People v. DeSantis CA5

Filed 6/13/16 P. v. DeSantis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069518 Plaintiff and Respondent, (Fresno Super. Ct. No. F10900238) v.

PASQUALE DESANTIS, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Poochigian, J. and Franson, J.

Defendant Pasquale DeSantis was convicted by no contest plea of transportation or sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3) and misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a); count 6). On April 10, 2014, the trial court sentenced him to six years on count 3, plus 180 days in jail on count 6, to be served concurrently. Pursuant to Penal Code section 1170, subdivision (h),1 the court ordered him to serve his sentence in local custody, and split his sentence into four years in custody and two years on mandatory supervised release. The court ordered a probation supervision fee at sentencing: “You are also ordered to pay fees and fines for probation supervision.”2 The corresponding minute order stated: “Court orders defendant to pay Probation Report and Supervis[i]on fee pursuant to PC 1203.1b ….” Similarly, the April 10, 2014 abstract of judgment reflected the trial court’s order that defendant pay a “PROBATION SUPERVISION AND REPORT FEE”; however, the words “SUPERVISION AND” were lined out at some point. According to a corrected minute order with a report date of April 18, 2014, the probation supervision fee was no longer ordered, and on June 3, 2014, the court issued a new abstract of judgment that also did not mention the fee. On June 6, 2014, defendant filed a notice of appeal from the April 10, 2014, sentence. On appeal, defendant contends, and the People concede, that a probation supervision fee was unauthorized. We agree. At the time of defendant’s sentencing hearing, section 1203.1b’s probation supervision fee provision did not apply to defendants who were placed on mandatory supervision under section 1170,