Opinion
C082029
08-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE AUDEL CARDENAS, Defendant and Appellant.
MODIFICATION OF OPINION UPON DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on August 30, 2017, be modified as follows:
1. On page 23, the second sentence of the Disposition paragraph should be deleted and replaced with a sentence reading:
The judgment is modified to impose and stay (Pen. Code, § 654) a second $50 crime lab fee and appropriate penalty assessments.
The Disposition paragraph shall now read:
Counts 3 and 4 are reversed. The judgment is modified to impose and stay (Pen. Code, § 654) a second $50 crime lab fee and appropriate penalty assessments. As modified, the judgment is affirmed. The trial court is directed to prepare a new probation order to reflect these modifications to the judgment.
This modification does not change the judgment. FOR THE COURT: /s/_________
Hull, Acting P. J. /s/_________
Robie, J. /s/_________
Duarte, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF140000665)
Defendant Jose Audel Cardenas allowed a non-resident acquaintance to grow marijuana on his property. Both defendant and his housemate had medical marijuana recommendations from a physician, but defendant failed to establish the marijuana grown on the property was for medical use. After a short court trial, the trial court found defendant guilty of cultivating marijuana (Health & Saf. Code, § 11358), possession of marijuana for sale (§ 11359), attempted transportation of marijuana (§ 11360, subd. (a)), and maintaining a place for the purpose of selling, giving away, or using marijuana (§ 11366). The court placed defendant on probation for three years and imposed various fines and fees, including a single $50 criminal laboratory analysis fee with an attached $150 penalty assessment. (§ 11372.5.)
Further undesignated statutory references are to the Health and Safety Code.
On appeal, defendant launches a broad and lengthy attack on his convictions. Asserting that he had a viable medical marijuana defense to the charges, he contends California's medical marijuana laws are unconstitutionally vague, insufficient evidence supports the convictions, the trial court misunderstood the law, defense counsel was ineffective, and the penalty assessment on the criminal laboratory analysis fee was unauthorized. In a supplemental brief, defendant contends he is entitled to relief under Proposition 64, claiming he should receive a new trial or his convictions should be reduced to misdemeanors.
Because defendant failed to assert a viable medical marijuana defense, many of his contentions fail. We do find merit in two of his contentions: that insufficient evidence supports his convictions for attempted transportation of marijuana (§ 11360, subd. (a)--count 3) and maintaining a place for it (§ 11366--count 4). We reverse counts 3 and 4 for insufficient evidence and modify the judgment accordingly, and also modify the judgment to add another $50 fee (and appropriate penalty assessments) for the remaining count of conviction, as we explain post. We order preparation of a new probation order to reflect these modifications to the judgment, and affirm the judgment as modified.
FACTS
Defendant leased property in Olivehurst. He had a financial arrangement with Fabian Lemus to allow Lemus to grow marijuana on the property. In exchange, defendant was to receive $2,000, although he had not yet received any money as of the date of his arrest.
A month before his arrest, defendant called law enforcement for a compliance check. When officers came out, they found 94 marijuana plants. There were four medical marijuana recommendations posted inside the garden. They were in the names of defendant, his housemate Linda Mitchell, Pedro Bautista, and Edwin Garcia. Defendant recognized Garcia's name, but not Bautista's. An officer told defendant to "get code enforcement," although the record is silent as to the meaning of this command (or recommendation). The officer did not know if defendant followed through with code enforcement or whether code enforcement sent a letter to the owner of the property.
Defendant's briefing claims Mitchell was his caretaker. The record does not support this assertion. Mitchell testified only that she lived in the same house.
On July 31, 2014, officers served a search warrant on the property. Officers found 85 plants in a marijuana garden surrounded by a six- to eight-foot wooden fence. The plants were in various stages of growth; some were only a month from harvest. Two medical marijuana recommendations were posted in the garden, in the names of defendant and Mitchell.
Mitchell testified she got the recommendation after a compliance check; the officer had told her she needed it for her protection. Lemus gave her the doctor's number and paid for both recommendations. Mitchell did not use marijuana and had no medical need for it. She had never seen defendant use marijuana.
Defendant told the officer that Garcia was to sign a rental agreement for the marijuana grow but had not. Defendant did not use marijuana but hoped to make some edibles that year. He claimed Lemus was to take all the marijuana when harvested and insisted he did not know how much of the marijuana was his. His landlord had told him to take down the other two medical marijuana recommendations--Garcia's and Bautista's.
Deputy Brandon Spear testified as an expert on Proposition 215 compliance, and the sales and transportation of marijuana. He testified the typical outdoor marijuana plant produces one to two pounds of marijuana, with a value of $1,000 to $2,000 per pound. In his opinion, the marijuana on defendant's property was possessed for sale, not for personal medical reasons. As we discuss at greater length post, he stated that 85 plants "can be" a usable amount. He also testified, over objection, that a hypothetical based on the facts of this case showed a violation of sections 11360 (transporting), 11366 (maintaining a place), 11358 (cultivation), and 11359 (possession for sale).
