Opinion
H043843
10-02-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL STERLING DAY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. F28717, F28743)
Defendant Michael Sterling Day was sentenced to state prison after pleading guilty to two counts of possessing methamphetamine for sale. For each conviction, the trial court imposed a Health and Safety Code section 11372.5 criminal laboratory analysis fee and associated penalty assessments. We affirmed defendant's convictions in a separate appeal after appellate counsel filed a brief citing People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant filed the instant appeal after the trial court denied his postjudgment request to strike the penalty assessments imposed on the Health and Safety Code section 11372.5 levy. (Pen. Code, § 1237.2.) Defendant argues that the $50 fee imposed under Health and Safety Code section 11372.5 is not punitive and therefore not subject to penalty assessments. We affirmed the judgment in this second appeal, and defendant petitioned for review. The Supreme Court has transferred the matter with instructions to consider our previous decision in this appeal in light of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). Consistent with Ruiz, we will again affirm the judgment.
I. TRIAL COURT PROCEEDINGS
Because the facts of defendant's convictions do not affect the issue raised in this appeal, we summarize only the procedural history of the case. Defendant was charged in two cases with a total of two counts of possessing methamphetamine for sale. (Health & Saf. Code, § 11378; unspecified statutory references are to this Code.) Each complaint alleged five prior prison terms (Pen. Code, § 667.5, subd. (b)) and one prior strike conviction (Pen. Code, § 667, subds. (b)-(i)).
Defendant pleaded guilty to the charges and admitted the special allegations. At sentencing, the trial court dismissed the prior strike conviction allegation (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and struck all but two of the prior prison term allegations. The court sentenced defendant to four years, eight months in state prison. For each case, the trial court imposed a $50 "Lab Fee" (citing § 11372.5, subd. (a)) and $155 in what we will refer to collectively as penalty assessments.
Defendant appealed his sentence (case number H043232). While that appeal was pending, defendant's appellate counsel asked the trial court to strike the penalty assessments imposed on the $50 section 11372.5 levy. After the trial court denied that request, defendant filed a new notice of appeal, which led to the instant case (number H043843). After filing the second notice of appeal, defendant's appellate counsel filed a Wende brief in case number H043232, but did not reference the second appeal in that brief. We filed an opinion in case number H043232, affirming the judgment after finding no arguable issues. (People v. Day (Dec. 20, 2016, H043232).)
II. DISCUSSION
A. TIMELINESS AND FORFEITURE
The People argue we "impliedly considered and rejected" defendant's argument about section 11372.5 when we affirmed the judgment in case number H043232. The People suggest that by filing a Wende brief in case number H043232 after learning that the trial court had denied the request to strike the penalty assessments, defendant forfeited any challenge to those assessments.
Defendant responds that his argument about section 11372.5 is separately appealable under Penal Code section 1237.2, which provides: "An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, [etc.] ... unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing." Defendant argues he had to separately file and prosecute the issue to prevent the risk of forfeiture. He compares the instant procedural posture to an appeal from a postjudgment order awarding victim restitution, noting that a defendant must separately appeal such a postjudgment order. (Citing People v. Denham (2014) 222 Cal.App.4th 1210, 1214.)
Defendant prudently filed a separate notice of appeal to preserve the section 11372.5 issue. But he risked forfeiting that issue by not requesting consolidation of this case with his initial appeal (or at least mentioning the section 11372.5 issue in his Wende brief). We will nonetheless consider the merits of the issue because this second appeal is timely and we did not expressly decide the issue in our previous opinion.
B. PENALTY ASSESSMENTS APPLY TO SECTION 11372.5 FEES
The Supreme Court's reasoning in Ruiz forecloses the argument defendant raised in his original briefing in this appeal, and he has not filed a supplemental brief after the case was transferred from the Supreme Court.
In Ruiz, the defendant pleaded no contest to conspiring to transport a controlled substance (§ 11379, subd. (a)). (Ruiz, supra, 4 Cal.5th at p. 1104.) As part of his sentence, the trial court imposed a criminal laboratory analysis fee (§ 11372.5, subd. (a)) and a drug program fee (§ 11372.7, subd. (a)). Ruiz argued that the trial court could not impose those fees because they applied only to certain drug crimes and he was convicted merely of conspiring to violate one of those enumerated crimes. (Ruiz, at p. 1105.) The Supreme Court focused on Penal Code section 182, subdivision (a), "which states in relevant part that persons convicted of conspiring to commit a felony 'shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony.' " (Ruiz, at p. 1105.) The court identified the dispositive issue as whether the fees at issue constituted punishment such that they would be "part of 'the punishment' 'provided for' the underlying target felony." (Id. at p. 1107.) The court analyzed the statutory language, reviewed relevant legislative history, and concluded "it is clear the Legislature intended the fees at issue here to be punishment." (Id. at p. 1122.) As relevant here, the Ruiz court also disapproved a line of appellate decisions which found the fees at issue did not constitute punishment and therefore were not subject to penalty assessments, stating those decisions "broke with settled law holding to the contrary." (Id. at p. 1112, fn. 5, disapproving People v. Watts (2016) 2 Cal.App.5th 223, 226.)
Defendant argued in his original briefing that the section 11372.5 fee was not punishment and therefore not subject to penalty assessments (e.g., Pen. Code, § 1464, subd. (a)(1)). Ruiz disapproved the decisions defendant cited in his original briefing and unequivocally determined that the section 11372.5 fee is punishment subject to penalty assessments. (Ruiz, supra, 4 Cal.5th at p. 1122.) Consistent with Ruiz (and our original opinion in this case), we confirm that the trial court did not err in imposing penalty assessments on the section 11372.5 fee.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Danner, J.