THE PEOPLE v. JAMES WILLIAM ROLLAND (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

James William Rolland appeals the judgment entered following his conviction based on a plea of no contest to possession of a controlled substance.   (Health & Saf.Code, § 11350, subd. (a).)  We order the abstract of judgment modified to reflect the penalty assessments, fees and surcharges attributable to a $50 laboratory analysis fee imposed by the trial court pursuant to Health and Safety Code section 11372.5, subdivision (a) and, as so modified, affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

On April 12, 2010, Rolland accepted an indicated sentence, entered a plea of no contest to possession of a controlled substance and admitted two prior convictions within the meaning of the Three Strikes law.   The trial court struck one of the prior convictions in the interests of justice and sentenced Rolland to state prison.   The trial court ordered Rolland to pay, inter alia, “a $50 lab analysis fee plus penalty assessment[s] pursuant to Health and Safety Code section 11372.5.”

The minute order prepared in connection with the sentencing hearing indicates the trial court ordered Rolland to pay, among other fees, a $50 laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a), plus penalty assessments “in the amount of $105.00 and a 20 % state surcharge in the amount of $10.00, for a total of $165.00․”  The abstract of judgment reflects a laboratory analysis fee of $165.

CONTENTION

Rolland contends the matter must be remanded to the trial court with directions to prepare an amended abstract of judgment that specifies the penalty assessments, fines and fees attributable to the laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a).

The People concede the point and suggest that, on remand, the trial court should consider whether Rolland has the ability to pay a drug program fee under Health and Safety Code section 11372.7.

DISCUSSION

1. The abstract of judgment must be modified to specify the penalty assessments, fees and surcharges attributable to the laboratory analysis fee imposed pursuant to Health and Safety Code section 11372.5, subdivision (a).

As indicated, the trial court ordered Rolland to pay a $50 laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a), plus penalty assessments.   However, neither the minute order nor the abstract of judgment reflects the penalty assessments, fees and surcharges attributable to the laboratory analysis fee.   This was error.  (See People v. High (2004) 119 Cal.App.4th 1192, 1200.)

At the time of Rolland's sentencing in 2010, the penalty assessments, fees and surcharges imposed upon a $50 laboratory analysis fee under Health and Safety Code section 11372.5 were as follows:  A $50 penalty under Penal Code section 1464, subdivision (a)(1), and a $35 penalty under Government Code section 76000, subdivision (a)(1) (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153, fn. 2.);   a $15 court construction fee under Government Code sections 70372, subdivision (a) and 70375, subdivision (b) (People v. McCoy (2007) 156 Cal.App.4th 1246, 1254);  a $10 penalty assessment under Government Code section 76000.5, subdivision (a)(1), a $5 deoxyribonucleic acid penalty pursuant to former Government Code section 76104.6, subdivision (a)(1), and a $5 deoxyribonucleic acid state-only penalty under former Government Code section 76104.7, subdivision (a) (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530);  and, a 20 percent state surcharge of $10 under Penal Code section 1465.7, subdivision (a) (People v. Taylor (2004) 118 Cal.App.4th 454, 460).

Thus, at the time Rolland was sentenced, imposition of a $50 laboratory fee under Health and Safety Code section 11372.5, subdivision (a), resulted in $130 in assessments, fees and surcharges for a total financial obligation attributable to the laboratory analysis fee of $180.   Because these penalty assessments, fees and surcharges are statutorily mandated, we decline to reverse and remand to the trial court with directions to specify them.   Rather, in the interests of judicial economy, we shall order the abstract of judgment corrected to reflect the indicated penalty assessments, fees and surcharges.

2. The trial court implicitly found Rolland lacked the ability to pay a drug program fee.

In the respondent's brief, the People suggest that, on remand, the trial court should consider whether Rolland has the ability to pay a drug program fee under Health and Safety Code section 11372.7.   However, we presume the trial court did not impose the otherwise mandatory drug program fee at the time it sentenced Rolland because it found Rolland lacked the ability to pay the fee.   (Health and Saf.Code, § 11372.7, subd. (b).)  Consequently, we decline the People's suggestion to remand the matter to permit the trial court to reconsider this matter.

DISPOSITION

The judgment is ordered modified to reflect penalty assessments, fees and surcharges attributable to the laboratory analysis fee in the amounts of $50 under Penal Code section 1464, subdivision (a)(1), $35 under Government Code section 76000, subdivision (a)(1), $15 under Government Code section 70372, subdivision (a) and section 70375, subdivision (b), $10 under Government Code section 76000.5, subdivision (a)(1), $5 pursuant to former Government Code section 76104.6, subdivision (a)(1), $5 under former Government Code section 76104.7, subdivision (a), and $10 under Penal Code section 1465.7, subdivision (a).   As so modified, the judgment is affirmed.   The trial court is directed to prepare and forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

CROSKEY, J. ALDRICH, J.