Defendant testified in his defense only as to his water bill. The water bill for the property was $600 to $700 a month before the marijuana grow was established, but increased to $2,000 after. On cross-examination, defendant testified he was going to rent the parcel for $2,000 total even though he was incurring a $2,000 water bill monthly. He then testified that Lemus was going to pay the increased amount of the water bill.
In closing argument, defense counsel urged that defendant had nothing to do with the garden. She suggested the garden may have been legal--"we don't know that it's not"--because there was no follow up on the two recommendations for medical marijuana, which had been taken down by the time the warrant was served. She argued there was no evidence of sales or transportation.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends there is insufficient evidence to sustain any of the counts of conviction. He contends, in large part due to the alleged vagueness of the medical marijuana laws, that there is insufficient evidence he had the requisite criminal intent for any of the offenses. He also contends there is insufficient evidence of various other elements of the offenses.
We consider the elements of the offenses as they existed at the time of their alleged commission and defendant's conviction. The effect of recent changes to the marijuana laws by Proposition 64 is discussed in part V, post.
A. Standard of Review
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) In reviewing sufficiency of the evidence, we "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Lewis (1990) 50 Cal.3d 262, 277.)
B. Section 11358: Cultivation of Marijuana
The elements of cultivating marijuana are that defendant cultivated one or more marijuana plants and knew that the substance he cultivated was marijuana. (CALCRIM No. 2370.) Here, there was no evidence that defendant actually cultivated the marijuana; Mitchell had never seen him in the garden. However, a person can be guilty of a crime as a perpetrator or as an aider and abettor. (Pen. Code, § 31.) "An aider and abettor is one who acts 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.]" (People v. Chiu (2014) 59 Cal.4th 155, 161.)
There was sufficient evidence defendant aided and abetted the cultivation of marijuana. He offered his land for that purpose in exchange for money and knew the substance grown was marijuana.
Defendant contends there was insufficient evidence of his criminal intent, arguing that he did not intend to break the law. He argues his call for a compliance check showed that he intended to comply with the law. He argues, at length, that the medical marijuana laws of California, and specifically of Yuba County, were unconstitutionally vague at the time of his arrest. He asserts a reasonable person would not have known how many marijuana plants could legally be grown for medical purposes.
"The Compassionate Use Act of 1996 (the CUA) ensures that Californians who obtain and use marijuana for specified medical purposes upon the recommendation of a physician are not subject to certain criminal sanctions. ([] § 11362.5.) Specifically, the CUA provides an affirmative defense to the crimes of possessing marijuana (§ 11357) and cultivating marijuana (§ 11358) for physician-approved personal medical purposes. (§ 11362.5, subd. (d).)" (People v. Wright (2006) 40 Cal.4th 81, 84, fn. omitted.) The Legislature then enacted the Medical Marijuana Program Act (section 11362.7 et seq.) (MMP), which addressed "issues not included in the CUA so as to promote the fair and orderly implementation of the CUA." (Wright, at p. 84.) The MMP provides a new affirmative defense to collective cultivation of marijuana, and expands the defense to penal sections not identified by the CUA. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 786.) The affirmative defenses offered by the CUA and the MMP apply only where the marijuana is used for medical purposes.
Defendant's reliance on a medical marijuana defense fails. Although he focuses his argument on the number of plants grown, the weaker point in his claimed defense is the lack of any evidence of the purpose for which the plants were grown. At the time of the search, there was no evidence the marijuana was being grown for any medical purpose. Although defendant and Mitchell had obtained medical marijuana recommendations, there was no evidence that either even used the marijuana at issue, let alone that they used it for any medical reason. Defendant told Deputy Spear that Lemus was going to take all the marijuana when harvested. Defendant offered no evidence that Lemus had a medical marijuana recommendation, was part of a legal collective or cooperative, or intended the marijuana be used medically. Although defendant asserts that "there was no evidence that Mr. Lemus was unlawfully growing marijuana or that Mr. Cardenas knew this fact to be true," he misunderstands the nature of the defense offered by the medical marijuana laws. Medicinal use is an affirmative defense, and the burden is on defendant to raise a reasonable doubt as to his guilt. (People v. Mower (2002) 28 Cal.4th 457, 477-483.)
Regardless of the number of marijuana plants grown, defendant would still have been convicted of cultivation of marijuana. Consequently, there is no need for any constitutional analysis with respect to the vagueness of the medical marijuana laws. A reviewing court does not reach constitutional questions unless absolutely required to do so to dispose of the matter before it. (People v. Duarte (2000) 24 Cal.4th 603, 610.)
