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The People v. Remo Bernardo Gilbert

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


August 30, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
REMO BERNARDO GILBERT, DEFENDANT AND APPELLANT.

(Super. Ct. No. 090600)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After his conviction on conspiracy and drug charges by no contest pleas in February 2009, defendant Remo Bernardo Gilbert was placed on three years of formal probation. After finding multiple probation violations, on June 21, 2010, the trial court revoked defendant's probation and sentenced him to prison.

On appeal, defendant claims error in imposition of the court security fees (Pen. Code, § 1465.8, subd. (a)(1)), and the drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) at sentencing. The People concede the claimed errors. We agree with the parties and shall order the judgment modified accordingly.

DISCUSSION

I

Court Security Fees

The court imposed a total of $60 in court security fees, $30 for each count, pursuant to Penal Code section 1465.8, subdivision (a)(1). Defendant contends, and the People concede, that the court security fee should be reduced to $40, or $20 per count. We agree.

Effective July 28, 2009, the Legislature amended Penal Code section 1465.8, subdivision (a)(1) to increase the court security fee from $20 to $30. (Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 22, § 29.) Our Supreme Court concluded the Legislature intended this statute to be applied as of the date of the conviction. (People v. Alford (2007) 42 Cal.4th 749, 754.) Here, defendant entered no contest pleas on February 20, 2009, and thereby suffered "convictions." (People v. Davis (2010) 185 Cal.App.4th 998, 1001 [person is convicted upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt].) Former Penal Code section 1465.8, subdivision (a)(1) then provided a $20 court security fee per conviction. (Stats. 2007, ch. 302, § 18.)

II

Drug Program Fee

The abstract of judgment lists a $150 drug program fee, which the court did not orally impose when it pronounced judgment.*fn1 Defendant contends, and the People concede, that this fee should be stricken. We agree. The trial court did not orally order the drug program fee at sentencing. Nor was there any evidence or finding of ability to pay. Where there is a discrepancy between the court's oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)

DISPOSITION

The judgment is modified to (1) reduce the Penal Code section 1465.8, subdivision (a)(1) court security fee from $60 to $40, and (2) strike the $150 drug program fee. In all other respects, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the California

Department of Corrections and Rehabilitation.

We concur: RAYE , P. J. ROBIE , J.


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