APPEAL from a judgment of the Superior Court of Los Angeles County, John Fisher, Judge. (Los Angeles County Super. Ct. No. BA394874)
The opinion of the court was delivered by: Turner, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Reversed in part; affirmed as modified; affirmed in part.
Defendant, Michael Earl Hunt, appeals the judgment entered after he pled no contest to one count of transporting cocaine in violation of Health and Safety Code section 11352, subdivision (a). Defendant transported the cocaine on March 7, 2012. As we will discuss in detail, pursuant to a plea bargain: defendant was sentenced to nine years in prison; the execution of sentence was suspended; and defendant was placed on probation. The trial court imposed a Penal Code*fn2 section 1202.4 subdivision (b)(1) minimum $240 restitution fine. In addition, the trial court imposed and stayed a section 1202.45 parole restitution fine. Despite the fact defendant was placed on probation, no section 1202.44 probation restitution fine was assessed. In the published portion of this opinion, we address whether a section 1202.45 parole or section 1202.44 probation restitution fine should have been imposed and stayed. We conclude that even though the execution of sentence was suspended, the section 1202.44 restitution fine should have been assessed and stayed.
Defendant pled no contest to the cocaine transportation charge in count 1 of the information. Defendant also admitted he had: sustained a prior serious felony conviction for robbery within the meaning of sections 667, subdivisions (b) through (i) and 1170.12; served a prior prison term (§ 667, subd. (b); and sustained a prior felony drug conviction (Health & Saf. Code, § 11370.2). The trial court dismissed the prior serious felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 on the ground of its age. The parties agree defendant's prior robbery conviction render him ineligible for a felony county jail sentence. (§ 1170, subd. (h)(2).) Pursuant to the plea agreement, the trial court dismissed count 2 of the information which had charged defendant with possession of cocaine for purposes of sale. (Health & Saf. Code, § 11351.5.) On July 26, 2012, defendant was sentenced to prison for nine years, which consisted of: the high term of five years for count 1; plus three years for the prior drug conviction; and one year for the prior prison term enhancement. Execution of the sentence was suspended and defendant was placed on formal probation for three years. Defendant was ordered to pay a restitution fine of $240 (§ 1202.4) and a parole revocation restitution fine of $240 (§ 1202.45) which was suspended unless parole was revoked. No section 1202.44 probation restitution fine was imposed. Defendant was ordered to pay: a $30 criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and only a $30 criminal laboratory fee. (Health & Saf. Code, § 11372.5, subd. (a).) Defendant received a total presentence custody credit of 284 days consisting of 142 days of actual custody plus 142 days of conduct credit.
[Part III(A) is deleted from publication.]
A. Unpublished Discussion
The following facts were taken from the section 1538.5 motion to suppress hearing held after defendant waived his preliminary hearing right. On March 7, 2012, Los Angeles Police Officer David Braun was conducting a narcotics investigation of defendant. Prior to that date, Officer Braun received information that defendant was involved in narcotics dealing in the area of Pico Boulevard and La Brea Avenue. Officer Braun was given defendant's name, car and physical description. The car was described as a brown Cadillac. Defendant had such a Cadillac registered in his name. Officer Braun's partner, Detective Gonzalez, spoke with someone in the probation department. Detective Gonzalez was told that the Los Angeles County Superior Court database showed defendant was still on probation as of March 7, 2012.
Officer Braun drove to the area of Pico Boulevard and La Brea Avenue. Officer Braun observed defendant at an automated teller machine. Defendant began walking towards a brown Cadillac. Defendant got into the Cadillac on the driver's side. Officer Braun knew that the brown Cadillac was registered to defendant. Further, Officer Braun knew defendant's driver's license was suspended. After defendant started the engine, he put the Cadillac into reverse. Officer Braun stopped defendant for driving with a suspended license and to conduct a probation compliance search. Officer Braun asked defendant for permission to search the Cadillac. Defendant stated: "You could go ahead and check. I don't have anything." Officer Braun found two bindles of cocaine base directly underneath the driver's side of the Cadillac.
Defendant testified at the motion to suppress hearing. Defendant denied getting into the Cadillac. Rather, the officers approached him when he was outside the Cadillac. They handcuffed him and indicated they wanted to search the Cadillac. Defendant told the officers: "'I'm not on probation or parole or nothing. Why are you messing with me?'" The officers told him they had checked and defendant was on summary probation. The officers did not ask his permission to search the Cadillac. Defendant denied consenting to the search. On cross-examination, defendant admitted that his license was suspended. According to defendant, a brother-in-law, who was sitting in the passenger seat, was going to be driving.
Defense counsel argued defendant had been placed on probation in Los Angeles County Superior Court case No. SA069369 on January 16, 2009. And, probation was revoked and a bench warrant was issued on March 4, 2010, for failure to appear. Probation was reinstated on May 17, 2010. There was no indication from the clerk's May 17, 2010 minutes, that defendant was ...