C. Section 11359: Possession for Sale
In general, unlawful possession of marijuana for sale requires proof that the defendant possessed the marijuana with the intent of selling it and with knowledge of both its presence and its illegal character. (§ 11359; People v. Harris (2000) 83 Cal.App.4th 371, 374.) The elements of the offense are: (1) the defendant exercised dominion and control over the marijuana; (2) the defendant was aware he or she was in possession of marijuana; (3) the defendant knew the nature or character of marijuana as a controlled substance; (4) the marijuana was in an amount sufficient to be used for sale or consumption as a controlled substance; and (5) the defendant possessed the marijuana with the specific intent to sell it. (CALCRIM No. 2352; cf. People v. Parra (1999) 70 Cal.App.4th 222, 225-226 [elements of possession of a controlled substance for sale].) The offense "can be established by circumstantial evidence and any reasonable inferences drawn from that evidence." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
Defendant contends there is insufficient evidence he possessed the marijuana for sale. He contends there was no evidence that he possessed a usable amount, relying on Spear's testimony that 85 plants "can be" a usable amount. He argues this testimony is not sufficiently definitive to permit the conclusion that the 85 plants constituted a usable amount. He points out that the plants were a month away from maturity and something could have happened to them before they were harvested, presumably rendering them useless rather than usable.
Although when considered out of context, Spear's answer ("It can be") may seem insufficient to prove a useable amount, when viewed in context it is clear that the evidence was sufficient. The prosecutor had asked Spear a string of leading questions clearly designed to establish the elements of possession for sale and disprove an affirmative medical defense. The question that produced the answer at issue was: "Okay. Now, I know this is kind of silly, but in your opinion 85 plants is a useable amount, right?" Spear answered, "It can be." The prosecutor replied: "Okay. Just one of those questions you have to ask" and then launched into another question about possession of medical marijuana.
Although the record certainly should have been clarified after this apparently lighthearted exchange, because jokes and sarcasm do not translate well when read from a cold record, taken in context and when combined with Spear's prior testimony the evidence of usable amount was sufficient. Spear had previously testified that an outdoor marijuana plant typically produces one to two pounds of marijuana, and that the value of marijuana was $1,000 to $2,000 per pound. Thus, the garden had potentially 85 to 170 pounds of marijuana, worth $85,000 to $340,000. This evidence of potential production and value of the garden, combined with the prosecutor's reference to the question as "kind of silly" indicates Spear's answer "[i]t can be" was meant to be amusing or sarcastic--or both--rather than conditional.
Further, the requirement of a "usable amount" is an amount usable for "consumption or sale." (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) Although the marijuana plants at issue may not yet have been ready for consumption at the time of the search, they could have been sold. To establish a usable quantity of marijuana, the People need not prove a sufficient quantity to produce a narcotic effect. (People v. Pohle (1971) 20 Cal.App.3d 78, 81.) The possession of seeds, which contain no resin, is sufficient because the seeds are "usable" for sale. (Ibid.) It cannot be seriously contended that 85 marijuana plants, with a value in the many thousands of dollars, are not usable for sale. (See, e.g., People v. Hughes (2012) 202 Cal.App.4th 1473, 1476 [possession of 38 small marijuana plants of six to eight inches in height was for sale].)
Sufficient evidence supports the conviction for possession of marijuana for sale.
D. Section 11360, Subdivision (a): Transportation of Marijuana
Subdivision (a) of section 11360 provides: "Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished . . . ." "Transport" means "to transport for sale." (§ 11360, subd. (c).)
As defendant argues in his opening brief, there is no evidence that he personally transported marijuana. The statute, however, also prohibits attempted transportation, which the People argue was proven. A criminal attempt occurs when there is a specific intent to commit the crime and a direct but ineffectual act done toward its commission. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1192, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192.) "The overt act element of attempt requires conduct that goes beyond 'mere preparation' and 'show[s] that [defendant] is putting his or her plan into action.' [Citations.]" (People v. Watkins (2012) 55 Cal.4th 999, 1021.) " 'The preparation consists of devising or arranging the means or measures necessary for the commission of the offense, while the attempt is the direct movement toward its commission after the preparations are made. In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. [Citations.]' [Citation.]" (People v. Memro (1985) 38 Cal.3d 658, 698] overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172.) An attempt requires that " 'some appreciable fragment of the crime' " has been accomplished. (Ibid.)
Defendant contends there is no evidence of his intent to transport the marijuana and no evidence that Lemus would transport the marijuana off the property. Further, defendant argues the information alleged the offense occurred on or about July 31, 2014, and there was no evidence that he aided or abetted an attempt to transport marijuana on or near this date.
The People argue "[t]he trial court could reasonably infer that appellant's involvement with Lemus in the building and maintaining of the marijuana garden, combined with appellant's knowledge that he would receive none of the marijuana and that Lemus would come and take the entire harvest, constituted a direct but ultimately ineffectual step towards transporting the marijuana out of the garden via Lemus." But the evidence does not adequately support this inference. At best, this evidence shows that defendant had a plan, with Lemus, to transport the marijuana eventually. Evidence of a plan alone is insufficient to establish an attempt to transport, as a plan is a step removed from preparation, and preparation is insufficient to establish attempt. (People v. Watkins, supra, 55 Cal.4th at p. 1021.). The evidence reveals no direct step toward putting that plan into action. There is not even evidence of any preparation for transporting marijuana. Thus we agree with defendant that there is insufficient evidence of attempted transportation.
