Filed 12/31/14 P. v. Gomez 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                DIVISION THREE



THE PEOPLE,
         Plaintiff and Respondent,
                   v.                                                    A140565, A141148
DAVID ANTHONY GOMEZ,
                                                                         (Lake County Super. Ct.
       Defendant and Appellant.                                          Nos. CR929581, CR933326)
In re DAVID ANTHONY GOMEZ,
         On Habeas Corpus.

         Defendant David Anthony Gomez appeals the five-year eight-month prison
sentence imposed after he entered no contest pleas in two separate actions. He contends
the trial court wrongly changed the structure of the sentence to which he agreed,
sentencing him to state prison rather than to county jail, and committed errors in the
manner in which it imposed certain fees and penalties. Defendant has also filed a petition
for a writ of habeas corpus (A141148) alleging ineffective assistance of counsel in
connection with the sentencing. Other than the need to correct an error in the abstract of
judgment, we find no merit in his contentions. Therefore, we shall affirm the judgment
and deny the petition that was consolidated with the appeal.
                                                 BACKGROUND
         On October 1, 2012, pursuant to a duly executed plea form executed in case
No. CR929581, defendant pleaded no contest to inflicting corporal injury on his spouse
(Pen. Code, § 273.5, subd. (a); count 1) and admitted two prior prison term allegations
(id., § 667.5, subd. (b)). All other counts and allegations were dismissed with a Harvey

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waiver.1 Pursuant to the negotiated plea, the court suspended imposition of sentence and
placed defendant on probation for three years.
       On September 10, 2013, in case No. CR933326, defendant was charged with
possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378;
count 1); transportation of methamphetamine (id., § 11379, subd. (a); count 2);
transportation of morphine (id., § 11352, subd. (a); count 3); possession of morphine (id.,
§ 11350, subd. (a); count 4); transportation of hydromorphone (id., § 11352, subd. (a);
count 5); possession of hydromorphone (id., § 11350, subd. (a); count 6); possession of
nunchaku (Pen. Code, § 22010; count 7); and possession of diazepam without a
prescription (Health & Saf. Code, § 11375, subd. (b)(2); count 8). The complaint also
alleged defendant had suffered six prior prison terms pursuant to Penal Code section
667.5, subdivision (b).2 These allegations were also the basis for charging defendant with
violation of the terms of his probation in the corporal injury case. On September 30,
2013, defendant pleaded no contest to counts 1 and 7, and admitted the violation of
probation. The remaining counts were dismissed as part of the plea agreement.
       Prior to entry of defendant’s plea on September 30, 2013, the prosecutor stated the
principal term was to be three years in case No. CR933326 (the drug case), and the
subordinate term of two years eight months in case No. CR929581 (the corporal injury
case). When the court asked to confirm the total sentence was “five years eight months in
state prison,” defense counsel responded, “[t]his is local.” The court then stated, “County
jail. Okay. You understand that agreement, sir? [¶] . . . [¶] You’re going to be sentenced
to five years and eight months in county jail?” To both questions, defendant responded,
“Yes, sir.”3 The plea form, signed by defendant, indicates that the negotiated plea was for
three years in “local jail” for the drug case and two years eight months in “local jail” for



1
  People v. Harvey (1979) 25 Cal.3d 754, 758.
2
  All further statutory references are to the Penal Code unless otherwise noted.
3
  It does not appear the trial court advised defendant he could withdraw his plea if the
court withdrew its approval of the plea before sentencing. (See § 1192.5.)
                                              2
violation of probation in the corporal injury case—a total of five years eight months
“local jail.”
         At the sentencing hearing on October 28, 2013, the prosecutor explained to the
court that it was necessary to do “a little rearranging as to the principal term and
subordinate term” and to make the sentence on the corporal injury case the principal
term. By imposing the midterm of three years on the corporal injury offense, enhanced by
two years for the two admitted prior prison terms, plus concurrent eight-month sentences
on counts 1 and 7 of the subordinate drug case, the prosecutor explained that the agreed
upon five-year eight-month term would be maintained.
         The following discussion ensued regarding whether the plea had been to a county
jail term:
         “THE COURT: I have a question. It reads as though this was an agreed to county
jail.
         “[PROSECUTION]: And I think that was simply something that might have been
placed on the plea form by [defense counsel]. I did not agree to county jail that I can
recall. I don’t intend to do that. And in particular, whereas here we have a 273.5, so I
don’t know why I would have.
         “THE COURT: Well, it’s a prison eligible case because of the charge.
         “[DEFENSE COUNSEL]: We do understand that. And I don’t know how I came
up—even on all my notes say local jail and we didn’t even talk about local jail. My client
is of the understanding and in agreement with the state prison case as long as you follow
the 5.8.
         “THE COURT: Okay. That will result to him being probably on PRCS
[(postrelease community supervision)4] when he is released from state prison; you
understand?
         “THE DEFENDANT: Yes, sir.
         “THE COURT: So with those understandings, are we ready to proceed?


