Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. CR902736 & CR910403
McGuiness, P.J.
Appellant Marcus Eric Davis appeals from a judgment of conviction following a guilty plea, contending the trial court erred by imposing penalty assessments in connection with a laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (§ 11372.7, subd. (a)). Because we conclude that the imposition in this case of penalty assessments under Government Code sections 76104.6 and 76104.7 violates the prohibition against ex post facto laws, we strike those assessments but otherwise affirm the judgment as modified.
All further statutory references are to the Health and Safety Code unless otherwise specified.
Factual and Procedural Background
Because the sole issue raised in Davis’s appeal relates to the imposition of penalty assessments, we need not discuss the facts of the underlying offenses.
On July 5, 2005, the Lake County District Attorney filed a three-count information in case number CR902736 charging Davis with the following: (1) possession of methamphetamine, a felony (§ 11377, subd. (a)); (2) driving with a suspended license, a misdemeanor (Veh. Code, § 14601.1, subd. (a)); and (3) driving an unregistered vehicle, an infraction (Veh. Code, § 16028, subd. (a)). In connection with the charge of methamphetamine possession, it was further alleged that Davis was presumptively ineligible for probation due to prior convictions (Pen. Code, § 1203, subd. (e)(4)), that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b), and that he had suffered a prior strike under California’s Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)).
On September 7, 2006, the Lake County District Attorney filed a two-count information in case number CR910403 charging Davis with the following: (1) felony domestic violence (Pen. Code, § 273.5, subd. (a)) and (2) felony false imprisonment (Pen. Code, § 236). It was further alleged in connection with both counts that Davis had suffered a prior strike (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)-(d)) and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The information contained special allegations that Davis committed the charged offenses while released on bail in case numbers 908602 and 902736. (Pen. Code, § 12022.1.)
The record does not contain an information associated with case number CR908602, apparently because all charges in that case were dismissed.
Pursuant to a negotiated disposition, Davis pleaded guilty on April 20, 2007, to counts 1 and 2 in case number CR902736 (methamphetamine possession and driving with a suspended license), and he pleaded guilty to count 1 in case number CR910403 (domestic violence, as a misdemeanor rather than a felony). In addition, he admitted suffering a prior strike and serving a prior prison term. The court dismissed the remaining counts in both cases with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
The court sentenced Davis on December 3, 2007, imposing a prison term of six years. The court chose the conviction for methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)) as the base term, imposed the upper term of three years, and doubled the term pursuant to California’s Three Strikes Law (Pen. Code, §§ 667, subd. (b), 1170.12, subd. (a)). The court imposed but stayed a one-year enhancement for having served a prior prison term (Pen. Code, § 667.5, subd. (b)). The court also imposed a concurrent term of 30 days for driving with a suspended license (Veh. Code, § 14601.1, subd. (a), and a 90-day concurrent term for misdemeanor domestic violence (Pen. Code, § 273.5, subd. (a)).
As relevant here, at the sentencing hearing the court imposed a “criminal laboratory analysis fine” of $180 and a “drug program fine” of $540, without specifying the statutory basis for the fines. Likewise, the minute order lists the total fee amounts without reference to any statutory basis for their imposition. The abstract of judgment indicates the lab fee was authorized under section 11372.5, subdivision (a) and the drug program fee under section 11372.7, subdivision (a). The probation report contains a further breakdown of the fees, indicating a lab fine in the sum of $50, plus a penalty assessment of $130 (for a total of $180), and a drug program fine of $150, plus a penalty assessment of $390 (for a total of $540). The probation report does not contain a breakdown of the penalty assessment amounts or indicate the statutory basis for the penalty assessments, other than a reference to sections 11372.5 and 11372.7. Thus, at least as this court is aware, there is nothing in the record on appeal to indicate how the court derived the additional penalty assessments.
The charges are alternately referred to as “fines” or “fees” in the record.
Discussion
The sole issues on appeal relate to the penalty assessments imposed in connection with the laboratory analysis fee (§ 11372.5) and the drug program fee (§ 11372.7). Davis does not dispute the imposition of the fees themselves, but instead challenges the add-on penalty assessments, claiming that the fees authorized by sections 11372.5 and 11372.7 are not “fines” on which penalty assessments may be levied. To the extent penalty assessments may be properly applied to fees imposed under sections 11372.5 and 11372.7, he argues that the penalty assessments imposed in this case exceed the statutory maximums and must be reduced accordingly.