E. Section 11366: Maintaining a Place for Purposes of Selling, Giving Away, or Using a Controlled Substance
"The elements of the opening-or-maintaining offense are that the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance." (People v. Hawkins (2004) 124 Cal.App.4th 675, 680.) "The statute is aimed at places intended to be utilized for a continuing prohibited purpose, and a single or isolated instance of misconduct does not suffice to establish a violation." (People v. Vera (1999) 69 Cal.App.4th 1100, 1102.) Conviction under section 11366 requires evidence that defendant provided a place for purposes of selling or giving away controlled substances to others or for the use by them of such substances. (People v. Franco (2009) 180 Cal.App.4th 713, 724-725.)
In addressing whether land with a residence used to cultivate marijuana for sale could be subject to forfeiture, the attorney general's office took the position that section 11366 is site specific. (74 Ops.Cal.Atty.Gen. 70.) Where a site is maintained for purposes of cultivating marijuana for sale, "it must be shown that the marijuana is sold where it is cultivated. In addition, it would be necessary to show that the site is being maintained for the purpose of those sales." (Id. at p. 72.)
Defendant contends there is no evidence he maintained his property for purposes of selling, giving away, or using marijuana. We agree. There was no evidence of any such activity on site and no evidence that such activity was intended in the future. The People again rely on unsupported inferences, arguing defendant "intended to use his rented property to repeatedly sell or give away marijuana" through Lemus. But the evidence established only that Lemus would--at some later speculative date--take away the harvested marijuana from this particular grow. There was no evidence that he would sell it, give it away, or use it on the property. Further, there was no evidence that the cultivation and subsequent distribution were intended to be continuing. Defendant had not been paid by Lemus, and he testified Garcia was to sign a rental agreement, but had not. What the future held was entirely speculative. "[S]peculation is not evidence and cannot support a conviction." (People v. Wright (2016) 4 Cal.App.5th 537, 546.) Insufficient evidence supports the maintaining conviction.
II
Denial of a Fair Trial -- the Trial Court's Misunderstanding of the Law
Defendant contends he was denied a fair trial because the trial court misunderstood the law. In reaching its verdict, the trial court stated that defendant and Mitchell had "bogus" marijuana recommendations because they were not using marijuana. Defendant contends one need not be currently using marijuana to acquire a valid physician's recommendation for its use. The court also cited to defendant's testimony that Lemus would pay fluctuating amounts over the $2,000 to pay for the additional water use. Defendant reads this latter comment to mean the court believed one could not recover for overhead expenses incurred in growing marijuana. Defendant asserts a collective's recovery of overhead expenses for growing marijuana is permissible.
Even if defendant is correct that the trial court was mistaken on the law (a point we need not decide), his contention fails because he cannot show prejudice. "Absent structural error, it is the well-established California rule in both civil and criminal appeals that the judgment is presumed correct, and a record silent on a point cannot overcome this presumption. [Citations.] As a result, it is not enough for an appellant to identify an error in the proceedings in the trial court without affirmatively establishing 'how the error caused a miscarriage of justice.' [Citation.]" (People v. Singh (2015) 234 Cal.App.4th 1319, 1330.)
Defendant contends he was prejudiced by the trial court's misunderstanding of the law on the medical marijuana defense because it prevented the court from considering whether he had criminal intent, shared another's criminal intent, or had a defense under the CUA or MMP. As discussed ante, defendant failed to assert a valid medical marijuana defense because there was no evidence the marijuana was being grown or used for a medical purpose. The evidence introduced by the prosecutor was that Lemus would take all the marijuana away after it was harvested, with defendant perhaps receiving some small amount to make edibles. There was no evidence that defendant wanted to make edibles for a medical purpose or that Lemus would use the marijuana for a medical purpose or that anyone to whom Lemus may have been planning to give or sell the marijuana to, such as Bautista or Garcia, would use it for a medical purpose. Defendant suggests Lemus may have been part of a legal cooperative or collective, but there was no evidence introduced to support the suggestion. Defendant has failed to show prejudice resulted from any arguable misunderstanding of the law by the trial court.
III
Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective in failing to introduce into evidence two specific pieces of evidence in support of his medical marijuana defense. He faults counsel for failing to introduce evidence (1) that he intended to use some of the marijuana to make edibles and (2) that he had health problems. The probation report indicates defendant has been disabled since 1992 due to complications from type 2 diabetes and his eyesight is so poor that he is considered legally blind. He contends there was no tactical reason "not to introduce evidence that [he] was a legitimate medical marijuana patient who intended to use marijuana in edible form."
An ineffective assistance of counsel claim has two prongs. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) First, defendant must show that his counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) Second, defendant must show there is a reasonable probability that, but for counsel's errors, the result would have been different. (Id. at pp. 217-218.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (Id. at p. 218.)
"Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
Defendant has failed to establish ineffective assistance of counsel, because the evidence he claims should have been introduced does not show that he was a legitimate medical marijuana patient. Further, evidence that defendant intended to make edibles from some of the marijuana had already been introduced by the prosecution. Officer Spear testified defendant told him he was "hoping to be making edibles this year." But there was no evidence that the edibles were for a medical purpose. Likewise, there was no evidence defendant intended to use marijuana for his eyesight or his diabetes, or that a physician had recommended its use for these conditions. Defendant has not shown that such evidence existed, much less that it could and should have been introduced at trial. His claim of ineffective assistance fails.
