People v. Gutierrez CA3

Filed 5/25/16 P. v. Gutierrez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Mono) ----

THE PEOPLE,

Plaintiff and Respondent, C077327

v. (Super. Ct. No. MFE14000332)

JUAN MANUEL VARGAS GUTIERREZ,

Defendant and Appellant.

Defendant Juan Manuel Vargas Gutierrez appeals from a final judgment of conviction following his guilty plea to possession of methamphetamine for sale (Health & Saf. Code, § 11378),1 transportation of methamphetamine for sale (§ 11379, subd. (a)), transportation of methamphetamine for sale between two noncontiguous counties (§ 11379, subd. (b)), and using a minor as an agent in the sale of methamphetamine (§ 11380, subd. (a)). The parties agree, and we concur, the trial court erred in calculating the court operations and conviction assessments. Accordingly, we order the court

1 Undesignated statutory references are to the Health and Safety Code.

1

operations assessment reduced from $200 to $160, and the court facilities assessment reduced from $150 to $120. BACKGROUND2 Defendant was charged by complaint with four counts as follows: (1) possession of methamphetamine for sale (§ 11378; count 1); (2) transportation of methamphetamine for sale (§ 11379, subd. (a); count 2); (3) transportation of methamphetamine for sale between two noncontiguous counties (§ 11379, subd. (b); count 3); and (4) using a minor as an agent in the sale of methamphetamine (§ 11380, subd. (a); count 4). The complaint improperly treated conspiracy in violation of Penal Code section 182 as an enhancement allegation, rather than an independent substantive offense. Thus, with respect to counts 1, 2, and 4, the complaint alleged defendant conspired with Maria Socorro Vargas Gomez and another unknown person to commit the charged offenses. Defendant pleaded guilty to all four counts alleged in the complaint. Defendant also pleaded guilty to the “charge” of conspiracy to sell and transport methamphetamine. Defendant was then sentenced to serve an aggregate term of six years in state prison. The trial court also imposed various fines and fees, including “five court security assessments of $40 each, for a total of [$]200; [and] five [court facilities] assessments of $30 each for a total of $150.” Shortly thereafter, the prosecutor moved to strike the conspiracy allegations from the complaint. The trial court granted the motion, stating, “Stricken. So no conviction for Penal Code section 182(a)(1).” The trial court did not recalculate the court operations and court facilities assessments to reflect the fact defendant was convicted by plea of only four offenses, not five. Defendant filed a timely notice of appeal.