Filed 5/15/14 P. v. Prater CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039433, H039984
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS121340)

         v.

BRAEDIE LANE PRATER,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant Braedie Lane Prater pleaded guilty to five charges: bringing narcotics
paraphernalia into prison (Pen. Code, § 4573); possession of a controlled substance
(Health & Saf. Code, § 11375, subd. (b)(2)); possession of a drug without a prescription
(Bus. & Prof. Code, § 4060); possession of narcotics paraphernalia (Health & Saf. Code,
§ 11364.1, subd. (a)); and driving an unregistered vehicle (Veh. Code, § 4000,
subd. (a)(1)). Defendant admitted she had a prior felony conviction that qualified as a
strike. (Pen. Code, § 1170.12, subd. (c)(1).)
         Defendant was initially placed on Proposition 36 probation for 18 months. (See
Pen. Code, § 1210.1, subd. (a).) However, the trial court subsequently terminated
defendant’s Proposition 36 probation, dismissed the strike allegation, imposed but
suspended a four-year prison term, and placed her on formal probation.
       Defendant filed notices of appeal from the order terminating her Proposition 36
probation and from the post-plea proceedings. This court ordered defendant’s two
appeals considered together for briefing, oral argument, and disposition.
       On appeal, defendant’s appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts, but raises no issue.
We notified defendant of her right to submit written argument on her own behalf within
30 days. Defendant subsequently filed a letter brief, raising a number of issues regarding
trial counsel and the trial court. This court requested supplemental briefing on three
additional issues. As discussed below, we determine that remand is required so the trial
court can correct clerical errors in recording the offenses to which defendant pleaded
guilty and so the trial court can correct and clarify the amount of certain fees and fines.

                                  II.    BACKGROUND
       A.       Fact of the Offenses1
       On July 15, 2012, a Monterey County Sheriff’s deputy conducted a traffic stop
after observing defendant driving a vehicle that had no front or rear license plate and no
temporary registration affixed to a window. Defendant did not have a driver’s license or
any registration paperwork. The deputy confirmed that the vehicle had not been
registered for over six months. Deputies conducted an inventory search of the vehicle
prior to towing it. They found two methamphetamine pipes and numerous pills, some of
which were not in their original prescription bottle.
       Defendant was arrested. She claimed that she took the pills for back pain. At the
jail, defendant said she did not have any drugs or illegal items on her, but deputies found
a methamphetamine pipe during a strip search.




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           The factual summary is taken from the probation report.

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       B.     Charges and Pleas
       Defendant was charged with bringing narcotics paraphernalia into prison (Pen.
Code, § 4573; count 1); possession of a controlled substance (Health & Saf. Code,
§ 11375, subd. (b)(2); count 2); possession of a drug without a prescription (Bus. & Prof.
Code, § 4060; count 3); possession of narcotics paraphernalia (Health & Saf. Code,
§ 11364.1, subd. (a); count 4); and driving an unregistered vehicle (Veh. Code, § 4000,
subd. (a)(1); count 5). The complaint alleged that defendant had a prior felony conviction
that qualified as a strike. (Pen. Code, § 1170.12, subd. (c)(1).)
       Defendant pleaded guilty to all five counts and admitted the strike allegation on
July 25, 2012. Defendant entered the pleas pursuant to an agreement that she would be
referred for a determination of her eligibility for Proposition 36 probation. The
agreement further provided that if defendant was not eligible for Proposition 36
probation, the District Attorney would not oppose a Romero motion (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497) so that defendant could be sentenced to
48 months in state prison or have execution of that sentence suspended while she
completed drug treatment.
       Defendant was found eligible for Proposition 36 probation on July 30, 2012. On
that date, the trial court ordered her to complete 18 months of Proposition 36 probation.
One of the conditions of defendant’s Proposition 36 probation was that she attend five
NA/AA meetings per week and provide written proof of her attendance at all court
hearings. Another condition required defendant to participate in “any counseling or
substance abuse program the Court deems necessary.” Defendant was also ordered to
pay a number of fees and fines.
       C.     Probation Violations
       On August 16, 2012, defendant appeared at a Proposition 36 review hearing and
brought proof of her attendance at seven NA/AA meetings. At a Proposition 36 review



