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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.
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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
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Government Code section 76104.6, and (8) a $15 state DNA penalty under Government
Code section 76104.7.
The People also offer the following breakdown of the $190 laboratory analysis
fee: (1) A $50 fee under section 11372.5, subdivision (a); (2) A $50 penalty assessment
under Penal Code section 1464; (3) a $10 penalty surcharge under Penal Code section
1465.7; (4) a $35 penalty assessment under Government Code section 76000; (5) a $10
penalty assessment for Mendocino County under Government Code section 76000.5;
(6) a $25 construction penalty under Government Code section 76372; (7) a $5 DNA
penalty under Government Code section 76104.6, and (8) a $5 state DNA penalty under
Government Code section 76104.7.
Although we do not doubt the accuracy of the People’s computations, we agree
with appellant these amounts should have been set forth in the probation order. (People
v. Eddards (2008) 162 Cal.App.4th 712, 717-718 [case remanded so court could prepare
order specifying the statutory bases of all fees, fines and penalties imposed upon the
defendant in a case where probation was granted]; People v. High (2004) 119
Cal.App.4th 1192, 1200 [remanding case with directions to trial court to amend abstract
of judgment to identify amounts and statutory bases of all fines, penalties and fees
imposed].) “Although we recognize that a detailed recitation of all the fees, fines and
penalties on the record may be tedious, California law does not authorize shortcuts.”
(High at p. 1200.) We will remand the case for this limited purpose. This will also give
the superior court the opportunity to correct the minute order from the sentencing
hearing, which does not accurately recite the amount of the drug program and laboratory
fees actually imposed (incorrectly stating that the court imposed a $170 drug program fee
and a $590 laboratory analysis fee).
Appellant claims the drug program fee was unlawful because it was imposed
without the requisite determination she had the ability to pay. The argument is forfeited
due to trial counsel’s failure to object. (People v. McCullough (2013) 56 Cal.4th 589,
597 [failure to object to booking fees based on ability to pay forfeits issue].)
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DISPOSITION
The case is remanded to the superior court, which is directed to prepare an
amended probation order reflecting the breakdown of all assessments and surcharges
included in the $570 drug program fee imposed under section 11372.7 and the
$190 laboratory analysis fee imposed under section 11372.5, along with the statutory
basis for each component. The minute order for the sentencing hearing held on
August 17, 2012, should be amended to correctly reflect the fees imposed.
NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.
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