4
    See the Postrelease Community Supervision Act of 2011 (§ 3450 et seq.).
                                              3
       “[DEFENSE COUNSEL]: Yes, sir.”
       The matter was submitted. The court revoked defendant’s probation in the
corporal injury case, and sentenced defendant to state prison for five years eight months
calculated as the prosecutor had proposed. The court imposed various fines and fees,
including a $1,440 restitution fine pursuant to section 1202.4, subdivision (b) ($960 in the
corporal injury case and $480 in the drug case), a $120 court security fee, a $90 criminal
conviction assessment, a $50 criminal laboratory analysis fine plus a $155 penalty
assessment, and a $150 drug program fine plus a $465 penalty assessment.
       Defendant filed a timely notice of appeal.
                                      DISCUSSION
I. The Plea Agreement
       Defendant contends the trial court erred when it restructured his sentence and
sentenced him to state prison, rather than to county jail. The Attorney General initially
argues defendant is barred from making this challenge because he failed to obtain a
certificate of probable cause. However, defendant is not attacking the plea he entered but
is challenging the sentence subsequently imposed as not in conformity with the plea
agreement. No certificate of probable cause is necessary to make such a challenge.
(People v. Brown (2010) 181 Cal.App.4th 356, 360.)
       “[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be a part of the inducement or consideration, such
promise must be fulfilled. [Citation.]” (People v. Walker (1991) 54 Cal.3d 1013, 1024,
overruled on another ground in People v. Villalobos (2012) 54 Cal.4th 177, 183.) “This
does not mean that any deviation from the terms of the agreement is constitutionally
impermissible.” (Ibid.) “[T]he variance must be ‘significant’ in the context of the plea
bargain as a whole to violate the defendant’s rights.” (Ibid.)
       Here, nothing indicates that defendant’s plea rested to any significant degree on
how the term of the sentence was calculated or whether it would be served in state prison
or county jail. The record indicates that the length of the five-year eight-month sentence,
and the dismissal of numerous counts and prison priors was the material inducement for

                                              4
entry of the plea. When the plea was entered, defendant faced a potential six-year term in
the corporal injury case (upper term of four years plus two 1-year enhancements), plus
whatever terms might be imposed on the eight counts that were charged in the drug case.
The probation officer recommended a prison sentence of seven years four months. When
the issue of restructuring defendant’s sentence arose at the sentencing hearing, although
defense counsel stated that she did not recall any previous discussions about local jail,
she also advised the court that she understood the need to impose a prison term as
opposed to county jail.5 She further stated that defendant was “of the understanding and
in agreement with the state prison case” as long as the sentence remained five years eight
months. Defendant made no objection. When the court asked defendant if he understood
that the state prison sentence could result in postrelease community supervision,
defendant responded, “Yes, sir.” Moreover, defendant’s declaration filed in support of his
habeas corpus petition states only that he “understood that my principal term would be
the drug case and the subordinate would consist of the domestic abuse violation of
probation.” Although he states that “[s]ince being sent to prison” he has encountered
“considerable problems” that he presumably would not have encountered with the
original sentence structure, including ineligibility for family visits and early release and
“a hard time qualifying for vocational training,” he makes no claim that the sentence
structure or placement in county jail was a significant factor in his acceptance of the plea
agreement. There is no indication in defendant’s declaration or elsewhere in the record
that these matters were even discussed, much less promised, as an inducement to enter his
plea. Thus, in imposing the five-year eight-month prison sentence to which defendant
acquiesced when imposed, the court maintained the material provisions of the plea
agreement, the agreed length of the term, and dismissal of the remaining charges.