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hearing held on October 4, 2012, the trial court assessed her one “strike” for failing to
provide proof of her attendance at NA/AA meetings.
       Defendant failed to appear for a Proposition 36 review hearing on November 29,
2012. On December 11, 2012, defendant admitted she violated her probation by failing
to appear for that hearing. The trial court ordered defendant to provide proof of
enrollment in a designated treatment program.
       Defendant failed to appear for another Proposition 36 review hearing on
December 20, 2012. At a hearing held on March 6, 2013, the trial court found defendant
was not in violation of her probation, but it terminated her Proposition 36 probation,
finding that she had refused drug treatment. The trial court noted that defendant had
never brought in proof of her attendance at any additional NA/AA meetings, nor any
proof of her enrollment at the designated treatment program.
       Defendant filed a notice of appeal from the above orders on March 15, 2013.
       D.     Marsden Motion
       On April 10, 2013, defendant filed a Marsden motion. (People v. Marsden (1970)
2 Cal.3d 118 (Marsden).) Defendant complained that trial counsel was ineffective and
that there had been a breakdown in the attorney-client communication. She indicated she
wished to withdraw her pleas.
       At the hearing on the Marsden motion, defendant explained that she had only one
telephone call with trial counsel and claimed she did not get along with him. She stated
that she had wanted to fight her case. Trial counsel responded by describing the
communication he had with defendant prior to her change of plea hearing and why he did
not file a motion to suppress. Trial counsel also noted that he no longer represented
defendant; another attorney from the Public Defender’s office was now representing her.
       The trial court denied defendant’s Marsden motion on April 17, 2013.




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       E.      Sentencing
       On June 11, 2013, the trial court dismissed the strike allegation, imposed the four-
year upper term for count 1, suspended execution of sentence, and placed defendant on
formal probation for three years. The trial court did not impose sentence on the
misdemeanor counts.
       Defendant filed a notice of appeal on July 30, 2013, specifying that her appeal was
based on her sentence or other matters occurring after the plea that do not affect the
validity of the plea.

                                   III.   DISCUSSION
       After reviewing the record pursuant to Wende, supra, 25 Cal.3d 436, we requested
supplemental briefing on three issues.
       A.      Pleas
       We first asked the parties to address whether the clerk erred in recording that
defendant entered guilty pleas only as to counts 1, 2, 3, and 5, and whether defendant
entered a guilty plea as to count 2 or count 4. Both parties agree that defendant pleaded
guilty to all five counts.
       On the waiver of rights form defendant signed on July 25, 2012, defendant
indicated she was pleading guilty to all five counts. The reporter’s transcript of the
hearing held that day does not indicate that any of the counts would be dismissed or that
defendant would be pleading to only some of the charges.
       However, the reporter’s transcript is somewhat ambiguous as to whether defendant
pleaded guilty to count 2. After defendant pleaded guilty to count 1, the trial court asked
for defendant’s plea to “being in possession of --” and defendant stated, “Guilty.” The
trial court continued, “-- possession of a drug, without a prescription, on that same date,
as alleged in the misdemeanor [sic], Count 3 . . . .” Defendant stated, “Guilty.”
Defendant then pleaded guilty to counts 4 and 5.



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       Defendant offers an explanation of the ambiguity in the reporter’s transcript,
noting that it appears defendant simply interrupted the trial court’s description of count 2,
which alleged she possessed a controlled substance, by stating “Guilty” as the trial court
asked for her plea to “being in possession of --”.
       After reviewing the entire record, we agree it reflects that defendant intended to
enter and did enter guilty pleas as to all five counts. However, the minutes from the
July 25, 2012 hearing state that defendant pleaded guilty to counts 1, 2, 3, and 5, but not
count 4. Further, on August 10, 2012, the clerk corrected the July 30, 2012 minutes,
nunc pro tunc, to state that “[a]ll remaining charges . . . are hereby ordered dismissed,”
although no such statement is reflected in the reporter’s transcript from that hearing.
Moreover, the minutes from October 4, 2012 and all remaining hearings indicate that
count 4 was dismissed.
       As both parties agree that defendant pleaded guilty to all five counts, we will
direct the clerk to correct the minute orders to properly reflect that defendant pleaded
guilty to all five counts and that count 4 was not dismissed.
       B.     Restitution Fines
       We also requested the parties address whether, at the June 11, 2013 hearing, the
trial court erred by imposing a $280 restitution fund fine (Pen. Code, § 1202.4, subd. (b))
and a $280 stayed probation revocation restitution fine (Pen. Code, § 1202.44) as to
count 1, and whether the clerk erred in recording that the trial court imposed an additional
$420 restitution fund fine as to counts 2, 3, and 5.
       At the July 30, 2012 hearing, at which defendant was placed on Proposition 36
probation, the trial court imposed a $240 restitution fund fine and a $240 stayed
probation revocation restitution fine.
       As noted above, at the June 11, 2013 sentencing hearing, the trial court imposed
sentence as to count 1 only. In imposing that sentence, the trial court ordered defendant
to pay a $280 restitution fund fine and a $280 stayed probation revocation restitution fine.

