Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Super. Ct. No. 07CM1356
Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Cornell, J. and Hill, J.
OPINION
Appellant pled guilty to one felony count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). A misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) was dismissed. Appellant was sentenced to the middle term of two years in prison, and ordered to pay various fines and fees, detailed below. Appellant contends some of the fines and fees were improperly imposed and constituted an unauthorized sentence; specifically, he contends penalty assessments and surcharges were improperly imposed based on the restitution fine and the laboratory analysis fee. We affirm.
DISCUSSION
In addition to the prison sentence, the court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a suspended $200 parole revocation fee (Pen. Code, § 1202.45), a $20 court security fee (Pen. Code, § 1465.8), a total laboratory fee of $180, including penalty assessments, and a total penal fine of $720, including penalty assessments. Appellant challenges the penalty assessments and surcharges included in the total laboratory fee and the total penal fine.
I. Penal Fine
At sentencing, after the court imposed the restitution fine, parole revocation fine, and court security fee, appellant “waive[d] a recitation of the breakdown of fines and penalty assessments.” The court then imposed a “total penal fine of $720.” Appellant assumes this amount was calculated as set out in the probation report: a $200 fine, plus a state penalty assessment of $200 (Pen. Code, § 1464), a 20 percent state surcharge of $40 (Pen. Code, § 1465.7), a county penalty assessment of $140 (Gov. Code, § 76000), a court construction penalty assessment of $100 (Gov. Code, § 70372), a DNA funding penalty assessment of $20 (Gov. Code, § 76104.6), and a state DNA funding penalty assessment of $20 (Gov. Code, § 76104.7).
In a footnote, appellant asserts that Health and Safety Code section 11377 does not provide for a penal fine; from this he concludes the penalty assessments and surcharges must have been based on the $200 restitution fine. Penal Code section 1202.4, subdivision (e), however, expressly provides that “[t]he restitution fine shall not be subject to penalty assessments authorized in Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, or the state surcharge authorized in Section 1465.7.” Therefore, he concludes, the penalty assessments and surcharges may not attach to the restitution fine, and they were unauthorized and should be corrected.
Although Health and Safety Code section 11377 does not provide for imposition of a penal fine for a violation of that section, Penal Code section 672 does authorize such a fine. It provides: “Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.” (Pen. Code, § 672.) Penal Code section 672 “is a catchall provision allowing a fine to be imposed for every crime, even if the statute criminalizing the conduct did not specifically authorize a fine.” (People v. Breazell (2002) 104 Cal.App.4th 298, 304.) A fine may be imposed pursuant to Penal Code section 672 for a violation of Health and Safety Code section 11377. (People v. Clark (1992) 7 Cal.App.4th 1041, 1046.)
The record does not support appellant’s assertion that the penalty assessments and surcharges were attached to the restitution fine, rather than to a separate penal fine. The court first imposed a $200 restitution fine, then later separately imposed a “total penal fine of $720,” including penalty assessments. By appellant’s own reckoning, the $720 amount included a $200 base fine amount, plus $520 in penalty assessments and surcharges. The base fine could not have been the restitution fine, unless the court imposed that fine twice. There is no support for such a conclusion in the record. There was no error in imposing the “total penal fine of $720.”
II. Laboratory Fee
The court imposed a “total laboratory fee of $180.” Appellant asserts that the laboratory fee was not subject to penalty assessments and surcharges, and those charges should be stricken. Under Health and Safety Code section 11372.5, “[e]very person who is convicted of a violation of Section … 11377 … of this code … shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.”
Adding to the $50 amount a state penalty assessment of $50 (Pen. Code, § 1464), a 20 percent surcharge of $10 (Pen. Code, § 1465.7), a county penalty assessment of $35 (Gov. Code, § 76000), a court construction assessment of $25 (Gov. Code, § 70372), a DNA funding penalty assessment of $5 (Gov. Code, § 76104.6), and a state DNA funding penalty assessment of $5 (Gov. Code, § 76104.7), results in a total laboratory analysis fee of $180.
In People v. Talibdeen (2002) 27 Cal.4th 1151, the court held that the state and county penalty assessments were mandatory and were required to be added to the laboratory analysis fee; the trial court had no discretion to omit them, unless defendant was “‘in prison until the fine [was] satisfied.’” (Id. at p. 1154.) Appellant acknowledges the Talibdeen decision, but argues that it “is not controlling,” citing People v. Vega (2005) 130 Cal.App.4th 183.
In Vega, however, defendants were convicted of conspiracy to transport cocaine, and the issue was whether the laboratory analysis fee could be imposed on them for a conviction of that offense. The laboratory analysis fee statute applied to persons convicted of transporting cocaine, but did not mention conspiracy to transport cocaine. (People v. Vega, supra, 130 Cal.App.4th at p. 194.) Penal Code section 182 provided that persons convicted of conspiracy to commit a felony “‘shall be punished in the same manner and to the same extent as is provided for the punishment of that felony.’” (People v. Vega, supra, at p. 194.) The issue the Vega court analyzed was whether the laboratory analysis fee constituted “punishment,” so that a person convicted of conspiracy to transport cocaine would be subject to the fee as was a person who was convicted of transporting cocaine. The court noted: “Talibdeen is not controlling, however, because the court did not address the question whether the laboratory analysis fee was a punishment.” The Vega court concluded the fee was not “punishment,” and defendants were not subject to the laboratory analysis fee. (People v. Vega, supra, at p. 195.)
The issue in this case is not whether the laboratory analysis fee applies to appellant’s offense or whether the fee is a punishment under Penal Code section 182. Rather, the issue is the same issue decided by the Talibdeen court: whether penalty assessments and surcharges must be added to the laboratory analysis fee. Talibdeen concluded they must, and this court is bound by that decision. The trial court properly imposed the laboratory analysis fee, including penalty assessments and surcharges.
DISPOSITION
The judgment is affirmed.