Opinion
G054919
07-30-2018
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS DENA, JR., Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17HF0167) OPINION Appeal from a judgment of the Superior Court of Orange County, Scott A. Steiner, Judge. Affirmed in part, reversed in part. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Jorge Dena Jr. was convicted of vehicle burglary (Pen. Code, §§ 459, 460, subd. (b)) and possession of methamphetamine for sale (Health & Saf. Code, § 11378). The trial court sentenced Dena to 186 days in county jail, three years of formal probation, ordered him to pay $200 under Penal Code section 987.8, and a $50 laboratory analysis fee pursuant to section 11372.5, and Penal Code section 1464.
All further statutory references are to the Health & Safety Code, unless otherwise indicated.
Dena challenges the sufficiency of the evidence to support the jury's finding he possessed methamphetamine with the intent to sell. Dena also contends the trial court lacked a sufficient factual basis to determine the amount of reimbursement, if any, he owed for court-appointed counsel. Lastly, he argues the court penalty assessment fee should not have applied to the laboratory analysis fee. We conclude Dena was entitled to notice and a hearing under Penal Code section 987.8, subdivision (b), and therefore we remand the matter for the trial court to conduct the requisite hearing. In all other respects, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In February 2017, deputies from the Orange County Sheriff's Department conducted surveillance of a San Juan Capistrano parking garage that was the site of several auto burglaries. Deputies detained Dena for vehicle burglary.
In Dena's jacket pockets, deputies discovered a small tin with six plastic baggies containing methamphetamine, another bag of methamphetamine, and latex gloves. Inside the tin, one baggie contained 0.30 grams of methamphetamine, one contained 0.41 grams, another contained 0.44 grams, and three baggies contained 0.40 grams each. The other plastic baggie, found in a pocket on Dena's sleeve, contained methamphetamine in crystalline form and weighed between 1.65 and 2.67 grams. An information charged Dena with vehicle burglary (Pen. Code §§ 459, 460, subd. (b)), possession of methamphetamine for sale (§ 11378), and possession of methamphetamine (§ 11377, sub. (a).).
The prosecution's expert testified the amount of methamphetamine was 2.67 grams. The Orange County Crime Lab stated the methamphetamine weighed 1.65 grams.
At trial, Orange County Sheriff's Deputy Leith Chacon testified as an expert in narcotics sales. Chacon concluded the tin can containing the individually wrapped plastic baggies of methamphetamine, along with the baggie containing 2.67 grams of methamphetamine, demonstrated the drugs were possessed with the intent to sell. Chacon based his opinion on the way the drugs were packaged.
Retired Fullerton Police Lieutenant Joseph Klein testified as a defense expert. Based on the facts of the case, Klein concluded Dena could have possessed the methamphetamine for sale, but it was "more likely possessed for personal use."
The jury found Dena guilty on both counts. The court sentenced Dena to 128 days in county jail, and placed him on three years formal probation.
The court minutes on sentencing stated: "court finds that [Dena] has the ability to pay costs for counsel pursuant to Penal Code section 987[.8] in the amount of $200.00 to the County Tax Collector within 90 days." The court also required Dena to "[p]ay mandatory laboratory analysis fee of $50.00 for each specific drug offense plus penalty assessment."
II
DISCUSSION
A. Sufficient Evidence Supported Dena's Conviction for Possession of Methamphetamine for Sale
Dena contends his conviction for possession of methamphetamine for sale was not supported by sufficient evidence. We disagree.
The offense of possession of methamphetamine for sale requires the defendant to "'either (1) possess the specific intent to sell the controlled substance personally, or (2) possess the specific intent that someone else will sell the controlled substance.'" (People v. Ramos (2016) 244 Cal.App.4th 99, 105.) "Intent to sell may be established by circumstantial evidence." (People v. Harris (2000) 83 Cal.App.4th 371, 374.) "'In cases involving possession of [methamphetamine], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.]' Thereafter, it is for the jury to credit such opinion or reject it." (Id. at p. 374-375.)
