People v. Vargas-Barragan CA3

Filed 12/30/13 P. v. Vargas-Barragan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ----

THE PEOPLE,

Plaintiff and Respondent, C072255

v. (Super. Ct. No. S11CRF0190)

FLORENTINO VARGAS-BARRAGAN,

Defendant and Appellant.

Defendant Florentino Vargas-Barragan pled no contest to possession of cocaine for sale (Health & Saf. Code, § 11351) and admitted two prior drug convictions (Health & Saf. Code, § 11370.2, subd. (b)) and a prior serious felony conviction (Pen. Code,1 §§ 667, subds. (b)-(i), 1170.12). In exchange, three related counts were dismissed. Defendant was sentenced to state prison for 10 years, consisting of twice the low term of two years plus six years for the prior drug convictions. He was ordered to pay, among other things, a $195 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a))

1 Undesignated statutory references are to the Penal Code.

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and a $585 drug program fee (Health & Saf. Code, § 11372.7). The trial court expressly found defendant has the ability to pay the $460 cost of the probation report. (§ 1203.1b.) Defendant contends, and the People concede, the laboratory analysis fee and drug program fee must be modified to reflect the DNA penalty assessments in effect at the time of his offense. Defendant next contends the abstract of judgment must be amended to clarify that no theft fine (§ 1202.5) was imposed in this case. Finally, defendant contends the trial court’s finding he had the ability to pay for the costs of the probation report is not supported by substantial evidence. We conclude that: (1) the laboratory analysis and drug program fees must be reduced to reflect the DNA penalty assessments in effect when defendant committed his crime; (2) the abstract of judgment can be amended to clarify that no theft fine was imposed; and (3) defendant has forfeited his last contention by failing to object to the trial court’s imposition of the probation report fee. As amended, the judgment is affirmed. FACTS The facts of defendant’s offense are not at issue and need not be set forth in this opinion. DISCUSSION I DNA Penalty Assessments Defendant contends, and the People concede, the $195 laboratory analysis fee and $585 drug program fee must be reduced to reflect the penalty assessments in effect at the time of the offense. We agree. The trial court orally pronounced both fees but did not itemize their components. Instead, the itemization appears in a “Prison Fine Breakdown” appended to the abstract of judgment. The itemization shows the $150 base drug program fee is enhanced by two separate “State DNA” enhancements of $30, pursuant to Government Code section 76104.7. Similarly, the $50 base laboratory analysis fee is enhanced by two separate