People v. Wharton CA2/8

Filed 1/12/16 P. v. Wharton CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B260317

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA425744) v.

GENIEKA WHARTON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, C.H. Rehm, Jr., Judge. Affirmed in part; reversed in part with directions.

Nadezhda M. Habinek, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, and Michael R. Johnsen, Deputy Attorney General, for Plaintiff and Respondent.

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Genieka Wharton appeals from a judgment following her conviction for one count of sale of a controlled substance. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel filed an opening brief requesting this court to review the record and determine whether any arguable issues exist on appeal. We have reviewed the entire record and find no arguable issue that would result in reversal of appellant’s conviction. But we invited briefing on two issues related to the fines and fees imposed by the trial court. Finding error in the imposition of those fines and fees, we must remand appellant’s sentence for further proceedings. PROCEDURAL HISTORY Appellant was charged with one count of violating Health and Safety Code section 11352, subdivision (a), sale of a controlled substance, to wit, cocaine. She pled not guilty. Before trial, the court granted her motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. On the day set for trial, the court denied her motion to remove her counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The case proceeded to a jury trial. Appellant elected not to testify and the court denied her motion to dismiss pursuant to Penal Code section 1118.1. The jury found her guilty as charged. The court sentenced her to time served (42 days in custody) and placed her on three years of formal probation. It imposed the following fines and fees: a $40 court operations fee (Pen. Code, § 1465.8, subd. (a)(1)); a $30 criminal conviction fee (Gov. Code, § 70373); a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)); a $20 DNA assessment (Gov. Code, § 76104.7); a $50 laboratory analysis fee “plus penalty assessments” (Health & Saf. Code, § 11372.5, subd. (a)); a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)); a suspended $300 probation revocation restitution fine (Pen. Code, § 1202.44); $2,386 in attorney fees, subject to appellant meeting with a financial evaluator (Pen. Code, § 987.8); and the actual cost of probation services (Pen. Code, § 1203.1b). Appellant timely appealed. STATEMENT OF FACTS Los Angeles Police Officer Edgar Ramos was working undercover on June 3, 2014, at approximately 8:00 p.m. in the area of 47th Street and Vermont Avenue in Los