Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct.No. RIF131290, Helios (Joe) Hernandez, Judge.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Pursuant to a plea agreement, defendant pled guilty to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) In return, the remaining allegation was dismissed, and defendant was placed on formal probation for three years on various terms and conditions, including paying some fines and fees. On appeal, defendant contends the $283 laboratory analysis fee imposed under Health and Safety Code section 11372.5, subdivision (a) is unauthorized and must be modified. The People agree that a mathematical error occurred in the calculation of the fee but differ in their calculation of the fee. The People also request correction of a separate and additional $283 drug program fee, which was imposed under Health and Safety Code section 11372.7, subdivision (a). For the reasons stated below, we modify the laboratory analysis fee from $283 to $163 and reject the People’s request to modify the drug program fee.
I
The details of defendant’s criminal conduct are not relevant to the issues he raises in this appeal and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.
Pursuant to the negotiated plea agreement, the probationary conditions set forth in the sentencing memorandum included the following fees and fines: $110 in booking fees (Gov. Code, § 29550); a $100 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a suspended $100 probation revocation fine (Pen. Code, § 1202.44); a $20 court security fee (Pen. Code, § 1465.8); attorney fees in the amount of $96 (Pen. Code, § 987.8); a $283 laboratory analysis fee (Health & Saf. Code, § 11372.5); and a $283 drug program fee (Health & Saf. Code, § 11372.7).
A. Health and Safety Code Section 11372.5 Laboratory Analysis Fee
Health and Safety Code section 11372.5, subdivision (a) requires the court to impose a “criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense [specified therein].” Defendant’s conviction under Health and Safety Code section 11377 is among the specified offenses. The $50 laboratory analysis fee is mandatory and is subject to the penalty assessments provided by Penal Code section 1464 and Government Code section 76000, which are likewise mandatory. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522.)
The court here imposed a laboratory fee under Health and Safety Code section 11372.5 of $283, including penalty assessments. Although there is no evidence in the record to show how the court arrived at this figure, we assume that the court imposed the mandatory $50 laboratory fee plus $233 in penalty assessments. The parties differ on the calculation of this assessment. Defendant claims the total laboratory fee including the applicable penalty assessments should be $158. The People claim that the total laboratory fee including the assessments should be $180.
The $50 mandatory laboratory fee, in turn, was subject to a state penalty assessment under Penal Code section 1464 of $50; a county penalty assessment under Government Code section 76000 of $35; and an additional $10, which represents a 20 percent “state surcharge” under Penal Code section 1465.7, which “shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of [Penal Code s]ection 1464.” (Pen. Code, § 1465.7, subd. (a).)
The parties agree with the following: (1) a $50 laboratory fee under Health and Safety Code section 11372.5; (2) a $50 assessment under Penal Code section 1464; (3) a $10 state surcharge under Penal Code section 1465.7; and (4) a $35 county penalty assessment under Government Code section 76000. However, the parties differ on the calculation of the penalty under Government Code section 70372.
Government Code section 70372 imposes a state court construction penalty fee. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1254 (McCoy).) As explained in McCoy, a state court construction penalty of $5 for every $10 collected on the $50 crime laboratory fee, i.e., $25, should be assessed. As also explained in McCoy, however, that $25 court construction fee should be reduced under Government Code section 70375, subdivision (b). (McCoy, at pp. 1252-1254.) That section “requires that the $5 court construction penalty be reduced by the amount the local board of supervisors directs be paid from the [Government Code] section 76000, subdivision (a) penalty assessment into the [Government Code] section 76100 local courthouse construction fund. As noted, the Los Angeles County Board of Supervisors has directed that $2 of the [Government Code] section 76000, subdivision (a) penalty assessment be paid into the [Government Code] section 76000 local courthouse construction fund. Therefore, in Los Angeles County, every convicted felon must pay on a Health and Safety Code section 11372.5, subdivision (a) laboratory fee a $3 state court construction penalty on every $10 of the fee, which is statutorily designated as a fine.” (McCoy, at p. 1254.)