The test for sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must accept logical inferences the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) To set aside the judgment for insufficiency of the evidence, it must be clear that upon no hypothesis whatever is there substantial evidence to support it. (People v. Redmond (1969) 71 Cal.2d 745, 755.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60.)
Here, the jury reasonably could rely on Chacon's opinion that Dena possessed the methamphetamine with the intent to sell. Chacon explained the six baggies found inside the tin were individually packaged and each weighed roughly the same amount, which indicated the items were prepared and separated for sale. The jury also could rely on evidence Dena possessed a baggie containing 2.67 grams of methamphetamine consisting of larger crystal shards, which, according to Chacon, a dealer would break into smaller amounts to sell. Klein's testimony did not contradict Chacon's testimony. He conceded the methamphetamine could have been possessed for sale, but "it [was] more likely possessed for personal use." Even assuming the evidence presented by the prosecution could be reconciled with an alternate hypothesis of possession for personal use, that is not enough for a reversal. (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290.) Substantial evidence supported the jury's verdict. B. The Trial Court Erred by Failing to Hold a Hearing Regarding Dena's Ability to Pay Costs for Counsel Under Penal Code Section 987 .8
Dena contends the trial court lacked a sufficient factual basis to determine the amount of reimbursement he owed for court-appointed counsel. Penal Code section 987.8, subdivision (b), provides the court may "after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost" of attorney fees. The court may order the payment of attorney fees only after a hearing as to the defendant's ability to pay. Substantial evidence must support the court's finding. (People v. Verduzco (2012) 210 Cal.App.4th 1406, 1421.)
The trial court ordered the payment of attorney fees under Penal Code section 987.8, subdivision (b), without holding a hearing on Dena's ability to pay. The Attorney General concedes the court failed to give Dena a hearing on his ability to pay for counsel. We accept the Attorney General's concession and therefore reverse the court's order requiring Dena to pay $200 in reimbursement for court-appointed counsel. We remand the matter for notice and hearing to determine whether fees under Penal Code section 987.8 are appropriate. (People v. Flores (2003) 30 Cal.4th 1059, 1068-1069.) C. The Trial Court Did Not Err in Applying Penalty Assessments to the Laboratory Analysis Fee
Dena contends the trial court erred in applying a penalty assessment to the $50 laboratory analysis fee. He maintains the laboratory analysis fee was not a penalty, but rather a mandatory fee not subject to penalty assessments. We disagree.
"Section 11372.5, subdivision (a), establishes a $50 'criminal laboratory analysis fee' for persons 'convicted of a violation of' specified statutes relating to drugs, including section 11379." (People v. Ruiz (2018) 4 Cal.5th 1100, 1105 (Ruiz).) The statute also provides: "[t]he 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." (§ 11372.5, subd. (a).)
"Section 11372.5 uses four different terms to refer to the same levy. Section 11372.5, subdivision (a), describes the levy as a 'criminal laboratory analysis fee,' 'a fine,' an 'increment,' and a penalty to be imposed 'in addition to any other penalty prescribed by law.' [Citation.] Thus, the labels used by section 11372.5, by themselves, do not clearly answer whether the levy is a fee or a fine or penalty. However, the distinction is important because '[a]dditional penalties, or assessments, are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses.' [Citation.]" (People v. Moore (2017) 12 Cal.App.5th 558, 563-564 (Moore).) The statute can be interpreted as imposing both a fee and a fine. This has led to a split of authority among the appellate courts.
We note this issue is currently pending before the Supreme Court in People v. Blanco, S241800, review granted July 12, 2017, S241800, briefing deferred pending consideration and disposition of a related issue in People v. Ruiz, S235556 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court.
A majority of appellate courts regard the laboratory analysis fee as punitive in nature and subject to penalty assessments. (People v. Sharret (2011) 191 Cal.App.4th 859, 863-864 (Sharret); People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1252; People v. Terrell (1999) 69 Cal.App.4th 1246, 1257; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 (Martinez).) In Sharret, the court analyzed several factors leading to its conclusion that the laboratory fee was "punitive in nature," including: (1) statutory language that the "laboratory analysis fee is an increment of a fine and as such it is a fine;" (2) the fact that "'[f]ines arising from [criminal] convictions are generally considered punishment;'" (3) the laboratory "fee is imposed only upon conviction of a criminal offense" and has solely a law enforcement purpose; and (4) the laboratory analysis fee "has no application in a civil context." (Sharret, supra, 191 Cal.App.4th at pp. 869-870.)
