P. v. Queen CA1/5

Filed 6/14/13 P. v. Queen CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A136591 v. MELODY ANN QUEEN, (Mendocino County Super. Ct. No. SCUKCRCR1119616) Defendant and Appellant.

Melody Ann Queen appeals from a judgment suspending execution of a two-year prison term and placing her on felony probation after she pled guilty to a single count of transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a).1 She challenges the imposition and amount of a drug program fee and laboratory analysis fee.2 We agree with appellant that the probation order must be amended to reflect the proper breakdown of the assessments and surcharges included in both fees and to correct a minute order that does not accurately reflect the fees imposed. We reject appellant’s argument that the court on remand must determine her ability to pay the drug program fee.

1 Statutory references are to the Health and Safety Code unless otherwise indicated. 2 In her opening brief, appellant also argued the probation order should be modified to clarify she would receive day-for-day credit against a 365-day jail term ordered as a condition of probation if she successfully completed a 12-month residential drug treatment program. Appellant withdrew this argument in her reply brief and we address it no further.

1

DISCUSSION

The superior court imposed a $570 drug program fee under section 11372.7, which provides in relevant part, “(a) Except as otherwise provided . . . each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. . . . [¶] (b) The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. . . . If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee.” The court also imposed a $190 laboratory analysis fee under section 11372.5, which provides, “(a) Every person who is convicted of a violation of Section . . . 11379 . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.” According to the probation report, these fees included the assessments and surcharges required by rule 4.102 of the California Rules of Court, as set forth in the Uniform Bail and Penalty Schedule. (See People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530 [summarizing various assessments, surcharges and penalties applicable to fees].) No breakdown of the assessments and surcharges was contained in the probation order. Appellant argues the case should be remanded so the superior court can provide a specific breakdown of the fees, assessments and surcharges included within the amounts imposed under sections 11372.7 and 11372.5. The People submit no remand is required because the $570 figure for the drug program fee and the $190 figure for the laboratory analysis fee correctly reflect the statutorily required assessments and surcharges. According to the People, the $570 drug program fee includes: (1) A $150 fee under section 11372.7, subdivision (a); (2) A $150 penalty assessment under Penal Code section 1464; (3) a $30 penalty surcharge under Penal Code section 1465.7; (4) a $105 penalty assessment under Government Code section 76000; (5) a $30 penalty assessment for Mendocino County under Government Code section 76000.5; (6) a $75 construction penalty under Government Code section 76372; (7) a $15 DNA penalty under