5
  Section 1170.1, subdivision (a) provides that “[w]henever a court imposes a term of
imprisonment in state prison, whether the term is a principal or subordinate term, the
aggregate term shall be served in the state prison, regardless as to whether or not one of
the terms specifies imprisonment in a county jail pursuant to subdivision (h) of Section
1170.”
                                              5
II. Writ of Habeas Corpus
       Defendant’s habeas corpus petition claims that his trial counsel rendered
ineffective assistance with regard to the plea negotiations “by allowing a seriously
detrimental restructuring of the plea terms” without his “explicit and knowing consent,”
and, as a result, he was not afforded the benefit of his plea bargain. To demonstrate
ineffective assistance, defendant must establish that his counsel “failed to act in a manner
to be expected of reasonably competent attorneys acting as diligent advocates” (People v.
Pope (1979) 23 Cal.3d 412, 425, disapproved on a different ground in People v.
Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on another gound in People v
Hill (1998) 17 Cal.4th 800, 823, fn. 1), and that his attorney’s acts or omission caused
him prejudice (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 691–692).
Defendant has shown neither deficient performance nor prejudice.
       There is a “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” (In re Jones (1996) 13 Cal.4th 552, 561.) Even
assuming that confining defendant in state prison rather county jail presents some
disadvantages that defendant may not have anticipated, there is no showing or reason to
conclude that counsel’s failure to discuss with defendant the differences between prison
and jail incarceration fell below the standards of acceptable professional conduct.6 There
is no suggestion that his attorney was mistaken in agreeing with the prosecutor that the
five-year eight-month sentence was required to be served in prison rather than a county
jail. Defense counsel understood that her client was “in agreement with the state prison
case as long as” the court followed the agreed upon five-year eight-month term; and, as
indicated above, defendant said nothing at the time to question that understanding. Unlike
an attorney’s “quintessential duty” to inform a client whether the plea carries a risk of
deportation (Padilla v. Kentucky (2010) 559 U.S. 356, 371), to which defendant refers, no


6
  Defendant suggests that his trial counsel “appears to be not registered with the State Bar
[of California], at least according to the Bar’s website,” and that we “may take judicial
notice” of this fact. We decline defendant’s invitation as trial counsel’s registration and
contact information can easily be found both on the state bar website and in the record.
                                              6
authority suggests that counsel must describe all the conditions of confinement before
counseling a client to enter a plea to a criminal charge.
       In any case, there is no showing of prejudice. Although defendant’s declaration
claims that had he known about the supposed “complications” of prison confinement, he
“would have insisted that [his] attorney get [his] plea withdrawn or that she and the
prosecutor work out a satisfactory resolution,” he does not show that a better outcome
would have resulted if his attorney had advised him of these potential “complications.”
As there is no question that a prison sentence was required, there is no reason to assume
the court would have permitted defendant to withdraw his plea upon his discovery of this
immaterial departure from what was described when the plea was accepted. And
defendant suggests no other possible disposition that would have preserved the five-year
eight-month cap that defendant was principally concerned with obtaining; thus,
defendant’s ineffective assistance of counsel claim fails.
III. Fines and Assessments
       A. Restitution Fine
       Defendant challenges the $1,440 restitution fine imposed pursuant to section
1202.4, subdivision (b). Subdivision (b)(1) provides that a “restitution fine shall be set at
the discretion of the court and commensurate with the seriousness of the offense,” but
“shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two
hundred eight dollars ($280) starting on January 1, 2013, . . . and not more than ten
thousand dollars ($10,000),” “if the person is convicted of a felony.”
       Defendant alleges that the amount fixed was “uncertain and confusing.” He
suggests that the trial court may have improperly relied on the current statutorily
mandated minimum amount rather than the minimum that applied at the time of his 2012
corporal injury offense. He states, “it is impossible to know whether the court exercised
its discretion along the lines of the current version [of the statute] or something
different.” However, as defendant acknowledges, the restitution fine imposed could “be
imposed on the terms of his plea bargain.” We presume the trial court properly performed
its official functions in the absence of evidence to the contrary. (Evid. Code, § 664; Ross

