Filed: 6/1/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B255297
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA418152)
v.
LENNAL KHABIR SHABAZZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Edmund
Willcox Clarke, Jr., Judge. Affirmed as modified.
Sylvia Ronnau, 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, Susan Sullivan Pithey and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1100(b) and 8.1110, this opinion is
certified for publication with the exception of parts II (A), II (C) and their headings.
I. INTRODUCTION
Defendant, Lennal Khabir Shabazz, appeals after pleading no contest to two
felonies, methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)) and
receiving stolen property (Pen. Code,1 § 496, subd. (a)). The trial court issued a probable
cause certificate. He pled no contest on March 21, 2014. On the same date, defendant
was sentenced to two years in the county jail. No mandatory supervision was imposed.
Defendant received credit for 272 days in presentence custody. He completed his
sentence on September 24, 2014.
In the published portion of this opinion, we discuss whether we are required to
reduce defendant’s two felony convictions to misdemeanors. After defendant completed
his sentence, on November 4, 2014, the voters approved Proposition 47. (Prop. 47, as
approved by voters, Gen. Elec. (Nov. 4, 2014).) As we will explain, defendant, if he files
an application in the trial court, is potentially entitled to have his felony convictions
reduced to misdemeanors provided he does not have a disqualifying prior conviction.
(§ 1170.18, subds. (f)-(h).) At issue is whether we can order the reduction of his felony
convictions to misdemeanors. For the reasons we explain, we cannot because the voters
have expressly required he file an application in the trial court to reduce his felony
convictions to misdemeanors. In the unpublished portion of this opinion, we modify the
1 Further statutory references are to the Penal Code except where otherwise noted.
2
judgment to include a mandatory $50 criminal laboratory analysis fee together with $155
in penalties and a surcharge. We affirm the judgment as modified.
[Part II (A) is deleted from publication. See post at page 4 where publication is to
resume.]
II. DISCUSSION
A. Initial Briefing Order
We appointed counsel to represent defendant on appeal. After reviewing the
record, appointed appellate counsel filed an opening brief in which no issues were raised.
Instead, appointed appellate counsel requested we independently review the entire record
on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See Smith v. Robbins
(2000) 528 U.S. 259, 277-284.) On September 19, 2014, we advised defendant that he
had 30 days within which to personally submit any contentions or arguments he wished
us to consider. Also on September 19, 2014, defendant filed an objection to the Wende
brief. However, defendant’s letter brief did not raise any cognizable claim. No further
response has been received from defendant. We have examined the entire record and are
satisfied appointed appellate counsel has now fully complied with her responsibilities.
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[Part II (B) is to be published.]
B. Proposition 47
We asked the parties to brief the question whether we must designate defendant’s
convictions misdemeanors rather than felonies or take some other action. As noted
above, defendant was convicted of felony violations of section 496, subdivision (a) and
Health and Safety Code, section 11377, subdivision (a). However, on November 4, 2014,
after defendant was sentenced, after he had completed his concurrent felony sentences,
and while this appeal was pending, the voters approved Proposition 47. (Prop. 47, as
approved by voters, Gen. Elec. (Nov. 4, 2014).) The initiative: added Government Code
Chapter 33 (§ 7599 et seq., the “Safe Neighborhoods and Schools Fund”); added sections
459.5, 490.2 and 1170.18 to the Penal Code; amended sections 473, 476a, 496 and 666 of
the Penal Code; and amended Health and Safety Code sections 11350, 11357 and 11377.
(Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.) The
electorate’s stated purpose and intent was to: “(1) Ensure that people convicted of
murder, rape, and child molestation will not benefit from this act. [¶] (2) Create the
Safe Neighborhoods and Schools Fund . . . for crime prevention and support programs in
K-12 schools, . . . for trauma recovery services for crime victims, and . . . for mental
health and substance abuse treatment programs to reduce recidivism of people in the
justice system. [¶] (3) Require misdemeanors instead of felonies for nonserious,
nonviolent crimes like petty theft and drug possession, unless the defendant has prior
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convictions for specified violent or serious crimes. [¶] (4) Authorize consideration of
resentencing for anyone who is currently serving a sentence for any of the offenses listed
herein that are now misdemeanors. [¶] (5) Require a thorough review of criminal
history and risk assessment of any individuals before resentencing to ensure that they do
not pose a risk to public safety. [¶] (6) [And to] save significant state corrections dollars
on an annual basis[] . . . [and] increase investments in programs that reduce crime and
improve public safety, such as prevention programs in K-12 schools, victim services, and
mental health and drug treatment, which will reduce future expenditures for corrections.”