Government Code section 70372, subdivision (a)(1), provides: “Except as otherwise provided in subdivision (b) of [Government Code s]ection 70375 and in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including, but not limited to, all offenses involving a violation of a section of the Fish and Game Code, the Health and Safety Code, or the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. This penalty is in addition to any other state or local penalty, including, but not limited to, the penalty provided by [s]ection 1464 of the Penal Code and [Government Code s]ection 76000.”
Government Code section 70375, subdivision (b), identifies circumstances where the $5 state court construction penalty on every $10 of a fine is reduced: “(b) In each county, the . . . amount authorized by [Government Code s]ection 70372 shall be reduced by the following: [¶] (1) The amount collected for deposit into the local courthouse construction fund established pursuant to [Government Code s]ection 76100. . . . [¶] (2) The amount collected for transmission to the state for inclusion in the Transitional State Court Facilities Construction Fund established pursuant to [Government Code s]ection 70401 to the extent it is funded by money from the local courthouse construction fund.”
As pointed out by defendant, the amount collected by each county for deposit into the local courthouse construction fund established under Government Code section 76100 can be determined from the table included in Government Code section 76000, subdivision (e). That table specifies for each county that amount of the penalty assessment of $7 on $10 of every fine the local board of supervisors has allocated for purposes other than courthouse construction. (Gov. Code, § 76000, subd. (e); see also McCoy, supra, 156 Cal.App.4th at p. 1254.) In Riverside County, the amount is $4.60. (Gov. Code, § 76000.) The difference obtained by subtracting $4.60 from $7.00 is $2.40, the amount collected by Riverside County for deposit into the local courthouse construction fund established under Government Code section 76100. (McCoy, at p. 1254.) This difference, $2.40, reduces the rate of the state court construction penalty in Riverside County from $5 per $10 of the fine to $2.60 per $10 of the fine. (Ibid.) Hence, defendant is correct in that the state court construction penalty applicable to a $50 laboratory fee is five times $2.60, or $13.
Government Code section 76000, subdivision (e), provides: “The seven-dollar ($7) additional penalty authorized by subdivision (a) shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by [Government Code s]ection 76100 as of January 1, 1998, when the money in that fund is transferred to the state under [Government Code s]ection 70402.”
In addition, as pointed out by the People and acknowledged by defendant in his reply brief, a $5 DNA assessment should have been imposed under Government Code section 76104.6. We also agree. (See Gov. Code, § 76104.6.)
In relevant part, Government Code section 76104.6 provides that for the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of $1 for every $10, or fraction thereof, in each county, which shall be collected together with and in the same manner as the amounts established by Penal Code section 1464, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses. (Gov. Code, § 76104.6, subd. (a)(1), (a)(2).)
The People also argue that a second state-only DNA assessment of $5 under section 76104.7 of the Government Code should have been imposed. Defendant replies that imposition of this second state-only DNA assessment is unauthorized, as it would violate the federal and state constitutional rules against ex post facto laws. We are inclined to agree with defendant. Government Code section 76104.7 became effective on July 12, 2006, a mere five days after defendant committed his drug offense. (Gov. Code, § 76104.7, added by Stats. 2006, ch. 69, § 18, amended by Stats. 2007, ch. 302, § 8, eff. Jan. 1, 2008.) This DNA penalty assessment has been held to be punitive and subject to the ex post facto clause with respect to offenses committed prior to its effective date. (People v. Batman (2008) 159 Cal.App.4th 587, 591.) The DNA penalty assessment cannot be applied in this case.