                                              7
v. Superior Court (1977) 19 Cal.3d 899, 913.) The record contains no such evidence to
the contrary.
       Defendant also argues the trial court erred in failing to determine his ability to pay
the restitution fine. While defendant was entitled to have the court determine his ability to
pay, he forfeited that right by failing to object at the sentencing hearing. (People v.
Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347, 409 [the
defendant forfeited claim that trial court failed to consider ability to pay in imposition of
restitution fine]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1469 [defendant’s failure
to object to restitution fine constitutes waiver in the interests of fairness to sentencing
court, opposing party, judicial economy, and the needs for orderly and efficient
administration of law].)
       B. Laboratory and Drug Program Fees
       Defendant challenges the laboratory and drug program fees imposed pursuant to
Health and Safety Code sections 11372.5, subdivision (a) and 11372.7, subdivision (a),
respectively. He again argues the court erred in failing to consider his ability to pay, but
he also forfeited this claim by failing to object at sentencing. (People v. Martinez (1998)
65 Cal.App.4th 1511, 1517 [analyzing Health & Saf. Code, § 11372.7, subd. (b), and
concluding challenge to court’s order forfeited because “factual issues come into play in
determining whether a defendant has the ability to pay a drug program fee”]; accord,
People v. McCullough (2013) 56 Cal.4th 589, 597 (McCullough).) The criminal
laboratory analysis fee, moreover, is mandatory and the court is not obligated to make an
ability to pay determination. (People v. Staley (1992) 10 Cal.App.4th 782, 784-785 [the
defendant’s contention that trial court erred in imposing laboratory fees was meritless
because statute does not require finding of ability to pay].)
       Defendant refers us to People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399, for
the proposition that claims based on insufficiency of evidence do not require assertion in
the court below to be preserved on appeal. However, Pacheco was largely disapproved in
McCullough, supra, 56 Cal.4th at page 599. In McCullough, the defendant challenged a
$270.17 booking fee for insufficient evidence about his ability to pay. (Id. at p. 590.) He

                                               8
argued the booking fee orders result from the application of “ ‘an objective legal
standard’ ” akin to orders for involuntary HIV testing under section 1202.1 and People v.
Butler (2003) 31 Cal.4th 1119 (Butler). (McCullough, at pp. 596–597.) Our Supreme
Court disagreed, holding that “because a court’s imposition of a booking fee is confined
to factual determinations, a defendant who fails to challenge the sufficiency of the
evidence at the proceeding when the fee is imposed may not raise the challenge on
appeal.” (Id. at p. 597.) Likewise, defendant’s ability to pay both the laboratory and drug
program fees imposed here presents a question of fact forfeited absent a
contemporaneous objection. As the McCullough court explained, a defendant “may not
‘transform . . . a factual claim into a legal one by asserting the record’s deficiency as a
legal error.’ [Citation] By ‘failing to object on the basis of his [ability] to pay,’ [a]
defendant forfeits both his [or her] claim of factual error and the dependent claim
challenging ‘the adequacy of the record on that point.’ [Citations.]” (Ibid.)
       Discussing Butler, the McCullough court distinguished between forfeiture as to a
“de minimis” booking fee (McCullough, supra, 56 Cal.4th at p. 599) and a situation
which entails “constitutional concerns” (id. at pp. 595–596). Butler considered whether a
defendant could appeal involuntary HIV testing orders that had not been
contemporaneously challenged. The court held that “a defendant may challenge the
sufficiency of the evidence” to support imposition of an involuntary HIV testing order
“even in the absence of an objection.” (Butler, supra, 31 Cal.4th at p. 1123.) The
McCullough court explained that “ ‘[o]ur conclusion in [Butler] is controlled not only by
the specific terms of . . . section 1202.1, but also by the general mandate that involuntary
HIV testing is strictly limited by statute.’ [Citation.]” (McCullough, at p. 590.) Here, no
similar statutory or constitutional concerns exist. Accordingly, defendant has forfeited the
right to appeal the laboratory and drug fee orders on the ground that there was
insufficient evidence of his ability to pay.
       Defendant next argues the trial court erred when it failed to itemize the penalty
assessments imposed. However, the trial court’s October 28, 2013 “Criminal Minutes”
itemize the fees and penalty assessments as follows: “Lab Fee of: $50 plus a penalty

