysis fee imposed under Health and Safety Code section 11372.5 to $50 for each count plus the additional penalty assessments. The total lab fee and penalty assessments for each count is $190 ($50 pursuant to Health & Saf. Code, § 11372.5; $50 pursuant to Pen. Code, § 1464; $10 pursuant to Pen. Code, § 1465.7; $5 pursuant to Gov. Code, § 76104.6; $15 pursuant to Gov. Code, § 76104.7; $25 pursuant to Gov. Code, § 70372; and $35 pursuant to Gov. Code, § 76000, subd. (a)(1)). The total combined amount for the lab fees and penalty assessments for all three counts is $570. The trial court is directed to prepare a new abstract of judgment reflecting the corrected fees and penalty assessments and the correct total award of presentence custody credits, and to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: NICHOLSON, Acting P. J. ROBIE, J.

20110512

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