IV
Penalty Assessment on Lab Fee
Defendant contends the penalty assessments (which total $150) imposed on the criminal laboratory analysis fee (§ 11372.5) are unauthorized. He relies on a recent case, People v. Watts (2016) 2 Cal.App.5th 223, which held the lab fee at issue is not a "fine, penalty, or forfeiture" subject to penalty assessments.
Defendant complied with Penal Code section 1237.2 by seeking correction in the trial court. The court denied the request.
A. Section 11372.5, subdivision (a)
Section 11372.5, subdivision (a) provides:
(a) "Every person who is convicted of [listing offenses, including defendant's] 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."
Various penalty assessments are levied "upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. (E.g., Pen. Code, § 1464, subd. (a)(1).)
The mandatory penalty assessments include: (1) a $50 state penalty assessment (Pen. Code, § 1464, subd. (a)(1)); (2) a $10 state surcharge (id., § 1465.7); (3) a $25 state court construction penalty (Gov. Code, § 70372); (4) a $35 additional penalty (id., § 76000, subd. (a)(1)); (5) a $10 emergency medical services penalty (id., § 76000.5, subd. (a)(1)); (6) a $5 penalty for the implementation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (id., § 76104.6, subd. (a)(1)); and (7) a $20 forensic laboratories penalty (id., § 76104.7).
The language of subdivision (a) of section 11372.5 is inconsistent in describing the crime lab fee. It refers to the crime lab fee variously as a "criminal laboratory analysis fee" that increases "the total fine," and also as a "fine" "which shall be in addition to any other penalty." (§ 11372.5, subd. (a), italics added.) Despite this inconsistency in the language of the statute, for many years appellate court decisions were unanimous in finding the crime lab fee subject to penalty assessments. (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [lab fee is a fine]; People v. Martinez (1998) 65 Cal.App.4th. 1511, 1522 [same]; People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1252 [lab fee is increment of total fines]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1257 (Terrell) [lab fee subject to penalty assessments]; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414 & fn. 3 [following Martinez]; People v. Sharret (2011) 191 Cal.App.4th 859, 863-864 (Sharret) [lab fee subject to penalty assessments].)
More recently, the Court of Appeal, First District, Division One went against this weight of authority and found the crime lab fee was not subject to penalty assessments. (People v. Watts, supra, 2 Cal.App.5th at pp. 229-237.) The Watts court relied in part on People v. Vega (2005) 130 Cal.App.4th 183, 185, which found the lab fee was not punishment. This court disagreed with Watts in People v. Moore (2017) 12 Cal.App.5th 558.)
This split in authority was recently addressed in People v. Alford (2017) 12 Cal.App.5th 964 (Alford). In resolving this issue, the Alford court set forth the history of prior judicial determinations of the applicable laws. (Id. at pp. 968-970.) In particular, the court focused on our Supreme Court's decision in People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen), and found Talibdeen "controlling." (Alford, at pp. 968-969.)
In Talibdeen, the question before the court was whether a trial court could waive the Penal Code section 1464 and Government Code section 76000 penalties on the crime lab fee. (Talibdeen, supra, 27 Cal.4th at p. 1153.) The trial court had not levied the penalties even though "subdivision (a) of Penal Code section 1464 and subdivision (a) of Government Code section 76000 called for the imposition of state and county penalties based on such a fee." (Ibid., italics added, fn. omitted.) Our Supreme Court found "imposition of these penalties is mandatory." (Id. at p. 1155; see also p. 1157 (conc. opn. of Werdegar, J.) ["the state and county penalties were mandatory"].) In reaching its conclusion that the penalty assessments were mandatory--and their omission could be corrected on appeal despite the lack of objection--the Talibdeen court said it was following appellate court decisions, including Martinez and Terrell, which addressed the issue presented here. (Id. at p. 1157.) As the Alford court found, "Because the holdings of these Court of Appeal decisions constituted the logical predicate to the high court's ultimate conclusion on the mandatory nature of the penalty as applied to a section 11372.5 assessment, we necessarily conclude they were encompassed within the Talibdeen court's holding. [Citation.] If the high court had intended to disavow [these] holdings on this issue or suggest it was not reaching the propriety of these rulings, it could have said so. It did not." (Alford, supra, 12 Cal.App.5th at pp. 974-975.)
In its reliance on Talibdeen, the Alford court stressed the importance of stare decisis and its premise that "certainty, predictability and stability in the law are the major objectives of the legal system." (Alford, supra, 12 Cal.App.5th at p. 975, internal quotation marks omitted.) For almost 20 years, until recently, the crime lab fee has been held to be subject to penalty assessments. (People v. Martinez, supra, 65 Cal.App.4th at p. 1522.) Our Supreme Court endorsed that view 15 years ago (Talibdeen, supra, 27 Cal.4th at p. 1155) and has not spoken to the contrary since.