Davis did not object below to the imposition of the penalty assessments. Nevertheless, as he correctly points out, the issue is cognizable on appeal because an unauthorized sentence may be corrected at any time. (See People v. Burnett (2004) 116 Cal.App.4th 257, 260-261.)
1. Penalty Assessments Are Properly Imposed in Connection with Fees Assessed Under Sections 11372.5 and 11372.7.
Section 11372.5, subdivision (a) requires persons convicted of specified drug offenses to “pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.” Subject to a determination of a defendant’s ability to pay (§ 11372.7, subd. (b)), subdivision (a) of section 11372.7 requires persons convicted of a drug offense listed in Chapter 6 of Division 10 of the Health and Safety Code to “pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense.”
It is undisputed that Davis was convicted of an offense (§ 11377) that qualifies for assessments of laboratory analysis and drug program fees. Thus, Davis was properly assessed a $50 laboratory analysis fee under section 11372.5 and a $150 drug program fee under section 11372.7. Davis contends the court had no authority to append penalty assessments onto these fees, arguing they do not constitute punishment and are not “fines” to which penalty assessments apply. We disagree.
“Additional penalties, or assessments, are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses. This requirement is mandated by Penal Code section 1464 and Government Code section 76000.” (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694 (Sierra).) Davis has cited two additional penalty statutes enacted since Sierra was decided: Penal Code section 1465.7, subdivision (a), providing for a 20 percent state surcharge on the base fine, and Government Code section 70372, subdivision (a), providing for a court facilities construction penalty in the amount of $5 for every $10 of a fine or fraction thereof. Further, the Attorney General has identified two additional, applicable penalty statutes adopted for the purpose of implementing the state’s DNA Fingerprint, Unsolved Crime and Innocence Protection Act: Government Code sections 76104.6, subdivision (a), and 76104.7, subdivision (a), each of which imposes matching penalties of one dollar for every ten dollars or fraction thereof of fines, penalties, or forfeitures.
Penal Code section 1464, subdivision (a) provides in relevant part that “there shall be levied a state penalty, in the amount of ten dollars ($10) 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 . . . .” Government Code section 76000, subdivision (a)(1) provides in relevant part that “there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10) or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .”
The imposition of penalty assessments is mandatory. (Sierra, supra, 27 Cal.App.4th at p. 1695.) Although subdivision (d) of Penal Code section 1464 permits the trial court to waive the penalty assessment under specified circumstances, our Supreme Court has held that the statutory language permits the trial court to waive the penalties only if the defendant is in the midst of serving a sentence imposed because he failed to a pay a fine. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1155.) Here, Davis was not in the midst of serving a sentence for failure to pay a fine. Therefore, the trial court was obligated to impose the penalty assessments if the laboratory analysis fee and the drug program fee are properly characterized as fines, penalties, or forfeitures.
In Sierra, the Court of Appeal for the Fifth Appellate District directly addressed the question of whether a penalty assessment may be charged on a drug program fee imposed under section 11372.7. The court held that “The only reasonable interpretation of Health and Safety Code section 11372.7 is that it is a fine and/or penalty to which the penalty assessment provisions of Penal Code section 1464 and Government Code section 76000 apply.” (Sierra, supra, 37 Cal.App.4th at p. 1696.) The court pointed out that the fee imposed under section 11372.7, subdivision (a) is described as both a fine and a penalty within that subdivision. (Id. at p. 1695.)
In People v. Martinez (1998) 65 Cal.App.4th 1511 (Martinez), Division Five of the Court of Appeal for the Second Appellate District extended the reasoning of Sierra to the laboratory analysis fee imposed under section 11372.5. The court held: “Under the reasoning of Sierra, we conclude Health and Safety Code section 11372.5, defines the criminal laboratory analysis fee as an increase to the total fine and therefore is subject to penalty assessments under section 1464 and Government Code section 76000.” (People v. Martinez, supra, 65 Cal.App.4th at p. 1522.) In People v. Talibdeen, supra, 27 Cal.4th 1151, our Supreme Court did not address the question presented here but focused on a related issue—whether a trial court has discretion to waive penalties under Penal Code section 1464. The court held such penalties are mandatory. (People v. Talibdeen, supra, 27 Cal.4th at p. 1153.) Notably, the Supreme Court assumed that penalty assessments may be properly applied to a laboratory analysis fee imposed under section 11372.5, because the penalty assessments in that case were appended onto such a fee. (People v. Talibdeen, supra, 27 Cal.4th at p. 1153 & fn. 2.)
