Filed 6/3/16 P. v. McFarland CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068650

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF35080)

ANTHONY MC FARLAND,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Diane B.

Altamirano, Judge. Affirmed as modified and remanded with directions.

         Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lise S. Jacobson and Randall D.

Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellant Anthony McFarland entered into a plea agreement. Under that

agreement, appellant pled guilty to burglary of a vehicle (Pen. Code,1 § 459) and two

misdemeanors: possession of burglary tools and fleeing from a police officer. The

remaining counts, including misdemeanor possession of methamphetamine (Health &

Saf. Code, § 11377, subd. (a)) were dismissed with a Harvey waiver.2 The parties agreed

appellant would receive three years of formal probation

       The trial court granted probation but added two conditions, which are the subject

of this appeal. First, based on the Harvey waiver, the court ordered appellant to register

as a narcotics offender, although the drug possession count had been dismissed. Second,

and again based on the Harvey waiver, the court imposed a $50 lab fee.

       This appeal challenges the imposition of drug conditions, where there was no

"drug" conviction. The People correctly concede the trial court erred in imposing the

challenged conditions. We will order the court to strike both conditions.3

                                      DISCUSSION

                            A. The Registration Requirement

       The probation officer and the prosecution argued the Harvey waiver allowed the

court to impose drug conditions even in the absence of a conviction for a drug-related

offense.

1      All further statutory references are to the Penal Code unless otherwise specified.

2      People v. Harvey (1979) 25 Cal.3d 754.

3     The facts of the underlying offenses are not relevant to the issues in this appeal.
Thus we will omit the traditional statement of facts.
                                             2
       As the parties agree, the Harvey waiver allows the sentencing court to consider the

facts of the dismissed charges in exercising its sentencing discretion regarding the

charges for which a person has been convicted. (People v. Munoz (2007) 155

Cal.App.4th 160, 167.) The waiver is not the same as a conviction, and cannot be

considered as such in sentencing. (People v. Myers (1984) 157 Cal.App.3d 1162, 1168.)

       Health and Safety Code section 11590 authorizing registration of narcotics

offenders requires a conviction before registration can be ordered. Thus, the trial court

did not have the authority to order narcotics offender registration in this case.

                                         B. Lab Fee

       Just as with the registration discussion, the power to impose a lab fee under Health

and Safety Code section 11372.5 applies in cases where the defendant has been convicted

of an appropriate drug-related offense. As we have discussed above, a Harvey waiver

does not amount to a conviction. Thus, the court had no authority to impose the lab fee in

this case.

                                       DISPOSITION

       The trial court is directed to strike the order requiring registration and to strike the

$50 lab fee. The court shall amend the court's minutes appropriately. In all other

respects the judgment is affirmed.




                                               3
                       HUFFMAN, J.

WE CONCUR:




McCONNELL, P. J.



AARON, J.




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