(Ballot Pamp., supra, text of Prop. 47, § 3, p.70.)
Of relevance in the present case, Proposition 47 made certain drug and theft
offenses misdemeanors instead of felonies or alternative felony misdemeanors, including
both offenses for which defendant was convicted. (Ballot Pamp., supra, text of Prop. 47,
§§ 5-13, pp. 71-73.) Except as will be noted, receiving stolen property (§ 496, subd. (a)),
if the value of the property did not exceed $950, and methamphetamine possession are
now misdemeanors.2 There are two relevant circumstances which prevent the application
2 As amended by Proposition 47, section 496, subdivision (a) states: “Every person
who buys or receives any property that has been stolen or that has been obtained in any
manner constituting theft or extortion, knowing the property to be so stolen or obtained,
or who conceals, sells, withholds, or aids in concealing, selling, or withholding any
property from the owner, knowing the property to be so stolen or obtained, shall be
punished by imprisonment in a county jail for not more than one year, or imprisonment
pursuant to subdivision (h) of Section 1170. However, if the value of the property does
not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor,
punishable only by imprisonment in a county jail not exceeding one year, if such person
has no prior convictions for an offense specified in [Section 667, subdivision
(e)(2)(C)(iv)], or for an offense requiring registration pursuant to subdivision (c) of
5
of the lesser misdemeanor sentences. The first circumstance arises when the defendant
has sustained a prior conviction for any of the violent or serious felonies listed in section
667, subdivision (e)(2)(C)(iv). The second circumstance occurs when the defendant has
previously sustained a conviction for an offense requiring sex offender registration under
section 290, subdivision (c). (Ballot Pamp., supra, text of Prop. 47, §§ 9, 13, 14; §
1170.18, subd. (i).) Here, the parties agree that the value of the stolen property defendant
received did not exceed $950. The parties further agree defendant does not appear to
have any disqualifying prior conviction.
As we view the issue, this is in large part a matter of the scope of the retroactive
application of section 1170.18. If the voters had merely made Health and Safety Code
section 11377, subdivision (a) and section 496, subdivision (a) misdemeanors, our
responsibilities would be clear. We would reduce both of defendant’s convictions to
misdemeanors. We would be required to do so based upon traditional rules concerning
amendatory statutes reducing punishments. (In re Estrada (1965) 63 Cal.2d 740, 742,
Section 290.” (Ballot Pamp., supra, text of Prop. 47, § 9, p.72, italics added in part and
omitted in part.) As amended by Proposition 47, Health and Safety Code section 11377,
subdivision (a) provides: “Except as authorized by law and as otherwise provided in
subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of
Chapter 9 of Division 2 of the Business and Professions Code, every person who
possesses any [specified] controlled substance . . . shall be punished by imprisonment in a
county jail for a period of not more than one year, except that such person may instead be
punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has
one or more prior convictions for an offense specified in [Section 667, subdivision
(e)(2)(C)(iv)] or for an offense requiring registration pursuant to subdivision (c) of
Section 290 of the Penal Code.” (Ballot Pamp., supra, text of Prop. 47, § 13, p.73, italics
added in part and omitted in part.)
6
748 (Estrada); People v. Keith (2015) 235 Cal.App.4th 983, 985-986.) But as we will
explain, the issue is not so simple in our context. We are reviewing felony convictions on
direct appeal. And, the voters have expressly enacted procedures to permit the
retroactive application of those portions of Proposition 47 which reduce certain felonies
to misdemeanors. As we shall explain, the voters have not expressed an intention to
permit us on direct appeal to reduce defendant’s felony convictions to misdemeanors
without the filing of an application.
