People v. Thompson CA6

Filed 4/21/15 P. v. Thompson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040854 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F24497)

v.

AUNDRE JAHMAL THOMPSON,

Defendant and Appellant.

In a negotiated disposition, defendant Aundre Jahmal Thompson pleaded no contest to one count of selling or transporting cocaine base (Health & Saf. Code, § 11352, subd. (a)).1 The trial court dismissed a prior serious felony strike allegation and sentenced him to four years in state prison. Defendant’s timely appeal challenges the trial court’s imposition of a “$205 AIDS fine” and a “$205 lab fee.” We reverse.

I. Background The facts of defendant’s September 20, 2012 offenses are not relevant to the issues he raises on appeal, so we need not recount them.

1 Further statutory references are to the Health and Safety Code unless otherwise noted.

The trial court imposed various fines and fees at sentencing, including a “$205 lab fee” and a “$205 AIDS fine.” The court did not state the statutory basis for the fines and fees. Nor did it mention penalty assessments. Defendant raised no objections. There was no probation report. The clerk’s minutes state, “$205 Lab fees and $205 Aids fine to be paid through CDCR.” The abstract of judgment states, “Defendant to pay lab fee of $205.00 and AIDS fine of $205.00 to be paid through CDCR.”

II. Discussion A. AIDS Fine Defendant contends that the AIDS fine was unauthorized and that he did not forfeit the argument by failing to object below. The Attorney General concedes these points. We accept the concession. Penal Code section 1463.23 provides that “fifty dollars ($50) of each fine imposed pursuant to Section 4338 of the Business and Professions Code; subdivision (c) of Section 11350, subdivision (c) of Section 11377, or subdivision (d) of Section 11550 of the Health and Safety Code; or subdivision (b) of Section 264, subdivision (m) of Section 286, subdivision (m) of Section 288a, or Section 647.1 of this code, shall be deposited in a special account in the county treasury which shall be used exclusively to pay for the reasonable costs of establishing and providing for the county, or any city within the county, an AIDS (acquired immune deficiency syndrome) education program under the direction of the county health department . . . .” Defendant was not convicted under any of the statutes listed in Penal Code section 1463.23. He was convicted of violating section 11352, which is not listed. “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) That is the situation here. The AIDS fine (with attendant unspecified penalty assessments) was unauthorized. 2