In 2005, after many of the decisions holding the crime lab fee was subject to penalty assessments were issued, the Legislature amended section 11372.5 (Stats. 2005, ch. 158, § 23), without changing the language relating to "fine" or "penalty" or clarifying the crime lab fee's nature. "When a statute has been construed by the courts, and the Legislature thereafter reenacts that statute without changing the interpretation put on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statute." (People v. Bouzas (1991) 53 Cal.3d 467, 475.)
In short, absent a contrary decision by our Supreme Court or legislative action, we agree with the Alford court that Talibdeen is controlling on this issue. The trial court did not err in imposing penalty assessments on the crime lab fee.
Like the Alford court, we welcome further action by our Supreme Court to resolve the current conflict on this issue or by the Legislature to clarify the statute. (Alford, supra, 12 Cal.App.5th at p. 967, fn. 2.)
We note that section 11372.5 applies to both sections 11358 (cultivation) and 11359 (possession for sale) and the lab fee is assessed on "each separate offense." (§ 11372.5, subd. (a).) Here, the trial court imposed only one lab fee, instead of one on each of the two counts of conviction. We modify the judgment to impose two crime lab fees (with appropriate penalty assessments) rather than one--one fee for each count of conviction.
V
Relief under Proposition 64
A. Provisions of Proposition 64
On November 8, 2016, California voters approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act. (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 64, p. 178.) Proposition 64 added section 11362.1, under which a person 21 years of age or older may possess, transport, or give away not more than 28.5 grams of marijuana not in the form of concentrated cannabis, and may cultivate not more than six living marijuana plants. (§ 11362.1, subds. (a) (1) & (3).) The proposition also reduced the punishment for certain marijuana offenses. Cultivation of more than six living marijuana plants by an adult is punished as a misdemeanor unless the person has certain prior convictions or intentionally or with gross negligence causes substantial environmental harm. (§ 11358, subds. (c) & (d).) The possession for sale of marijuana by one 18 years of age or older is punished as a misdemeanor unless the person has certain prior convictions or the offense involved the sale or attempted sale to one under 18 years of age or the knowing use of one 20 years of age or younger in cultivating, transporting or selling marijuana. (§ 11359, subds. (b) & (c).) With similar exceptions, transportation of marijuana is punishable as a misdemeanor, or as an infraction if the amount is less than 28.5 grams of marijuana. (§ 11360, subds. (a)(2) & (3).)
Proposition 64 also provides for recall of sentence or dismissal in certain cases. It added section 11361.8, which provides in part: "(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act.
"(b) Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety."
B. Defendant's Contention and Analysis
Defendant contends he is entitled to the benefit of Proposition 64 because his judgment is not yet final. Defendant relies on the rule of in In re Estrada (1965) 63 Cal.2d 740, 748: "[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." Estrada explained, "The problem, of course, is one of trying to ascertain the legislative intent--did the Legislature intend the old or new statute to apply? Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional." (Id. at p. 744.)
Although defendant seeks to benefit from the ameliorative benefits of Proposition 64, he contends the recall/dismissal provision of section 11361.8 does not apply to him as a saving clause. In People v. Rascon (2017) 10 Cal.App.5th 388 (Rascon), the court rejected a similar claim that the ameliorative benefits of Proposition 64 were retroactive. The court relied on People v. Conley (2016) 63 Cal.4th 646 (Conley). There, defendant had been sentenced under the three strikes law to an indeterminate term of 25 years to life and appealed. While his appeal was pending, voters passed the Reform Act; two days later the appellate court issued its decision. Defendant petitioned for rehearing asking the court to remand to the trial court for resentencing. (Conley, at pp. 654-655.) Defendant argued that since his judgment was not yet final, he was entitled to rely on the rule of Estrada and to be automatically resentenced without complying with the provisions of the Reform Act that required filing a petition and the trial court's determination of his risk to public safety. (Id. at pp. 655-656.)
Our Supreme Court found that unlike the statute at issue in Estrada, the Reform Act was not silent on the issue of retroactivity. Rather, it addressed the issue in Penal Code section 1170.126. (Conley, supra, 63 Cal.4th at p. 657.) Penal Code section 1170.126 provides a mechanism for a petition for recall of sentence for those "serving an indeterminate term of life imprisonment," without regard to whether the judgment is final or not. While Estrada drew a line between those whose sentences were final and sentences that are not, in the Reform Act "the voters adopted a different approach. They took the extraordinary step of extending the retroactive benefits of the Act beyond the bounds contemplated by Estrada—including even prisoners serving final sentences within the Act's ameliorative reach—but subject to a special procedural mechanism for the recall of sentences already imposed. In prescribing the scope and manner of the Act's retroactive application, the voters did not distinguish between final and nonfinal sentences, as Estrada would presume, but instead drew the relevant line between prisoners "presently serving" indeterminate life terms—whether final or not—and defendants yet to be sentenced." (Conley, at pp. 657-658.)