There is no retroactivity issue for an accused convicted after the effective date of
Proposition 47 of violating Health and Safety Code section 11377, subdivision (a) and
section 496, subdivision (a). Unless the accused has a disqualifying prior conviction,
which we will discuss later, he or she may only be convicted of a misdemeanor. Further,
with clarity, the voters intended there be specified retroactive application of the
mitigating sentencing provisions of Proposition 47 for an accused sentenced prior to its
effective date. We now turn to the two ways an accused sentenced (or placed on
probation) prior to Proposition 47’s effective date may secure the initiative’s retroactive
application.
Section 1170.18 identifies two ways a defendant sentenced or placed on probation
prior to Proposition 47’s effective date can have his or her sentence for an enumerated
felony reduced to a misdemeanor. First, pursuant to section 1170.18, subdivision (a), the
defendant may file a petition if she or he is currently serving a felony sentence for an
enumerated offense. Section 1170.18, subdivision (a) states in part, “A person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
7
would have been guilty of a misdemeanor under the act that added this section (‘this act’)
had this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with Section[] . . . 11377 of the Health and Safety Code, or
Section . . 496 . . . of the Penal Code, as those sections have been amended or added by
this act.” Thus, if a defendant is serving a sentence for an enumerated offense in section
1170.18, subdivision (a), then he or she may file a petition. Upon filing the petition, then
the trial court proceeds in compliance with section 1170.18, subdivision (b).3 By its very
terms, section 1170.18, subdivision (a) is inapplicable to defendant. This is because he
completed his sentence on September 24, 2014, and is not subject to any post-judgment
supervision.
Second, if a defendant has completed his or her sentence for an eligible
conviction, in order to secure the reduction to a misdemeanor, an application must be
3 Section 1170.18, subdivision (b) states: “Upon receiving a petition under
subdivision (a), the court shall determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s
felony sentence shall be recalled and the petitioner resentenced to a misdemeanor
pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section
459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been
amended or added by this act, unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety. In
exercising its discretion, the court may consider all of the following: [¶] (1) The
petitioner’s criminal conviction history, including the type of crimes committed, the
extent of injury to victims, the length of prior prison commitments, and the remoteness of
the crimes. [¶] (2) The petitioner’s disciplinary record and record of rehabilitation while
incarcerated. [¶] (3) Any other evidence the court, within its discretion, determines to
be relevant in deciding whether a new sentence would result in an unreasonable risk of
danger to public safety.”
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filed. Section 1170.18, subdivisions (f) through (g) specify the defendant must file an
application and describes a procedure for the trial court to rule upon it. Section 1170.18,
subdivision (f) states, “A person who has completed his or her sentence for a conviction,
whether by trial or plea, of a felony or felonies who would have been guilty of a
misdemeanor under this act had this act been in effect at the time of the offense, may file
an application before the trial court that entered the judgment of conviction in his or her
case to have the felony conviction or convictions designated as misdemeanors.” Upon
the filing of the application by an eligible defendant, the trial court is required to reduce
the felony offense or offenses to a misdemeanor. Section 1170.18, subdivision (g) states,
“If the application satisfies the criteria in subdivision (f), the court shall designate the
felony offense or offenses as a misdemeanor.” Unless the defendant requests otherwise,
no hearing is necessary in order to rule upon the application filed under section 1170.18,
subdivision (f). (§ 1170.18, subd. (h).)
Defendant falls under section 1170.18, subdivisions (f) through (h). Unlike an
accused who is serving a sentence, on September 24, 2014, defendant has completed the
two-year concurrent felony terms imposed on March 21, 2014. Putting aside
jurisdictional issues as an appeal is pending, which we need not decide, if defendant filed
an application today, the trial court would be duty bound to grant it. That does not
answer the question though of what we, as an appellate court, must do. We view this as
an issue of whether the voters intended an appellate court, in the absence of a filing of an
application, may order felonies reduced to misdemeanors.
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We turn to the question whether Proposition 47 applies to defendant on appeal.
