Opinion
C075910
08-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DANTE LAMAR CAVINESS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF125826)
This case originally came to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Subsequently, counsel requested we strike the Wende brief and address a single issue. Defendant asserted that the trial court improperly imposed penalty assessments on the Health and Safety Code section 11372.5 laboratory fees.
We strike the Wende brief and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of October 20, 2013, Stockton Police Officer Houston Sensabaugh saw defendant make a turn without a proper signal, saw an air freshener hanging from the windshield which could have obstructed the driver's view, and the passenger's side window appeared to have dark window tinting. These were Vehicle Code violations so Sensabaugh conducted a traffic stop. Defendant was on searchable probation and his passenger, Donald Caviness, was on parole. Sensabaugh conducted a weapons search, handcuffed defendant, and had him lean against the patrol car. Sensabaugh's partner, Deputy Nick Taiariol, searched the car and found a loaded .22-caliber operable long rifle revolver pistol, a common substance for cutting crystal methamphetamine, and 72.83 grams of heroin. In the trunk of the car, Taiariol found a box of .22-caliber ammunition. He also found a digital scale in the car and packaging materials. Sensabaugh searched defendant and found $255.35 in cash. Officer Jimmy Fritts, qualified as an expert, opined that based on the quantity, extra packaging, and scales, the heroin was possessed for sale. The wholesale street value of the heroin was between $3,000 and $6,000.
Defendant was charged with sales or transportation of heroin (Health & Saf. Code, § 11352 (count 1)), possession of heroin for sale (Health & Saf. Code, § 11351 (count 2)), possession of a controlled substance with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a) (count 6)), and carrying a loaded firearm in a vehicle (Pen. Code, § 25850, subds. (a) & (c)(6) (count 7)). As to counts 1 and 2, the information further alleged defendant was armed with a firearm in the commission of those offenses. (Pen. Code, § 12022, subd. (c).)
Counts 3 through 5 applied only to the codefendant. --------
Following the denial of defendant's motion to suppress, defendant pled no contest to all counts. The trial court sentenced defendant to the middle term of four years on count 1, with an additional four years for the firearm enhancement. The trial court imposed the middle term and stayed execution of that sentence on each of the remaining counts pursuant to Penal Code section 654. The court awarded defendant 238 days of presentence custody credits, ordered defendant to pay a $300 restitution fund fine (Pen. Code, § 1202.4, subd. (b)), a $30 administration fee, a $300 parole revocation fine suspended unless parole is revoked (Pen. Code, § 1202.45), a $195 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)), a court operations fee of $160 (Pen. Code, § 1465.8, subd. (a)(1)), and a $120 court facilities assessment (Gov. Code, § 70373).
DISCUSSION
Defendant asserts that the fee imposed under Health and Safety Code section 11372.5 does not constitute punishment and is therefore not subject to penalty assessments. He relied on People v. Watts (2016) 2 Cal.App.5th 223. We rejected the Watts reasoning in People v. Moore (2017) 12 Cal.App.5th 558 (Review granted Sept. 13, 2017), and held that the criminal laboratory analysis fee constitutes a fine or penalty for purposes of the penalty assessments imposed by Penal Code section 1464 and Government Code section 76000. Therefore, penalty assessments are properly imposed on the Health and Safety Code section 11372.5 laboratory fee. (Id. at pp. 568-571.) Subsequently, our high court held that the laboratory fees are part of punishment and disapproved of Watts and other cases that followed the Watts reasoning. (People v. Ruiz (2018) 4 Cal.5th 1100, 1112-1122 and fn. 8.)
Accordingly, we reject defendant's argument and affirm the judgment.
DISPOSITION
The judgment is affirmed.
/s/_________
MURRAY, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
HOCH, J.