Filed 12/21/16
            CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION FIVE

THE PEOPLE,                                  B270409

       Plaintiff and Respondent,             (Los Angeles County
                                             Super. Ct. No. BA428570)
       v.

ARTER MYLES,

       Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of
Los Angeles County, Shelly B. Torrealba, Judge. Affirmed
as modified.
     Pierpont M. Laidley for Defendant and Appellant.
     Kamala D. Harris, Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr. and Stacy S. Schwartz, Deputy Attorneys
General, for Plaintiff and Respondent.



*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts II and III (A)-(B).
              I. INTRODUCTION

       Following the denial of his evidence
suppression motion (Pen. Code, § 1538.5), defendant,
Arter Myles, pled no contest to two felonies.
Defendant pled no contest to charges of cocaine
possession while armed with a loaded operable semi-
automatic handgun and having a concealed firearm
in a vehicle. (Health & Saf. Code, § 11370.1, subd.
(a); Pen. Code, § 25400, subd. (a)(1).) Imposition of
sentence was suspended and defendant was placed on
formal probation for three years. On appeal,
defendant challenges the denial of his evidence
suppression motion. We affirm the order denying
defendant’s evidence suppression motion. But, we
modify the order granting probation with respect to
assessments under Penal Code section 1465.8,
subdivision (a)(1) and Government Code section
70373, subdivision (a)(1). In the published portion of
this opinion, we hold no Health and Safety Code
section 11372.5, subdivision (a)(1) criminal laboratory
analysis fee could be imposed.

          [Parts II and III (A)-(B) are deleted from
 publication. See post at page 7 where publication is
                      to resume.]




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       II. PROCEEDINGS IN THE TRIAL COURT

      Officer Patrick Lane testified at the
preliminary hearing. On August 15, 2014, at
approximately 8:30 p.m., Officer Lane and a partner,
identified only as Officer Fernandez, were on patrol
in a patrol car. They saw defendant and another
man. The two men were standing next to defendant’s
Toyota Prius in an apartment building parking lot.
The other man was drinking from a clear glass vodka
bottle. The parking lot was unfenced. It was readily
accessible to the public. There were no “private
property” signs. Defendant did not live in the
apartment building.
      After stepping out of his patrol car, Officer
Lane smelled burnt marijuana coming from the
Prius. Officer Lane explained that the suspected
public drinking first drew his attention. But the
reason he entered the parking lot was to conduct a
narcotics investigation. After ascertaining that the
Prius belonged to defendant, Officer Lane asked, “[Is
there] anything in the car that we need to know
about.” Defendant said he had a loaded, locked and
secured Smith and Wesson 9 millimeter handgun in
the trunk. Officer Fernandez searched the Prius.
Officer Fernandez found a clear baggie containing
2.94 grams of cocaine powder in the driver’s door
compartment. This was a usable amount of cocaine.
Officer Fernandez also found a loaded, operable,
semiautomatic 9 millimeter Smith and Wesson




                          3
handgun under the driver’s seat. There was a gun
box in the trunk. Officer Fernandez also discovered
two additional magazines containing live 9
millimeter rounds in the rear passenger
compartment.
      Defendant was advised of his rights pursuant
to Miranda v. Arizona (1966) 384 U.S. 436, 444-445.
Defendant admitted the gun was his. Defendant also
admitted purchasing the gun from a friend about a
week earlier. Defendant also admitted: he had not
yet registered the weapon; he knew that to be wrong;
he had purchased the weapon because the gun he
used for work had been stolen weeks prior; and he
had not yet filed a police report concerning the theft.
Defendant denied any knowledge of the cocaine.
      Defendant sought to suppress the evidence
found in the Prius. The trial court found the officers
properly entered the apartment building parking lot
to investigate suspected drinking in public and,
smelling marijuana, had further probable cause to
detain and investigate.




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                     III. DISCUSSION

           A. The Evidence Suppression Motion

       Defendant contends the officers had no
reasonable belief he had committed a public offense
in their presence because the drinking was occurring
on private property. Defendant’s argument hinges on
the question of whether the apartment building
parking lot was a private or a public place. We find it
was a public place. We apply the following standard
of review: “‘We defer to the trial court’s factual
findings, express or implied, where supported by
substantial evidence. In determining whether, on the
facts so found, the search or seizure was reasonable
under the Fourth Amendment, we exercise our
independent judgment.’ (People v. Glaser (1995) 11
Cal.4th 354, 362.)” (People v. Maury (2003) 30
Cal.4th 342, 384; accord, Robey v. Superior Court
(2013) 56 Cal.4th 1218, 1223.)
       As many courts have repeatedly held, an
unfenced apartment complex parking lot, visible from
the street and readily accessible to passersby, is a
public place. There was nothing that prevented
public access to the parking lot. (People v. Yarbrough
(2008) 169 Cal.App.4th 303, 319 [private residential
driveway exposed to general view and accessible to
the public without barrier]; People v. Chavez (2008)
161 Cal.App.4th 1493, 1500 [residential side gate, no
barrier to public access]; People v. Jimenez (1995) 33




