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The People v. Roberto Jose Perez

January 19, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERTO JOSE PEREZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. 054370)

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

P. v. Perez

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In August 2005 defendant Roberto Jose Perez pleaded no contest to possession of marijuana for sale. (Health & Saf. Code, § 11359.) In exchange, a count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) was dismissed and defendant was promised no state prison at the outset. Imposition of sentence was suspended and defendant was placed on probation for three years on conditions including 120 days of incarceration.*fn1

In April 2008 a petition was filed alleging that defendant violated his probation by possessing controlled substances. He admitted the violation and was sentenced to state prison for the upper term of three years. Execution of sentence was suspended and defendant was reinstated on probation, which was extended until January 2011.

In October 2010 a petition was filed alleging that defendant violated his probation by testing positive for methamphetamine. Following a contested hearing in December 2010, the trial court revoked probation, ordered execution of the state prison sentence, and ordered him to pay a $30 criminal conviction assessment (Gov. Code, § 70373), a $30 court security fee (Pen. Code, § 1465.8), a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) plus $140 in penalty assessments, and a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) plus $420 in penalty assessments.

On appeal, defendant contends that (1) because he was convicted in 2005, the criminal conviction assessment must be stricken, the court security fee reduced to $20, and the penalty assessments on the laboratory fee reduced; and (2) the drug program fee is unauthorized and must be stricken because the record demonstrates that he lacks the ability to pay. We shall modify the judgment.

DISCUSSION I

Before considering defendant's contentions, we first consider the Attorney General's argument that the appeal is untimely and must be dismissed. The argument lacks merit.

Background

Judgment was pronounced on December 8, 2010. Defendant in propria persona filed a notice of appeal that stated, in relevant part: "The undersigned hereby appeals from the entire judgment entered in this case on ." The space intended for the date of entry of judgment was left blank. The notice of appeal was dated December 12, 2010, and was filed in the trial court the following day.

Upon receipt of this document, the trial court clerk prepared a "Clerk's Notice of Filing of Notice of Appeal." Supplying the date information that defendant had omitted, the clerk wrote: "NOTICE IS HEREBY GIVEN that Defendant/Appellant, Roberto Perez appeals to the court from ...


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