The Rascon court found "Conley's analysis applies with equal force here." (Rascon, supra, 10 Cal.App.5th at p. 394.) We agree. As with the Reform Act, in Proposition 64 the voters provided a mechanism for resentencing or dismissal that applies to all judgments, whether final or not, and restricted that relief to those the trial court determined would not "pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b).) As in Conley, defendant is limited to the relief, if any, provided to those in his position by section 11361.8.
Defendant argues that Conley is distinguishable because the Reform Act merely reduced sentences while Proposition 64 also changed the elements of some substantive offenses. He contends that because the elements of the offense of cultivation of marijuana have changed--cultivation of no more than six plants by an adult is no longer a crime--he is entitled to a new trial so a trier of fact can determine whether he is "truly guilty in the first place." He argues a new trial is required to protect his constitutional right to have a trier of fact determine his guilt beyond a reasonable doubt. Under section 11361.8, subdivision (b), the People may successfully oppose the petition for recall or dismissal by only clear and convincing evidence.
Defendant has already been found "truly" guilty beyond a reasonable doubt. He has no constitutional right to receive the benefit of Proposition 64 or get a second trial. The Legislature (or the electorate) is permitted to determine whether the old or new statute should apply and either determination is "legal and constitutional." (In re Estrada, supra, 63 Cal.2d at p. 744.) "[T]he Legislature (or here, the electorate) may choose to modify, limit, or entirely forbid the retroactive application of ameliorative criminal law amendments if it so chooses." (Conley, supra, 63 Cal.4th at p. 656.)
Defendant contends his right to a new trial is supported by several cases in which a matter was remanded for a new trial after a new defense was enacted or a statute was amended to add a new element. In People v. Trippet (1997) 56 Cal.App.4th 1532, defendant was convicted of transporting and possession of marijuana. After her conviction, the voters enacted Proposition 215, the CUA. Finding the rule of Estrada applied, the court remanded for further proceedings to determine whether defendant had a defense under the CUA to the charges. (Id. at p. 1551.) In People v. Eagle (2016) 246 Cal.App.4th 275, defendant was convicted of transporting methamphetamine and placed on probation. The transportation statute was subsequently amended to require the transportation be for the purpose of sale. As defendant's judgment was not final, he was entitled to the benefit of the new statute. (Id. at p. 279.). This court reversed the transportation conviction and remanded the matter to the trial court to allow the People an opportunity to prove defendant's transportation was for sale. (Id. at p. 280.) In People v. Figueroa (1993) 20 Cal.App.4th 65, shortly after the defendant was convicted, an enhancement he had received was amended to add a new element. The appellate court reversed the enhancement and remanded the matter to allow the People to prove beyond a reasonable doubt the new element of the enhancement. (Id. at p. 71.)
We find these cases distinguishable. In none of them did the new or amended law "modify, limit, or entirely forbid the retroactive application of ameliorative criminal-law amendments." (Conley, supra, 63 Cal.4th at p. 656.) "Our cases do not 'dictate to legislative drafters the forms in which laws must be written' to express an intent to modify or limit the retroactive effect of an ameliorative change; rather, they require 'that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.' [Citations.]" (Id. at pp. 656-657.) Here, as in Conley, the electorate did limit the retroactive application of Proposition 64 by creating a special mechanism in section 11361.8 for its retroactive application, contingent upon a court's evaluation of the defendant's dangerousness. (Conley, at p. 658.) Under Proposition 64, "unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria" "the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b).) This language provides sufficient clarity that we may readily discern and effectuate it. Defendant's argument to the contrary fails.
We deny defendant's request for a new trial and his alternate request that we reduce certain counts to misdemeanors. Defendant's remedy is limited to that provided in section 11361.8.
DISPOSITION
Counts 3 and 4 are reversed. The judgment is modified to impose a second $50 crime lab fee and appropriate penalty assessments. As modified, the judgment is affirmed. The trial court is directed to prepare a new probation order to reflect these modifications to the judgment.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Robie, J. Concurring opinion of Duarte, J.
If I were writing on a clean slate, without 20 years of judicial interpretation of Health and Safety Code section 11372.5 and our high court's opinion in People v. Talibdeen (2002) 27 Cal.4th 1151, which declined to disturb this ongoing interpretation, I would find the crime lab fee is an administrative fee, not a fine or a penalty, and therefore not subject to penalty assessments. I write separately to explain why.
