Filed 1/25/16 P. v. Bobo CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----

THE PEOPLE,

                   Plaintiff and Respondent,                                                 C079766

         v.                                                                     (Super. Ct. No. CRF152355)

JOSEPH BOBO,

                   Defendant and Appellant.



         Appointed counsel for defendant Joseph Bobo asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Defendant also filed a supplemental brief. Based on our
review of the record and defendant’s supplemental brief, we reject defendant’s claim that
he should have been sentenced to a 70 percent - 30 percent split sentence rather than the
50-50 split sentence imposed by the trial court. The trial court did not abuse its
discretion. However, we will modify the judgment to impose a mandatory supervision
revocation restitution fine, and further direct the trial court to amend and correct the
abstract of judgment to reflect the orally imposed judgment (including deletion of items
stricken by the trial court) and to reflect the judgment as modified. Finding no other
arguable error that would result in a disposition more favorable to defendant, we will
affirm the judgment as modified.


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                                               I
       Yolo County Sheriff’s deputies contacted defendant while he was parked
alongside a freeway on-ramp. The deputies smelled marijuana, searched the vehicle, and
found cocaine, hashish, and more than 51 grams of methamphetamine. Defendant
admitted he possessed the methamphetamine for sale.
       The trial court heard and denied defendant’s Marsden motion. (People v. Marsden
(1970) 2 Cal.3d 118). Defendant pleaded no contest to possession of methamphetamine
for sale (Health & Saf. Code, § 11378 -- count 2), and admitted two prior drug
convictions within the meaning of Health and Safety Code section 11370.2, in exchange
for dismissal of various other charges and allegations and a stipulated split sentence of
eight years to be served in “county prison.”
       The trial court sentenced defendant to the middle term of two years on count 2,
plus two consecutive three-year terms for the enhancements, for an aggregate sentence
of eight years in county prison. The trial court ordered that the sentence was to be served
as a split term pursuant to Penal Code section 1170, subdivision (h)(5)(B),1 with four
years served in county jail and the remaining four years suspended under mandatory
supervision subject to written mandatory supervision conditions.
       The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $30
restitution collection fee (§ 1202.4, subd. (l)), a $50 criminal laboratory analysis fee plus
a $150 penalty assessment (Health & Saf. Code, § 11372.5), a $40 court operations
assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373,
subd. (a)(1)). The trial court said the drug program fee and penalty assessment were
stricken. The trial court awarded defendant 161 days of presentence credit (81 actual
days plus 80 conduct days). Defendant did not request a certificate of probable cause.




1 Undesignated statutory references are to the Penal Code.


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                                                 II
       Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
       Defendant filed a supplemental brief arguing that he “deserves” a 70 percent - 30
percent split sentence rather than the 50-50 split sentence the trial court imposed. The
contention lacks merit.
       Pursuant to section 1170, subdivision (h)(5), a trial court may impose a straight
jail commitment, or it may suspend execution of a portion of the jail term, during which
period the defendant would be placed on mandatory supervision by the probation
department. We review a trial court’s discretionary sentencing choice for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
       Our review of the record does not show that the trial court abused its discretion.
Defendant negotiated a split term county prison sentence. At the plea hearing, he told the
trial court, “I’d like to get it on record that I’d like a third split instead of a half split.”
The trial court responded, “Well, there’s no agreement as to the split. All it says is a
split, and so the split will be up to the Court. The agreement is that there’s eight years,
and it will be served locally. It won’t be served in the state prison. It will be served in
Yolo County Jail, and there will be a split. The rest is up to me. [¶] You understand?”
Defendant indicated that he did.
       At the sentencing hearing, defense counsel argued for “a two-year/six-year split,
which would be 730 days in custody, 2,190 days on mandatory supervision.” The
prosecution responded, “I support probation’s recommendation. Quite frankly, a 50/50
split seems a little generous given [defendant’s] criminal background. I certainly would
not support less than that.” The probation report recommended a term of eight years to
“be served in the Yolo County jail, or in an alternative custody program at the direction

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of Yolo County Sheriff in a manner deemed appropriate.” The trial court stated, “The
Court does feel that a 50/50 split is normally appropriate and will impose it. The eight
years translates to 2,920 days. . . . The 2,920 days are served 1,460 days in custody, or
alternative custody, and 1,460 days in mandatory supervision.”
       In sentencing defendant, the trial court considered the probation report and the
arguments of both parties. The probation report details defendant’s criminal history,
which begins in 1989 and includes crimes every several years despite grants of probation
and periods of incarceration in prison. Like his current offense, defendant’s prior crimes
consist primarily of drug related offenses and include possession, possession for sale, and
transportation. The trial court concluded it was appropriate to impose a sentence in
which defendant would be incarcerated locally for half of the eight-year term and spend
the remaining half of the term under mandatory supervision. Nothing in the record
suggests the trial court’s decision was irrational or arbitrary.
       Our review of the record does, however, disclose that the trial court did not impose
a $300 mandatory supervision revocation restitution fine as required by section 1202.45,
subdivision (b). The trial court did not mention the fine in its oral pronouncement of
sentence, nor does the probation report make reference to it. We will modify the
judgment to include the mandatory fine. (People v. Robinson (2012) 209 Cal.App.4th
401, 405.)
       We also note two issues related to the document entitled “Abstract of Judgment
Attachment Page,” one of which requires correction of the abstract. First, the attachment
page reflects a drug program fee of $150 plus penalties of $465. Those amounts were
expressly stricken by the trial court in its oral pronouncement of judgment. We will
direct the trial court to correct the abstract accordingly. (People v. Mitchell (2001)
26 Cal.4th 181, 185.)
       Second, the trial court’s oral pronouncement of judgment included imposition
of a $50 criminal laboratory analysis fee plus a $150 penalty assessment. (Health & Saf.

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Code, § 11372.5.) The attachment page reflects imposition of a $50 criminal laboratory
analysis fee plus penalties in the amount of $155. However, because the additional
$5 penalty reflected in the attachment page is attributed to a penalty mandated by
Government Code section 76104.6, subdivision (a)(1), the attachment page requires no
correction in that regard.
       Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is modified to impose a $300 mandatory supervision revocation
restitution fine. (§ 1202.45, subd. (b).) The judgment is affirmed as modified. The trial
court is directed to amend and correct the abstract of judgment to reflect the judgment as
orally pronounced -- deletion of the $150 drug program fee and $465 in penalties from
the abstract of judgment attachment page -- and to further reflect the judgment as
modified. The trial court shall forward a certified copy of the amended and corrected
abstract of judgment to the Department of Corrections and Rehabilitation.



                                                      /S/
                                                 Mauro, J.


We concur:



      /S/
Butz, Acting P. J.



     /S/
Hoch, J.



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