Defendant has served his concurrent sentences. If he filed an application to have his
felony sentences designated as misdemeanors, it is the general rule that new statutes
apply prospectively only. (§ 3; People v. Brown (2012) 54 Cal.4th 314, 319; People v.
Hayes (1989) 49 Cal.3d 1260, 1274.) Section 3 states, “No part of [the Penal Code] is
retroactive, unless expressly so declared.” However, our Supreme Court has carved out
“an important, contextually specific qualification” to the rule set forth in section 3.
(People v. Brown, supra, 54 Cal.4th at p. 323; accord, People v. Hajek and Vo (2014) 58
Cal.4th 1144, 1195 (Hajek).) In Estrada, supra, 63 Cal.2d at pages 742 and 748, our
Supreme Court held that an amendatory statute reducing punishment for a crime applies
in all cases not yet final on appeal. But this general rule does not apply when the
Legislature or the electorate has clearly indicated they did not so intend. (Accord, Hajek,
supra, 58 Cal.4th at pp. 1195-1196; People v. Brown, supra, 54 Cal.4th at p. 324.) As
our Supreme Court explained in Hajek: “. . . Estrada represents ‘an important,
contextually specific qualification to the ordinary presumption that statute operate
prospectively: When the Legislature has amended a statute to reduce the punishment for
a particular criminal offense, we will assume, absent evidence to the contrary, that the
Legislature intended the amended statute to apply to all defendants whose judgments are
not yet final on the statute’s operative date. [Citation.] We based this conclusion on the
premise that “‘[a] legislative mitigation of the penalty for a particular crime represents a
legislative judgment that the lesser penalty or the different treatment is sufficient to meet
the legitimate ends of the criminal law.’” [Citation.] “‘Nothing is to be gained,’” we
10
reasoned, “‘by imposing the more severe penalty after such a pronouncement . . . other
than to satisfy a desire for vengeance’” [citation]—a motive we were unwilling to
attribute to the Legislature.’ [Citation.]” (Hajek, supra, 58 Cal.4th at pp. 1195-1196.)
The electorate is presumed to have been aware of Estrada and its progeny when they
approved Proposition 47. (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11; Bailey v.
Superior Court (1977) 19 Cal.3d 970, 978, fn. 10; cf. People v. Scott (2014) 58 Cal.4th
1415, 1424 [the Legislature].)
It is clear Proposition 47 amended section 496, subdivision (a) and Health and
Safety Code section 11377, subdivision (a) to reduce the potential punishment for those
criminal offenses. It is also clear that defendant’s judgment is not yet final. As our
Supreme Court has repeatedly explained: “[A] judgment is not final until the time for
petitioning for a writ of certiorari in the United States Supreme Court has passed.
[Citations.]” (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Nasalga (1996) 12
Cal.4th 784, 789, fn. 5 (plur. opn. of Werdegar, J.); In re Pedro T. (1994) 8 Cal.4th 1041,
1046.) It follows that where a conviction has been entered and a sentence imposed, but
an appeal is pending, the judgment is not yet final. (People v. Babylon (1985) 39 Cal.3d
719, 722; In re N.D. (2008) 167 Cal.App.4th 885, 891.) Defendant is before this court on
direct appeal. Pursuant to the cited authority, his judgment is not yet final.