                           5
Cal.App.4th 54, 60, 63 [unfenced residential driveway
readily accessible to the public]; In re Gregory S.
(1980) 112 Cal.App.3d 764, 775 [unenclosed
residential front yard and driveway adjacent to
public street]; People v. Olson (1971) 18 Cal.App.3d
592, 598 [residential front yard]; People v. Perez
(1976) 64 Cal.App.3d 297, 301 [unlocked, ungated
apartment hallway accessible to all]; People v. Green
(1971) 15 Cal.App.3d 766, 771 [hospital parking lot
accessible to public]; Cf. People v. Krohn (2007) 149
Cal.App.4th 1294, 1299 [courtyard of gated
apartment complex not a public place]; People v.
Strider (2009) 177 Cal.App.4th 1393, 1405 [fenced
yard not a public place]; People v. Davis (2006) 141
Cal.App.4th 519, 523 [private residence garage not a
public place]; People v. White (1991) 227 Cal.App.3d
886, 892 [fenced, gated residential yard guarded by
three dogs not a public place].) As the Court of
Appeal observed in People v. Krohn, supra, 149
Cal.App.4th at page 1298: “The term ‘public place’
generally means ‘a location readily accessible to all
those who wish to go there . . . .’ (People v. Perez[,
supra,] 64 Cal.App.3d [at p.] 301 . . . .) The key
consideration is whether a member of the public can
access the place ‘without challenge.’ (People v.
Olsen[, supra,] 18 Cal.App.3d [at p. ] 598.)” Nothing
prevented access to the apartment building parking
lot in the present case. Defendant’s evidence
suppression motion was properly denied.




                          6
       B. Court Facilities and Security Assessments

      A $30 court facilities assessment under
Government Code section 70373, subdivision (a)(1)
and a $40 court security assessment under Penal
Code section 1465.8, subdivision (a)(1) was imposed.
We asked the parties to brief the question whether,
because defendant was convicted of two felonies, the
assessments should have been in the amount of $60
and $80 respectively. The order granting probation
must be modified to so provide. (People v. Kim (2011)
193 Cal.App.4th 836, 842-843; People v. Woods (2010)
191 Cal.App.4th 269, 271-273; People v. Pacheco
(2010) 187 Cal.App.4th 1392, 1403, disapproved on
other points in People v. McCullough (2013) 56
Cal.4th 589, 599, and People v. Trujillo (2015) 60
Cal.4th 850, 858, fn. 5.)

      [The balance of the opinion is to be published.]

                C. Laboratory Analysis fee

       The trial court orally imposed a $50 crime lab
analysis fee. Presumably, the trial court was
imposing a Health and Safety Code section 11372.5,
subdivision (a) criminal laboratory analysis fee.
Health and Safety Code section 11372.5, subdivision
(a) states in part, “Every person who is convicted of a
violation of Section 11350, 11351, 11351.5, 11352,
11355, 11358, 11359, 11361, 11363, 11364, 11368,




                           7
11375, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391,
or 11550 or subdivision (a) or (c) of Section 11357, or
subdivision (a) of Section 11360 of this code, or
Section 4230 of the Business and Professions Code
shall pay a criminal laboratory analysis fee in the
amount of fifty dollars ($50) for each separate
offense.” The only offenses for which the criminal
laboratory analysis fee may be imposed are those
listed or enumerated in Health and Safety Code
section 11372.5, subdivision (a). (See People v. Vega
(2005) 130 Cal.App.4th 183, 193-194; People v. Dorsey
(1999) 75 Cal.App.4th 729, 732.) The only drug
offense defendant pled no contest to was a violation of
Health and Safety Code section 11370.1, subdivision
(a). But possession of a controlled substance while
armed with a firearm is not an enumerated crime
listed in Health and Safety Code section 11372.5,
subdivision (a). As a result, the trial court could not
impose the $50 criminal laboratory analysis fee. This
is a jurisdictional error which may be corrected for
the first time on appeal. (People v. Talibdeen (2002)
27 Cal.4th 1151, 1157 [failure to impose penalty
assessments on Health & Saf. Code, § 11372.5, subd.
(a) drug fee is a jurisdictional error]; People v.
Martinez (1998) 65 Cal.App.4th 1511, 1521 [same].)
We reverse the order imposing the criminal
laboratory analysis fee.




                           8
                          IV. DISPOSITION

            The order under review is modified to include a
      $60 court facilities assessment (Gov. Code, § 70373,
      subd. (a)(1)) and an $80 court operations assessment.
      (Pen. Code, § 1465.8, subd. (a)(1).) The order
      imposing a Health and Safety Code section 11372.5,
      subdivision (a) laboratory analysis fee is reversed.
      All other orders are affirmed.


            CERTIFIED FOR PARTIAL PUBLICATION*



                        TURNER, P.J.
      We concur:

      BAKER, J.



      KUMAR, J.




       Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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