                                                9
assessment of $155 is imposed per [Health and Safety Code section] 11372.5” and a
“Drug Program Fee of: $150 plus a penalty assessment of $465 is imposed per [Health
and Safety Code section] 11372.7.” These amounts were recommended by the probation
officer in his report. Defendant’s only complaint in this regard is that the court failed to
specify the statutory bases for the components of the penalty assessments. However, the
trial court need not recite the amount and statutory basis for each separate assessment.
(See People v. Voit (2011) 200 Cal.App.4th 1353, 1373 [“We conclude that the trial court
adequately pronounced judgment by imposing a specific fine and generally referring to
the applicable penalty assessments.”]; see also People v. Sharret (2011) 191 Cal.App.4th
859, 864 (Sharret) [approving pronouncement of a laboratory fee and a drug program fee
“ ‘plus penalty assessment’ ”].)
       Defendant directs our attention to People v. High (2004) 119 Cal.App.4th 1192
and People v. Hamed (2013) 221 Cal.App.4th 928. Neither of these cases requires a
different result. In High, the trial court failed to articulate the amounts that represented
statutorily allowable fees as distinguished from penalties. The court provided only a total
sum for the “ ‘fee, together with surcharges and penalties,’ ” thus impeding collection
efforts of state and local agencies. (119 Cal.App.4th at p. 1200.) In Hamed, the court
found the penalty assessments were inaccurate. (221 Cal.App.4th at p. 940.) Here,
defendant does not contend that the assessments were unauthorized or miscalculated,7

7
  As the Attorney General stated in its respondent’s brief:
  “[T]he statutorily mandated penalty assessments triggered by the $50 laboratory
analysis fee were as follows: “(1) $50 for state penalty assessment ([Pen. Code,] § 1464,
subd. (a)(1)); (2) $10 for the state surcharge ([id.], § 1465.7); (3) $25 for the state
courthouse construction penalty (Gov. Code, § 70372); (4) $35 additional penalty ([id.],
§ 76000, subd. (a)(1)); (5) $10 for emergency medical services ([id.], § 76000.5, subd.
(a)(1)); (6) $5 for the DNA fingerprint penalty ([id.], § 76104.6, subd. (a)(1)); and (7) $20
for the forensic laboratories penalty ([id.], § 76104.7). Thus, in addition to the $50
laboratory analysis fee, the court properly imposed the additional $155 in assessments.
(See [Sharret, supra,] 191 Cal.App.4th [at pp.] 863-864 [applying these penalty
assessments to a lab analysis fee].)
  “Similarly, the statutorily mandated penalty assessments triggered by the drug program
fee was accurately calculated and included the following: (1) $150 for state penalty
                                              10
and the trial court was not required to itemize those amounts. (See Sharret, supra, 191
Cal.App.4th at 864.)
       Defendant does correctly contend, and the Attorney General agrees, that the
abstract of judgment incorrectly appends the laboratory and drug program fees to the
corporal injury conviction. We agree the abstract of judgment must be amended to reflect
that these fees attach to the drug case. “Courts may correct clerical errors at any time, and
appellate courts . . . that have properly assumed jurisdiction of cases have ordered
correction of abstracts of judgment that did not accurately reflect the oral judgments of
sentencing courts. [Citations.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
                                      DISPOSITION
       The trial court is directed to modify the abstract of judgment to reflect that the
laboratory and drug program fees attach to defendant’s conviction in the drug case. The
judgment is affirmed in all other respects and the petition for writ of habeas corpus is
denied.




assessment (Pen. Code, § 1464, subd. (a)(1)); (2) $30 for the state surcharge ([id.],
§ 1465.7); (3) $75 for the state courthouse construction penalty (Gov. Code, § 70372);
(4) $105 additional penalty ([id.], § 76000, subd. (a)(1)); (5) $30 for emergency medical
services ([id.], § 76000.5, subd. (a)(1)); (6) $15 for the DNA fingerprint penalty ([id.],
§ 76104.6, subd. (a)(1)); and (7) $60 for the forensic laboratories penalty ([id.],
§ 76104.7). Thus, in addition to the $150 drug program fee, the court properly imposed
$465 in assessments. (See [Sharret], supra, 191 Cal.App.4th at pp. 863-864 [applying
these penalty assessments to a drug program fee].)”
  Defendant does not dispute these calculations, but claims that “nothing in the record
indicates . . . the judge calculated [the penalty assessments] in the same manner.” Absent
evidence to the contrary, however, we presume the trial court properly performed its
official functions. (Evid. Code, § 664; Ross v. Superior Court, supra, 19 Cal.3d at p.
913.)
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                                 _________________________
                                 Pollak, J.




We concur:




_________________________
McGuiness, P. J.




_________________________
Siggins, J.




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