The question arises, then, whether Proposition 47 applies retroactively so that we
must reduce defendant’s convictions from felonies to misdemeanors. Stated differently,
the issue is whether the electorate intended the amendatory provisions of Proposition
47—reducing defendant’s crimes from felonies to misdemeanors—to be automatically
11
applied on appeal. As our Supreme Court held in Estrada, supra, 63 Cal.2d at page 744,
whether the amendatory initiative lessening punishment applies retroactively is a question
of legislative, or, in our case, voter intent. And our Supreme Court reaffirmed in In re
Pedro T., supra, 8 Cal.4th at page 1045, “The basis of our decision in Estrada was our
quest for legislative intent.” Further, in People v. Nasalga, supra, 12 Cal.4th at page 792,
our Supreme Court stated: “To ascertain whether a statute should be applied
retroactively, legislative intent is the ‘paramount’ consideration[.]” If the Legislature has
expressly stated its intent in a saving clause—for example, “shall be applied
prospectively”—that intent controls. (Estrada, supra, 63 Cal.2d at pages 746-747; see
People v. Floyd (2003) 31 Cal.4th 179, 192 (dis. opn. of Brown, J.) [an effective savings
clause specifically qualifies prospective application in relation to date of offense or
finality of conviction].) Absent an express saving clause, we must look for any other
indications of the electors’ intent. As our Supreme Court noted in Estrada, supra, 63
Cal.2d at page 744: “The problem, of course, is one of trying to ascertain the legislative
intent—did the Legislature intend the old or new statute to apply? Had the Legislature
expressly stated which statute should apply, its determination, either way, would have
been legal and constitutional. It has not done so. We must, therefore, attempt to
determine the legislative intent from other factors.” (See People v. Nasalga, supra, 12
Cal.4th at p. 794.)
To resolve this very specific retroactivity question, we apply the well settled rules
governing interpretation of voter intent: “‘In interpreting a voter initiative . . . , we apply
the same principles that govern statutory construction. [Citation.] Thus, “we turn first to
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the language of the statute, giving the words their ordinary meaning.” [Citation.] The
statutory language must also be construed in the context of the statute as a whole and the
overall statutory scheme [in light of the electorate’s intent]. [Citation.] When the
language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the
analyses and arguments contained in the official ballot pamphlet.” [Citation.]’
[Citation.] [¶] In other words, our ‘task is simply to interpret and apply the initiative’s
language so as to effectuate the electorate’s intent.’ [Citation.]” (Robert L. v. Superior
Court (2003) 30 Cal.4th 894, 900-901; accord, People v. Canty (2004) 32 Cal.4th 1266,
1276-1277.)
Proposition 47 does not contain an express saving clause. It does not refer to a
person, like defendant, who has been convicted and sentenced but whose appeal is
pending. But it does expressly, specifically and clearly address the application of the
reduced punishment provisions to convicted felons who were sentenced or placed on
probation prior to Proposition 47’s effective date. And it does so without regard to the
finality of the judgment. Defendant, of course, falls under section 1170.18, subdivision
(f). Defendant has completed his sentence. And he potentially would have been guilty of
misdemeanors had Proposition 47 been in effect at the time he committed his offenses
(assuming he does not have a disqualifying prior conviction.) The plain meaning of the
language in section 1170.18 is this—the voters never intended that Proposition 47 would
automatically apply to allow us to reduce defendant’s two felonies to misdemeanors.
Rather, the voters set forth specific procedures for securing the lesser punishment to
eligible persons such as defendant. These are the sole remedies available under
13
Proposition 47 for an accused sentenced prior to its effective date. For a convicted felon
who has served his or her sentence, the electors specified an application must be filed
pursuant to section 1170.18, subdivision (f). Section 1170.18, subdivision (f) requires
that an application be filed and resolved in the trial court. In other words, Proposition 47
does not apply retroactively so as to permit us to modify the judgment and then direct
that, upon remittitur issuance, defendants’ convictions be designated misdemeanors.
Defendant is limited to the statutory remedy set forth in section 1170.18, subdivision (f).
He must file an application in the trial court to have his felony convictions designated
misdemeanors. (See People v. Noyan (2014) 232 Cal.App.4th 657, 672.)
Our analysis is consistent with the express voter concern that certain defendants
with disqualifying prior convictions may not have their felony convictions reduced to
misdemeanors. As we explained, the enumerated felonies may not be reduced to
misdemeanors when the accused has sustained a specified prior violent or serious felony
conviction. These prior violent or serious felony convictions are set forth in section 667,
subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (i).) And, as we noted, no reduction to a
misdemeanor can occur if the accused has previously sustained a conviction for an
offense requiring sex offender registration. (§ 1170.18, subd. (i).)