Accordingly, based on the foregoing, the amount of the laboratory fee plus penalty assessments authorized by applicable statutes is $163, not $283 as was imposed here. The laboratory fee and the applicable penalty assessments are calculated as follows: a $50 laboratory fee under Health and Safety Code section 11372.5; a $50 assessment under Penal Code section 1464; a $10 state surcharge under Penal Code section 1465.7; a $35 county penalty assessment under Government Code section 76000; a $13 state court construction penalty under Government Code section 70372; and a $5 DNA assessment under Government Code section 76104.6.
B. Health and Safety Code Section 11372.7 Drug Program Fee
The People argue that the drug program fee should be increased from $283 to $504 by applying the same statutory formulas as those used to calculate the laboratory fee. Defendant replies that the People waived this issue, and in the alternative, the People’s claim fails on the merits, as the statute gives the court discretion to set the drug program fee.
Health and Safety Code section 11372.7, subdivision (a), requires the court to impose “a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense.” Defendant’s conviction under Health and Safety Code section 11377 authorized the court to impose a drug program fee and penalty assessments under Health and Safety Code section 11372.7.
Health and Safety Code section 11372.7, subdivision (a), states in relevant part: “[E]ach person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law.”
Assuming, without deciding, that this issue is properly before this court, we find that there was no error in the imposition of the drug program fee in the amount of $283. In People v. Martinez (1998) 65 Cal.App.4th 1511, an appellate court determined that “a trial court may, without expressly so stating, and taking into account any fine or restitution amount imposed, conclude that a defendant does not have the ability to pay a drug program fee. . . . [O]n a silent record, we presume the trial court resolved those issues in favor of not imposing the fee. [Citations.]” (Id. at p. 1517; see also People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414, fn. 2 [“‘[w]e presume the trial court found an inability to pay, because the trial court is not required to state such a finding on the record; therefore, the prosecutor’s failure to object to omission of the [drug program] fee waives the People’s claim of error on appeal’”].) In this same vein, we must presume the trial court properly resolved the issue of ability to pay in favor of imposing the fee and associated penalty assessments in the amount of $283, rather than $504. Health and Safety Code section 11372.7, subdivision (b), directs the trial court to consider the defendant’s financial ability to pay and, having done so, “set the amount to be paid.” (Health & Saf. Code, § 11372.7, subd. (b).) Here, setting the drug program fee in the amount of $283, including the penalty assessments, was within the trial court’s discretion.
In regard to the drug program fee, the court’s minute order of the sentencing hearing states: “Pay total of $283.00, includes a fine/fee and assessment pursuant to 11372.7 HS . . . .” (Italics added.)
II
DISPOSITION
The judgment is modified to reduce the laboratory fee and associated penalty assessments under Health and Safety Code section 11372.5 from $283 to $163 in accordance with this opinion. As modified, the judgment is affirmed.
We concur: RAMIREZ P.J., MILLER J.
Government Code section 70372, subdivision (b), states: “In addition to the penalty provided by subdivision (a) [of Government Code section 70372], for every parking offense where a parking penalty, fine, or forfeiture is imposed, an added state court construction penalty of one dollar and fifty cents ($1.50) shall be included in the total penalty, fine, or forfeiture. These mon[ies] shall be taken from fines and forfeitures deposited with the county treasurer prior to any division pursuant to [s]ection[s] 1462.3 or 1463.009 of the Penal Code. In those cities, districts, or other issuing agencies which elect to accept parking penalties, and otherwise process parking violations pursuant to [a]rticle 3 (commencing with [s]ection 40200) of [c]hapter 1 of [d]ivision 17 of the Vehicle Code, that city, district, or issuing agency shall observe the increased bail amounts as established by the court reflecting the added penalty provided for by this section. Each agency which elects to process parking violations shall pay to the county treasurer one dollar and fifty cents ($1.50) for the parking penalty imposed by this section for each violation which is not filed in court. Those payments to the county treasurer shall be made monthly, and the county treasurer shall transmit these sums as provided in subdivision (f).”
Health and Safety Code section 11372.7, subdivision (b), states in relevant part: “The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. . . . If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee.”