Davis concedes that Sierra and Martinez respectively hold that penalty assessments are applicable to drug program and laboratory analysis fees. Nevertheless, he urges we follow the reasoning of People v. Vega (2005) 130 Cal.App.4th 183 (Vega), which he claims reaches a different conclusion than Martinez on the question whether additional penalty assessments must be assessed on the laboratory analysis fee imposed under section 11372.5. Contrary to Davis’s claims, Vega is not in conflict with Martinez.
In Vega, the defendants were convicted of conspiracy to transport cocaine and to possess cocaine for sale, but they were not convicted (or charged) with the offenses of transporting cocaine or possessing cocaine for sale. (Vega, supra, 130 Cal.App.4th at p. 185.) The issue on appeal was whether the trial court was authorized to impose a laboratory analysis fee given that section 11375.2 expressly required such a fee for transportation or possession for sale convictions but made no mention of a conviction for conspiracy to commit those same crimes. (Vega, supra, 130 Cal.App.4th at pp. 193-194.) Although the failure to list conspiracy in section 11372.5 as one of the qualifying crimes suggested the fee was inapplicable, the court held that because conspiracies under Penal Code section 182 are punished in the same manner and to the same extent as the underlying felony, the dispositive question was whether the laboratory analysis fee constituted punishment. (Vega, supra,130 Cal.App.4th at p. 194.) The court held the fee is not punishment, reasoning in part that the charge’s purpose is not retribution or deterrence but is instead to defray administrative costs. Because the court held the laboratory analysis fee was not properly imposed, it ordered the fee as well as the associated penalty assessments stricken. (Id. at p. 195.)
Plainly, Vega addressed whether the laboratory analysis fee applied to the conviction in the first instance, not whether penalty assessments were properly appended to the fee. Vega did not decide or even consider whether penalty assessments apply to a properly imposed laboratory analysis fee. Furthermore, we are not persuaded that Vega’s conclusion the laboratory analysis fee is not “punishment” under Penal Code section 182 undermines the rationale of Sierra and Martinez. The Legislature intended penalty assessments to be appended to drug program and laboratory analysis fees. (Sierra, supra, 37 Cal.App.4th at pp. 1695-1696; Martinez, supra, 65 Cal.App.4th at pp. 1521-1522.) That legislative intent is not dependent upon whether such fees are “punishment” for the purpose analyzed in Vega. Accordingly, we reject Davis’s contention that the trial court lacked authority to impose penalty assessments in connection with the laboratory analysis and drug program fees.
2. The Imposition of the DNA Penalty Assessments Violates the Prohibition Against Ex Post Facto Laws.
Davis contends that, even if penalty assessments may properly be appended to laboratory analysis and drug program fees, the assessments imposed by the trial court here exceeded the statutory maximum and must be reduced. He identifies four applicable penalty assessment statutes—Penal Code section 1464, Government Code section 76000, Penal Code section 1465.7, and Government Code section 70372. Applying the formulas set forth in these statutes, Davis contends the statutory maximum penalty assessments are $170 on the laboratory analysis fee (§ 11372.5) and $510 on the drug program fee (§ 11372.7). The trial court imposed aggregate penalty assessments of $180 and $540, respectively, on the laboratory analysis fee and the drug program fee. Thus, Davis claims he received $40 more in penalty assessments than is permitted under the applicable statutes.
As the Attorney General points out, Davis neglected to list Government Code sections 76104.6 and 76104.7, each of which provides matching penalties of one dollar for every ten dollars (or fraction thereof) in fines, penalties, or forfeitures as DNA penalty assessments. Applying these penalty assessments to the $50 laboratory analysis fee imposes an additional $10 fine, resulting in total penalty assessments of $180 associated with that fee. Similarly, an application of each of these assessments to the $150 drug program fee yields an additional $30 in fines, resulting in total penalty assessments of $540 on the drug program fee.
Davis did not file a reply brief and apparently concedes the DNA penalty assessments were properly applied. Although we agree with the Attorney General that DNA penalty assessments generally apply to the fines imposed in sections 11372.5 and 11372.7, we conclude they are inapplicable here because their imposition would violate the constitutional prohibition against ex post facto laws.
Government Code section 76104.6 was added by Proposition 69 and became effective November 3, 2004. Government Code section 76104.7 was added by the Legislature and became effective July 12, 2006. (Stats. 2006, ch. 69, § 18.) However, as the information and the probation report in case number CR902376 make clear, Davis committed the offense of methamphetamine possession (§ 11377) on September 30, 2004, before the DNA penalty assessments became effective. It is this offense—and this offense alone—that forms the basis for the imposition of penalty assessments.