Moreover, we previously set forth the relevant provisions of section 3 of
Proposition 47. (See pp. 4-5, supra.) There, the electorate expressed its anticipation that
a thorough review of criminal history and risk assessment of all convicted felons be
conducted before potential resentencing. And, the electorate made clear that the
initiative’s reduction of certain sentences to misdemeanors had no application when the
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accused had prior convictions for specified violent or serious crimes. (Ballot Pamp.,
supra, text of Prop. 47, § 3, p. 70.)
Further, as we stated, our record fails to indicate defendant has any such
disqualifying prior convictions. However, when he was sentenced, there was no issue as
to whether he had sustained any disqualifying prior convictions. He pled no contest and
was sentenced prior to the adoption of Proposition 47. The filing of an application alerts
the prosecution to the question of whether there are any disqualifying prior convictions.
Thus, our analysis insures the eligibility determination is made in a hearing where the
prosecution is on notice of the existence of the disqualifying prior conviction issue. Our
application of section 1170.18, subdivisions (f) through (h) furthers this express voter
concern.
Two final notes are in order. To begin with, there are other retroactivity issues
raised by the adoption of Proposition 47. We have addressed only one narrow aspect of
those issues. Finally, we need not address the issue of whether a defendant may appeal
the denial of an application to reduce an eligible felony to a misdemeanor. (See People v.
Loper (2015) 60 Cal.4th 1155, 1158, 1168 [post-judgment denial of §1170, subd. (e)
compassionate release recommendation appealable as an order made after judgment
affecting the accused’s substantial rights]; Teal v. Superior Court (2014) 60 Cal.4th 595,
598-601 [denial of post-judgment § 1170.126 sentence recall petition is appealable].)
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[Part II (C) is deleted from publication. See post at page 17 where publication is
to resume.]
C. Criminal Laboratory Analysis Fee
We asked the parties to brief the question whether the judgment must be modified
to include a $50 criminal laboratory analysis fee plus penalties and a surcharge. Because
defendant was convicted of violating Health and Safety Code section 11377, subdivision
(a), he is subject to a mandatory criminal laboratory analysis fee of $50 (Health & Saf.
Code, § 11372.5, subd. (a); People v. Valencia (2014) 226 Cal.App.4th 326, 330)
together with mandatory penalties and a surcharge (People v. Talibdeen (2002) 27
Cal.4th 1151, 1153-1157; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414,
1416.) The trial court failed to impose the mandatory fine. The judgment must be
modified to include the $50 fine together with $155 in mandatory penalties and a
surcharge (People v. Talibdeen, supra, 27 Cal.4th at pp. 1153-1157; People v. Valencia,
supra, 226 Cal.App.4th at p. 330) specifically: a $50 state penalty (§ 1464, subd. (a)(1));
a $35 county penalty (Gov. Code, § 76000, subd. (a)(1)); a $10 state surcharge (§ 1465.7,
subd. (a)); a $25 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); a $5
deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd. (a)); a $20 state-only
deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a)); and a $10 emergency
medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)). Imposition of the fee,
penalties and surcharge totaling $205 is insignificant and does not violate defendant’s
16
plea bargain. (People v. Turner, supra, 96 Cal.App.4th at p. 1414; compare People v.
Clark (1992) 7 Cal.App.4th 1041, 1047-1051.)
[The balance of the opinion is to be published.]
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III. DISPOSITION
The judgment is modified to impose a $50 criminal laboratory analysis fee under
Health and Safety Code section 11372.5, subdivision (a), together with $155 in
mandatory penalties and a surcharge, specifically: a $50 state penalty (Pen. Code, §
1464, subd. (a)(1)); a $35 county penalty (Gov. Code, § 76000, subd. (a)(1)); a $10 state
surcharge (Pen. Code, § 1465.7, subd. (a)); a $25 state court construction penalty (Gov.
Code, § 70372, subd. (a)(1)); a $5 deoxyribonucleic acid penalty (Gov. Code, § 76104.6,
subd. (a)); a $20 state-only deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd.
(a)); and a $10 emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)).
The judgment is affirmed in all other respects.
CERTIFIED FOR PARTIAL PUBLICATION
TURNER, P. J.
We concur:
MOSK, J. GOODMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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