Filed 3/9/15 P. v. Coreas CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B257455

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. BA406341)
         v.

ENRIQUE FRANCISCO COREAS,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Monica
Bachner, Judge. Reversed in part, and affirmed in part.
         James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Scott A. Taryle,
Supervising Deputy Attorney General, Rene Judkiewicz, Deputy Attorney General, for
Plaintiff and Respondent.
                                     _____________________________
       Defendant and appellant Enrique Francisco Coreas was charged by information
with two counts of driving under the influence (DUI) within 10 years of a prior felony
conviction for DUI or vehicular manslaughter (Veh. Code, § 23550.5, subd. (a) [counts 1
and 2]).1 The information further alleged that defendant committed a prior felony DUI
offense (§ 23153, subd. (b)).
       Defendant pled guilty to count 1. The trial court accepted the plea, and granted
the prosecutor’s motion to dismiss count 2 and the allegation under section 23153,
subdivision (b).
       Defendant was sentenced to 16 months in state prison. Relevant here, the trial
court orally imposed various fines and fees, including a $200 restitution fine (Pen. Code,
§ 1202.4, subd. (b)), a $200 parole revocation fine (Pen. Code, § 1202.45), and a $33
Laboratory Service Fund fee (Pen. Code, § 1463.14, subd. (b)).
       Defendant contends, and the Attorney General concedes, that the $33 lab fee was
unauthorized, because defendant’s conviction in count 1 was for violation of section
23550.5, subdivision (a), which is not enumerated among the violations for which the lab
fee may be imposed. Additionally, the Attorney General notes that the abstract of
judgment must be amended because the $200 parole revocation fine that the trial court
imposed at sentencing was erroneously omitted.
       Our review of the record shows that the abstract of judgment contains two errors.
It includes the $33 lab fee, which the trial court did not orally impose at the sentencing
hearing, and omits the $200 parole revocation fine, which it did properly impose at the
hearing. We remand for the trial court to prepare an amended abstract of judgment to
strike the $33 lab fee and include the $200 parole revocation fine, to correctly reflect its
oral pronouncement. In all other respects, we affirm the judgment.
       Our resolution of the case should not be understood as an implied agreement with
defendant’s argument, and the Attorney General’s concession, that the $33 lab fee
imposed under Penal Code section 1463.14, subdivision (b), does not apply to a


       1 Statutory   references are to the Vehicle Code, unless otherwise indicated.

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conviction under section 23550.5. An argument can be made that section 23550.5 is
merely an enhanced sentencing scheme applied to certain repeat offenders with a prior
DUI or vehicular manslaughter conviction. (See People v. Coronado (1995) 12 Cal.4th
145, 152, fn. 5 [“The prior conviction provisions of [former] Vehicle Code section 23175
do not define a substantive offense, but rather result in increased punishment for a current
conviction under Vehicle Code section 23152”].) Certain language in section 23550.5
suggests that it enhances punishment for convictions under section 23152 or 23153. We
do not reach the merits of the issue, however, due to the defects in the abstract of
judgment that require modification of the judgment.


                                      DISCUSSION2


       Penal Code section 1463.14, subdivision (b) provides that “[t]he board of
supervisors of a county may, by resolution, authorize an additional penalty upon each
defendant convicted of a violation of Section 23152 or 23153 of the Vehicle Code, of an
amount equal to the cost of testing for alcohol content, less the fifty dollars ($50)
deposited as provided in subdivision (a).” The lab fee may be imposed upon a showing
that the defendant has an ability to pay it. (Pen. Code, §1463.14, subd. (b).) Here, the
trial court neither held a hearing to determine defendant’s ability to pay the fee, nor orally
imposed the lab fee at sentencing. The failure to impose the fee, on a silent record,
implies a finding that the defendant does not have the ability to pay. (People v. Walz
(2008) 160 Cal.App.4th 1364, 1371.) The abstract of judgment thus conflicts with the
trial court’s oral pronouncement, which controls, and must be amended accordingly.
(People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).)
       Additionally, the trial court properly imposed a $200 parole revocation fine under
Penal Code section 1202.45, which is mandatory where, as here, a $200 restitution fine



       2 We do not discuss the facts of the offense, as they are not necessary to the
resolution of defendant’s appeal.

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under Penal Code section 1202.4, subdivision (b) has been imposed. (Pen. Code,
§1202.45, subd. (a) [“In every case where a person is convicted of a crime and his or her
sentence includes a period of parole, the court shall, at the time of imposing the
restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole
revocation restitution fine in the same amount as that imposed pursuant to subdivision (b)
of Section 1202.4”].) The parole revocation fine was incorrectly omitted from the
abstract of judgment. Again, the court’s pronouncement controls, and the abstract of
judgment must be corrected to reflect imposition of the $200 parole revocation fine under
Penal Code section 1202.45. (See Mitchell, supra, 26 Cal.4th at p. 185 [“An abstract of
judgment is not the judgment of conviction; it does not control if it is different from the
trial court’s oral judgment”].)


                                      DISPOSITION


       We reverse the order for the $33 Laboratory Service Fund fee (Pen. Code, §
1463.14, subd. (b)), and remand for the trial court to correct the abstract of judgment to
properly reflect that the lab fee is stricken and the $200 parole revocation fine under
Penal Code section 1202.45 is imposed. The clerk of the superior court shall send a copy
of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.




              KRIEGLER, J.


We concur:




              TURNER, P. J.                              MOSK, J.



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