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The People v. Scott Matthew Calestini

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


July 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SCOTT MATTHEW CALESTINI, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRBF09-1852)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following his plea of guilty to voluntary manslaughter and his admission to personal use of a knife, defendant Scott Matthew Calestini appeals the sentence imposed. He contends the trial court failed to separately list each penalty imposed, and that the $170 laboratory analysis fee and the $170 drug program fee were unauthorized. We shall strike the unauthorized fees and shall affirm the judgment in all other respects.*fn1

FACTUAL AND PROCEDURAL BACKGROUND

A detailed recitation of the facts and circumstances is unnecessary for the disposition of this appeal. Briefly summarized, defendant and the victim, John Alexander, were partners in a marijuana cultivation enterprise conducted on defendant's property. During a fight, defendant stabbed and killed Alexander. Defendant was on misdemeanor probation for possession of marijuana (Health & Saf. Code, § 11357, subd. (c)) in case number 07-2112 at the time of the crime.

Defendant pleaded guilty in case number 09-1852 to voluntary manslaughter (Pen. Code, § 192, subd. (a))*fn2 and admitted personally using a knife during commission of the crime (Pen. Code, § 12022, subd. (b)(1)) in exchange for a 12-year sentencing lid and dismissal of all remaining charges and allegations pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey).*fn3 The court denied probation and sentenced defendant to an aggregate term of seven years in state prison.

The court imposed a $1,400 restitution fine (§ 1202.4, subd. (b)(2)) and a $1,400 parole revocation fine, stayed pending successful completion of parole (§ 1202.45), and stated as follows: "The court will also enter as orders that which is set forth specifically and verbatim in the probation department report on page 14, specifically paragraphs 1 through 9, as well as specifically and verbatim paragraphs 10 and 11 on page 15." The referenced portions of the probation report reflect the following recommended fees and fines: "restitution in the sum of $2,378.50 to Victims of Crime Fund, and restitution in the sum of $632.32 to Susan Buda," $340 for the cost of preparation of the probation report, a $170 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), a $170 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), a $30 court security fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $148 booking fee (Gov. Code, § 29550).

Defendant filed a timely notice of appeal.

DISCUSSION

I

Defendant contends the trial court erred when, in pronouncing oral judgment, it failed to state each of the fees, fines, and penalties on the record and instead incorporated by reference portions of the probation report. He claims that in order for the abstract to correctly reflect the court's oral pronouncement of judgment, the matter must be remanded for the trial court to articulate on the record each of the fees, fines, and penalties imposed. We disagree.

As we have explained, all fines and fees must be set forth on the record and in the abstract of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) Thus, the abstract must "separately list, with the statutory basis, all fines, fees and penalties imposed . . . ." (Id. at p. 1201.) "Although . . . a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. . . . At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections [and Rehabilitation] has no statutory obligation to collect a particular fee, . . . the fee [and penalty assessments] must be included in the abstract of judgment. [Citation.]" (Id. at p. 1200.)

Here, in spite of the trial court's shortcut by incorporating by reference portions of the probation report, further hearing is unnecessary. The abstract of judgment reflects the following fees and fines: a $30 court security fee, a $1,400 restitution fine, a $1,400 parole revocation fine (suspended), victim restitution in the amount of $3,010.82 ($2,378.50 of which is payable to the Victims of Crime Fund, and $632.32 of which is payable to Susan Buda), a $170 lab fee, a $170 drug program fee, a $30 criminal conviction assessment, and a $148 booking fee. As discussed below in part II of this opinion, both the lab fee and the drug program fee are unauthorized and must be struck. What remains are mandatory fees, fines, assessments, victim restitution, and a booking fee imposed in the base amount, all of which are not only authorized, but are separately listed along with the statutory basis therefore. No further hearing is necessary.

We note that the relevant portion of the probation report includes a $340 fee for the cost of preparation of the probation report pursuant to section 1203.1b. That fee was omitted from the abstract of judgment. However, given the absence of evidence in the record that the trial court followed the particular procedures set forth in section 1203.1b to determine defendant's ability to pay, omission of that fee was proper and the abstract therefore need not be modified in that regard.

II

Defendant challenges the imposition of a $170 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a $170 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)). The People correctly concede the abstract of judgment must be amended to strike the two fees.

Laboratory Analysis Fee

Health and Safety Code section 11372.5 provides in part: "(a) Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment."

While a judgment that fails to include the mandatory laboratory analysis fee is an unauthorized sentence which may be corrected on appeal, that fee is not applicable here. Defendant was charged with, but not convicted of, cultivating marijuana in violation of Health and Safety Code section 11358. That charge was dismissed with a Harvey waiver. In the absence of a conviction for that crime, imposition of the laboratory analysis fee is improper. Nor, as defendant correctly points out, does the stipulated probation violation in case number 07-2112 support imposition of the fee, as the underlying crime resulting in the grant of probation, violation of Health and Safety Code section 11357, subdivision (c), is not one of the crimes enumerated in section 11372.5 of that code triggering mandatory imposition of the laboratory analysis fee.

The $170 lab fee was unauthorized and must therefore be struck.

Drug Program Fee

Health and Safety Code section 11372.7 provides in part: "(a) Except as otherwise provided in subdivision (b) or (e), each person who is convicted of a violation of this chapter [Six] shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law."

Defendant's conviction for voluntary manslaughter under section 192, subdivision (a), is not a conviction of a violation of Chapter Six of the Health and Safety Code. Thus, imposition of the drug program fee was unauthorized and the $170 fee must be struck.

DISPOSITION

The $170 laboratory fee and the $170 drug program fee are stricken. The trial court is directed to amend the abstract of judgment to reflect these modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

We concur: NICHOLSON, J. MAURO, J.


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