I agree with People v. Watts (2016) 2 Cal.App.5th 223, 231 (Watts) that the language of subdivision (a) of section 11372.5 is internally inconsistent, referring to the crime lab fee variously as a fee, a fine, a penalty, and an increment. Because I find this language ambiguous, I turn to the remainder of section 11372.5 to resolve the question as to precisely what the crime lab fee is. While the language of subdivision (a) of section 11372.5 is unclear, the language of subdivision (b) is specific and illuminates the purpose of the crime lab fee. The remainder of section 11372.5 provides in pertinent part that: "(b) The county treasurer shall maintain a criminalistics laboratories fund. The sum of fifty dollars ($50) shall be deposited into the fund for every conviction under [listing offenses, including defendant's], in addition to fines, forfeitures, and other moneys which are transmitted by the courts to the county treasurer pursuant to Section 11502. The deposits shall be made prior to any transfer pursuant to Section 11502. The county may retain an amount of this money equal to its administrative cost incurred pursuant to this section. Moneys in the criminalistics laboratories fund shall, except as otherwise provided in this section, be used exclusively to fund (1) costs incurred by criminalistics laboratories providing microscopic and chemical analyses for controlled substances, in connection with criminal investigations conducted within both the incorporated or unincorporated portions of the county, (2) the purchase and maintenance of equipment for use by these laboratories in performing the analyses, and (3) for continuing education, training, and scientific development of forensic scientists regularly employed by these laboratories. Moneys in the criminalistics laboratory fund shall be in addition to any allocations pursuant to existing law."
Thus the fee is to be deposited into a "criminalistics laboratory fund" after the county retains an amount "equal to its administrative cost incurred pursuant to" section 11372.5, subdivision (b). The fee is to "be used exclusively to fund" the laboratory's costs of analyses of controlled substances, the purchase and maintenance of the laboratory's equipment, and for continuing education of the laboratory's forensic scientists. (Ibid., italics added.) Read together, subdivisions (a) and (b) show that in enacting section 11372.5, the Legislature intended to create a "criminalistics laboratory fund" to pay for the analysis of controlled substances and to fund it through a "user's fee" on drug offenders, rather than to establish an additional punishment on drug offenders by way of another fine. (See People v. Alford (2007) 42 Cal.4th 749, 757 [legislative intent to impose fee to maintain funding was nonpunitive intent].) Because the crime lab fee is used to defray laboratory and administrative costs, it is administrative, not punitive.
Subdivision (c) of section 11372.5 provides that any surplus funds shall be distributed "in accordance with the allocation scheme for distribution of fines and forfeitures set forth in Section 11502." In People v. Moore (2017) 12 Cal.App.5th 558, 565, this court found this provision created "dual purposes of a fee and a fine" and neither purpose was predominate. I cannot agree. The purpose of the crime lab fee is to fund crime labs; subdivision (c) only provides a mechanism for distributing any surplus funds, an unlikely event.
On this point, I agree with Watts that the crime lab fee does not fit within the categories of a "fine, penalty or forfeiture" because it is not punishment. I find the reasoning of People v. Vega (2005) 130 Cal.App.4th 183 persuasive. "[T]he label the Legislature places on a charge, whether 'fee' or 'fine,' is not determinative, especially where as here the Legislature used both terms." (Id. at p. 195.) "In most cases the determination can be made on the basis of the purpose of the charge imposed. Fines are imposed for retribution and deterrence; fees are imposed to defray administrative costs. It is clear to us the main purpose of Health and Safety Code section 11372.5 is not to exact retribution against drug dealers or to deter drug dealing (given the amount of money involved in drug trafficking a $50 fine would hardly be noticed) but rather to offset the administrative cost of testing the purported drugs the defendant transported or possessed for sale in order to secure his conviction. The legislative description of the charge as a 'laboratory analysis fee' strongly supports our conclusion, as does the fact the charge is a flat amount, it does not slide up or down depending on the seriousness of the crime, and the proceeds from the fee must be deposited into a special 'criminalistics laboratories fund' maintained in each county by the county treasurer." (Ibid.)
Recently, another court agreed with Watts and Vega that the crime lab fee "serves a primarily administrative function" and so is not subject to penalty assessments. (People v. Webb (2017) 13 Cal.App.5th 486, 498.)
I recognize the appellate court in People v. Sharret (2011) 191 Cal.App.4th 859 took a different view. Sharret determined the language of section 11372.5 signals that the crime lab fee is punitive in nature because a sentencing court is to increase the total fine in increments as necessary for each separate offense. (Sharret, at pp. 869-870.) The crime lab fee may only be imposed upon a criminal conviction and it has no application in a civil context. (Id. at p. 870.) The fee is mandatory and without an "ability to pay requirement." The fees are used solely for law enforcement purposes, and "earmarked for the criminalistics laboratories fund, which has no civil purpose." (Ibid.) There is no evidence that section 11372.5 "was a mere budget measure" like other statutory fees. (Sharret, at p. 870.)
I take a different view from Sharret on this point. In my view, the crime lab fee is comparable to the jail booking fee and jail classification fee of Government Code section 29550.2, subdivision (a). The crime lab fee "does not promote the traditional aims of punishment--retribution and deterrence," and is imposed not as retribution "but for his or her use of [laboratory] services as the result of criminal behavior." (People v. Rivera (1998) 65 Cal.App.4th 705, 711 [finding fees under Gov. Code, § 29550.2 not punishment for ex post facto purposes].)
Thus, in my view, the crime lab fee should be classified as an administrative fee, not a fine or a penalty, and therefore not subject to penalty assessments. However, for the reasons I have expressed in the majority opinion and because I do not write on a clean slate, we hold today that the crime lab fee is a fine.
/s/_________
Duarte, J.