P. v. Delgado CA1/3

Filed 3/7/13 P. v. Delgado CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A134860 v. MARY DELGADO, (Contra Costa County Super. Ct. No. 5-111786-0) Defendant and Appellant.

Defendant Mary Delgado appeals from a judgment convicting her of possession and transportation of methamphetamine and placing her on probation. Defendant does not challenge her conviction, but contends that two fees imposed as conditions of probation must be vacated or, alternatively, that the matter be remanded for further proceedings regarding the imposition of these fees. The Attorney General argues that defendant should be subject to the contested fees, but concedes that discrepancies in the record require remand. In light of the unsatisfactory condition of the record, we shall remand the matter to the trial court to redetermine the fees to be imposed as conditions of probation and affirm the judgment in all other respects. Relevant Procedural History Defendant was charged by information with possession and transportation of methamphetamine. (Health & Saf. Code, §§ 11377, subd. (a), 11379, subd. (a).) The information also alleged one prior strike conviction (Pen. Code, §§ 67, subds. (b)-(i), 1170.12), two prior prison term commitments (Pen. Code, § 667.5, subd. (b)), and that

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defendant is ineligible for probation (Pen. Code, §§ 1210.1, 1203, subd. (e)(4)). A jury found defendant guilty on both counts and the trial court found true the prior convictions. At sentencing, the court struck the prior strike conviction, suspended imposition of sentence and placed defendant on probation. According to the reporter’s transcript of the hearing, the court ordered as conditions of probation that defendant pay the cost of probation services as determined by the probation officer pursuant to Health and Safety Code section 11227.5, a drug program fee of $570 pursuant to Health and Safety Code section 11372.7, a $400 restitution fine, a $400 probation revocation fine, a probation report fee of $167, a court operations assessment of $80, and a criminal conviction assessment of $60. The clerk’s minute order also includes a $190 laboratory analysis fee that was not mentioned at the hearing and indicates that the probation report fee is $176, rather than the $167 reflected in the reporter’s transcript. Defendant filed a timely notice of appeal. Discussion Defendant claims that the court erroneously imposed the probation report fee without determining her ability to pay the fee as required by section 1203.1b,1 and that