Recently, the California Supreme Court in Ruiz determined laboratory analysis fees constituted punishment for the defendant's violation of conspiracy to transport a controlled substance. (Ruiz, supra, 4 Cal.5th at p. 1112.) Other decisions view the laboratory analysis fee as a fee, not a fine, penalty, or forfeiture that would make it subject to penalty assessments. (People v. Watts (2016) 2 Cal.App.5th 223, 233, 237; People v. Vega (2005) 130 Cal.App.4th 183, 195.)
While the Ruiz decision lends support for interpreting the laboratory analysis fee as a penalty, it declined to specifically address whether the fee was subject to penalty assessments. The decision noted "[t]he Watts court held that the criminal laboratory analysis fee is not subject to these penalty assessments because it is not a 'fine, penalty, or forfeiture' as those terms are used in the applicable statutes. [Citation.] In reaching this conclusion, it broke with settled law holding to the contrary. [Citation.]." (Ruiz, supra, 4 Cal.5th at p. 1112, fn. 5.) --------
We are persuaded by the reasoning in Moore. "First, section 11372.5 provides that, to impose the criminal laboratory analysis fee, '[t]he court shall increase the total fine necessary to include this increment.' (§ 11372.5, subd. (a), italics added.) Section 11372.5 is described as a component of the total fine, indicating it is itself a fine. If the levy under section 11372.5 were not a fine, there would be no need to include this sentence to authorize the trial court to increase the total fine. Deeming the criminal laboratory analysis fee to be anything other than a fine would render the sentence mere surplusage. '"'Interpretations that lead to absurd results or render words surplusage are to be avoided.' [Citations.] [¶] Second, subdivision (a) of section 11372.5 provides the levy 'shall be in addition to any other penalty prescribed by law.' Thus, the subdivision equates the levy with other penalties. A conclusion the criminal laboratory analysis fee is not a penalty would render this phrase unnecessary. We decline to relegate this phrase to mere surplusage. Instead, we heed the express purpose of the phrase to ensure the criminal laboratory analysis fee be imposed in addition to other penalties required by law. [¶] As a fine or penalty, the levy under section 11372.5 is subject to the penalty assessments imposed by Penal Code section 1464 and Government Code section 76000." (Moore, supra, 12 Cal.App.5th at pp. 565-566; see also People v. Talibdeen (2002) 27 Cal.4th 1151; Martinez, supra, 65 Cal.App.4th at p. 1520.)
The statute's use of the term "'fee'" does not preclude a finding "that the levy is in the nature of a fine or penalty because 'the label the Legislature places on a charge, whether "fee" or "fine," is not determinative, especially where as here the Legislature used both terms.' [Citations.]" (Moore, supra, 12 Cal.App.5th at p. 564.) "[A] portion of the levy under subdivision (b) appears to serve the purpose of a fee and subdivision (c) treats the remainder as a fine. Neither purpose predominates over the other. [¶] . . . [B]ased on the language of the statute as a whole, the aim to avoid rendering any part of the section mere surplusage, the weight of the case authority including consistent California Supreme Court authority, and the fact the Legislature has not amended the statute to diverge from the holdings in those cases, we conclude the levy constitutes a fine or penalty." (Moore, supra, 12 Cal.App.5th at p. 565.)
We reject Dena's argument that the laboratory analysis fee constituted a mandatory fee that was not subject to penalty assessments. We conclude the laboratory analysis fee constitutes a fine or penalty for purposes of penalty assessments. (Moore, supra, 12 Cal.App.5th at p. 571; People v. Alford (2017) 12 Cal.App.5th 964, rev. granted Sept. 13, 2017, S243340.) The trial court did not err.
III
DISPOSITION
The judgment is remanded to the trial court for notice and hearing under Penal Code section 987.8, subdivision (b). In all other respects, the judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.