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The trial court did not orally impose an additional restitution fine as to any other counts.
However, the minutes for the June 11, 2013 hearing reflect imposition of an additional
$420 restitution fund fine “as to counts 2, 3, & 5.”
       Since “a restitution fine survive[s] the revocation of probation,” the original $240
restitution fund fine and $240 probation revocation restitution fine “remained in force”
despite the termination of defendant’s Proposition 36 probation. (People v. Chambers
(1998) 65 Cal.App.4th 819, 822-823.) The trial court was not authorized to impose
additional or increased fines; thus, at the June 11, 2013 sentencing hearing, the trial court
should have simply ordered that the record reflect the restitution fines previously
imposed. (See People v. Cropsey (2010) 184 Cal.App.4th 961, 966.)
       The Attorney General acknowledges these discrepancies in the record and
suggests a remand or a reduction of the fines. Defendant contends, and we agree, that the
$420 restitution fund fine reflected as to counts 2, 3, and 5 must be stricken, and that the
record should reflect that defendant was ordered to pay the previously-imposed $240
restitution fine and the $240 stayed probation restitution fund fine instead of the $280
fines imposed on June 11, 2013.
       We will direct the clerk to correct the June 11, 2013 minute order to reflect the
proper restitution fine and stayed probation restitution fund fine amounts.
       C.     Drug Program Fee and Lab Fee
       Finally, we asked the parties to address whether the trial court erred by imposing a
$280 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5) and a $200 drug
program fee (Health & Saf. Code, § 11372.7) at the July 30, 2012 hearing, and we asked
the parties to identify the count or counts to which those fees applied.
       The parties agree that these two fees applied only to count 2, i.e., defendant’s
violation of Health and Safety Code section 11375, subdivision (b)(2). The parties also
agree that both fee amounts appear to be incorrect. Under section 11372.5,
subdivision (a), the criminal laboratory analysis fee is $50, and under section 11372.7,

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subdivision (a), the drug program fee is not to exceed $150. Both fees are subject to
mandatory penalty assessments, which may have been included in the total amounts
imposed but were not separately listed in the trial court’s oral pronouncement or in the
clerk’s minutes. (See People v. Sharret (2011) 191 Cal.App.4th 859, 863-864; People v.
Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Voit (2011) 200 Cal.App.4th 1353,
1374; People v. High (2004) 119 Cal.App.4th 1192, 1200.)
       As to the criminal laboratory analysis fee, the Attorney General calculates penalty
assessments of $140 to be added to the $50 fee, for a total of $190. As to the drug
program fee, the Attorney General posits that the trial court may have imposed a $200 fee
in error and without penalty assessments, or that the trial court imposed a fee of less than
$150 and then added penalty assessments.
       Defendant contends there is insufficient evidence of her ability to pay the drug
program fee plus penalty assessments. (See Health & Saf. Code, § 11372.7, subd. (b);
People v. Corrales (2013) 213 Cal.App.4th 696, 702 [remand for ability to pay hearing
required where trial court determined defendant was able to pay a $150 drug program fee
but failed to impose penalty assessments, which would have resulted in a $540 total fee].)
       Since the record is ambiguous regarding the manner in which the trial court
calculated the lab fee and drug program fee, particularly regarding whether either fee
included any penalty assessments, and in light of the fact that the lab fee appears to be
incorrect even if penalty assessments are included, we will remand this matter to the trial
court for recalculation of these two fees and consideration of defendant’s ability to pay
the drug program fee plus penalty assessments.
       D.     Defendant’s Claims
       In defendant’s supplemental letter brief, she states a number of complaints about
the attorney who represented her at the time of her pleas. In particular, defendant appears
to believe that trial counsel should have filed a motion to suppress. She also appears to
argue that the trial court should have granted her Marsden motion and that the trial court

                                             8
should have excused her for failing to comply with the terms of her Proposition 36
probation.
       Having carefully reviewed the entire record and defendant’s letter, we conclude
that there are no arguable issues on appeal other than those we identified in our request
for supplemental briefing. (Wende, supra, 25 Cal.3d at pp. 441-443.)
                                  IV.    DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court with
directions to: (1) correct the clerical errors in recording the offenses to which defendant
pleaded guilty; (2) correct the June 11, 2013 minute order to strike the $420 restitution
fund fine reflected as to counts 2, 3, and 5; (3) correct the June 11, 2013 minute order to
strike the $280 restitution fund fine (Pen. Code, § 1202.4, subd. (b)) and $280 stayed
probation revocation restitution fine (Pen. Code, § 1202.44) and instead reflect
imposition of the previously imposed $240 restitution fund fine and $240 stayed
probation revocation restitution fine; and (4) identify the amount of the criminal
laboratory analysis fee (Health & Saf. Code, § 11372.5) and the amount of the drug




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program fee (Health & Saf. Code, § 11372.7), including any applicable penalty
assessments, and consider defendant’s ability to pay the drug program fee plus any
applicable penalty assessments.




                                  ___________________________________________
                                  BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.




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