People v. Persell CA3

Filed 9/26/14 P. v. Persell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C074750

Plaintiff and Respondent, (Super. Ct. No. CRF131837)

v.

CHARLES PERSELL,

Defendant and Appellant.

Defendant Charles Persell appeals following the imposition of a state prison sentence pursuant to a plea agreement. He contends only that the abstract of judgment requires correction. The Attorney General agrees that the abstract needs correction, but not for the reason given by defendant. We affirm defendant’s conviction, but remand for further proceedings as explained below. FACTUAL AND PROCEDURAL BACKGROUND An information charged defendant and a codefendant with the following drug- related offenses: transportation of methadone (count 1; Health & Saf. Code, § 11352,

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subd. (a)); possession for sale of methadone (count 2; Health & Saf. Code, § 11351); transporting methamphetamine (count 3; Health & Saf. Code, § 11379, subd. (a)); possession for sale of methamphetamine (count 4; Health & Saf. Code, § 11378); possession of controlled substance paraphernalia (count 5; Health & Saf. Code, § 11364.1); and possession of methadone (count 6; Health & Saf. Code, § 11350).1 As to counts 1 through 4, it was alleged that defendant had suffered a prior conviction for violating Health and Safety Code section 11378. As to all counts, it was alleged that defendant had suffered three prior prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant pleaded no contest to counts 3 and 6 and admitted the prior drug conviction as to count 3 in return for a stipulated sentence of six years eight months in county jail, consisting of three years on count 3, three years for the prior conviction, and eight months on count 6 (Pen. Code, § 1170, subd. (h)); the remaining counts and allegations were dismissed. The factual basis for the plea, as recited by the prosecutor and stipulated to by defense counsel, was that on May 8, 2013, defendant was found in Yolo County to have possessed and transported an amount of methamphetamine sufficiently large to be not for personal use and to be in possession of methadone pills knowing of their value as a narcotic substance. In addition, he had been convicted of violating Health and Safety Code section 11378 on July 11, 2007, in Yolo County. The trial court thereafter imposed the stipulated sentence. The court also imposed various fines and fees, including a laboratory fee and assessments of $200 pursuant to Health and Safety Code section 11372.5. The court made an oral finding that defendant lacked the ability to pay the related drug program fee and assessments. (Health & Saf. Code, § 11372.7.) The court ordered defendant to pay a court construction fee of $30 on