Opinion
F075950
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL ELI CABRERA, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF336203A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and Ellison, J.†
-ooOoo-
Defendant Samuel Eli Cabrera contends on appeal that the penalty assessment attached to his laboratory fee imposed pursuant to Health & Safety Code section 11372.5 (lab fee) was unauthorized. We affirm.
All statutory references are to the Health and Safety Code unless otherwise noted.
Section 11372.5, subdivision (a) provides: "Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 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 court shall increase the total fine necessary to include this increment. [¶] With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law."
PROCEDURAL SUMMARY
On March 29, 2017, defendant pled no contest to two counts of robbery (Pen. Code, § 211), burglary (Pen. Code, § 459), and misdemeanor possession of methamphetamine (§ 11377, subd. (a)). He admitted having suffered a prior felony conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and having served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
On June 23, 2017, the trial court imposed the agreed-upon 11-year term and imposed various fines and fees, including a $50 lab fee pursuant to section 11372.5, plus a penalty assessment.
On September 9, 2017, defense counsel wrote the trial court, asserting that the penalty assessment attached to the lab fee was unauthorized and should not have been imposed. On October 2, 2017, the trial court denied the request.
DISCUSSION
Defendant contends the penalty assessment attached to the lab fee must be stricken because the lab fee is not punitive and thus not subject to the assessment. After briefing was submitted by the parties, the Supreme Court resolved this issue.
Penalty assessments apply to any "fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses" and increase such fines, penalties, or forfeitures by a specified amount. (E.g., Pen. Code, § 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).) In the recent case of People v. Ruiz (2018) 4 Cal.5th 1100, the Supreme Court held that the lab fee imposed pursuant to section 11372.5 constitutes punishment. (Ruiz, at pp. 40-41.) Accordingly, it is subject to penalty assessments.
DISPOSITION
The judgment is affirmed.
† Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.