“[A] penalty assessment cannot be imposed without violating the constitutional prohibition of ex post facto laws if (1) the defendant’s criminal act preceded its enactment; and (2) the assessment is in fact a penalty. [Citation.]” (People v. Batman (2008) 159 Cal.App.4th 587, 590.) In People v. Batman, the appellate court concluded that the DNA penalty assessment in Government Code section 76104.6 is punitive in nature. (People v. Batman, supra, at p. 591.) Thus, according to the court, “it is a punitive ex post facto law with respect to offenses committed prior to its effective date.” (Ibid.) Although the court did not address whether Government Code section 76104.7 is punitive in nature, we observe that the statute simply supplements the penalty assessment imposed by Government Code section 76104.6. Thus, the DNA penalty assessment in Government Code section 76104.7 is punitive for purposes of an ex post facto analysis for the same reasons that Government Code section 76104.6 is considered punitive.
Here, the predicate offense of methamphetamine possession was committed prior to the effective date of either Government Code section 76104.6 or section 76104.7. Accordingly, the DNA penalty assessments imposed under those sections must be stricken.
We acknowledge that the parties did not raise or address an ex post facto issue in their briefs. Ordinarily, we would request further briefing on the issue pursuant to Government Code section 68081. (See People v. Alice (2007) 41 Cal.4th 668, 679.) However, as a reviewing court we are authorized to correct an unauthorized sentence at any time. (People v. Burnett, supra, 116 Cal.App.4th at pp. 260-261.) Requesting further briefing would serve little purpose and would simply require a further, unnecessary expenditure of state resources over a matter of $40.
Any party aggrieved by this decision may of course may petition for rehearing. (Gov. Code, § 68081; People v. Taylor (2004) 118 Cal.App.4th 454, 460.)
In this connection, we observe that review of this matter would have been greatly simplified if the probation officer and the court had simply enumerated the statutory components and derivation of the penalty assessments. It should not be left to appellate counsel, the appellate courts, and the Department of Corrections and Rehabilitation to reverse engineer the derivation of an aggregate penalty assessment amount. As the court observed in People v. High (2004) 119 Cal.App.4th 1192, 1200, “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] . . . If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.]” Thus, for example, in Martinez, supra, the court required the trial court upon remand to amend the abstract of judgment to specify the “imposition of penalty assessments pursuant to [Penal Code] sections 1202.4, subd. (a)(2), 1464, and Government Code section 76000.” (Martinez, supra, 65 Cal.App.4th at p. 1523.)
Our frustration in this regard results in part from the fact that this court remanded a case to the Lake County Superior Court less than two years ago directing that court to enumerate the statutory bases for imposition of an aggregate penalty assessment associated with a lab fee and a drug program fee. (See People v. Wisterman (Mar. 29, 2007, A113346 [nonpub. opn.].) We strongly urge the trial court to direct the probation department to list the component parts and statutory authority supporting imposition of a penalty assessment. That simple exercise will avoid unnecessary expenditures of state resources on appeal and will allow the Department of Corrections and Rehabilitation to know how to apportion any funds it may collect from defendants as payment for fines.
Accordingly, upon remand the trial court shall specify the statutory basis for each of the component parts of the penalty assessments. The court shall prepare an amended abstract of judgment reflecting the aggregate penalty assessments as well as the amount of, and statutory basis for, the component parts of each penalty assessment. While we acknowledge this process may be tedious, we echo the sentiment offered by the court in People v. Taylor, apparently reflecting the view that the Legislature has made the process of calculating penalty assessments unnecessarily complicated: “Any trial court aggrieved by the complexity of these procedures may petition the Legislature for relief.” (People v. Taylor, supra, 118 Cal.App.4th at p. 460.)
Disposition
The case is remanded to the trial court with directions to specify the component parts of, and the statutory authority for, the penalty assessments levied in connection with the fees imposed under sections 11372.5 and 11372.7, and, if necessary, to modify the aggregate amounts of the penalty assessments accordingly. As explained in this opinion, the trial court shall not impose DNA penalty assessments pursuant to Government Code sections 76104.6 and 76104.7. The trial court shall prepare an amended abstract of judgment reflecting the aggregate penalty assessments as well as the amount of, and statutory authority for, the component parts of each penalty assessment. The trial court shall deliver the amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: Pollak, J., Jenkins, J.