Opinion
F073649
08-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY DURGIN, Defendant and Appellant.
Jonathan D. Roberts, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Nora S. Weyl, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF162431A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge. (Retired judge of the Kern County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Jonathan D. Roberts, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Nora S. Weyl, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Jeffrey Durgin was convicted of drug offenses and received a prison sentence of 15 years. We hold: (1) seven one-year sentence enhancements under Penal Code section 667.5, subdivision (b), were imposed erroneously in light of Durgin's successful petitions under the Safe Neighborhoods and Schools Act, known as Proposition 47; (2) a three-year enhancement under Health and Safety Code section 11370.2 was imposed erroneously in light of the legislation known as Senate Bill 180; and (3) penalty assessments were correctly levied upon fees imposed under Health and Safety Code sections 11372.5 and 11372.7, except that Durgin was undercharged by $5 due to an arithmetical error. We strike the erroneously-imposed enhancements, correct the arithmetical error, and remand for resentencing. Also, as it appears no abstract of judgment was ever filed in this case, we remind the trial court to file one on remand.
Subsequent statutory references are to the Penal Code unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
After a jury trial, Durgin was found guilty of three counts: (1) possession of heroin for sale (Health & Saf. Code, § 11351), (2) misdemeanor simple possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and (3) possession of drug paraphernalia (Health & Saf. Code, § 11364).
The trial court found true nine prior offense allegations made for purposes of sentence enhancements under section 667.5, subdivision (b). Three of these were for simple drug possession; two were for petty theft with a prior theft; and there was one each for transportation or sale of a controlled substance, driving in willful disregard for safety while fleeing from a pursuing police officer, second degree burglary, and possession of cocaine base for sale. For purposes of enhancements under Health and Safety Code section 11370.2, the court again found true the cocaine base prior and the transportation prior. The trial court subsequently determined, however, that Durgin had no prior for possessing cocaine base for sale; the conviction in question was actually another for simple possession, which cannot support an enhancement under Health and Safety Code section 11370.2. The court also determined that the enhancement allegations were relevant only to count 1 of the information, although they had been alleged with respect to count 2 as well. The conviction on count 2 was for a misdemeanor, so the enhancements would not apply.
At the sentencing hearing, defense counsel demonstrated that, before trial in the current case, six of the prior felony convictions had been reduced to misdemeanors pursuant to petitions under section 1170.18, a provision of Proposition 47. Defense counsel argued that these should be stricken because, as misdemeanors, they could not support enhancements under section 667.5, subdivision (b), which requires the prior offenses to be felonies. The trial court rejected this argument, stating that the propriety of a section 667.5, subdivision (b) enhancement depended only on whether the defendant served a prison term for the prior offense, not whether his offense was classified as a felony or a misdemeanor.
The court then imposed a sentence of 15 years on count 1, calculated as follows: the upper term of four years, plus eight years for eight enhancements under section 667.5, subdivision (b), and three years for the enhancement under Health & Safety Code section 11370.2, subdivision (a). The ninth enhancement under section 667.5, subdivision (b), was not imposed, and no reason was given for not imposing it. The 15-year term was to be a split sentence, with the first eight years in custody and the remainder on mandatory supervision. On counts 2 and 3, the court imposed terms of 90 days each, concurrent with the sentence for count 1, and deemed served based on presentence custody credits.
The table below summarizes the prior offenses alleged in the information, the rulings on the Proposition 47 petitions, the rulings on the motions to strike, and the enhancements applied.
The conviction dates and superior court case numbers shown here are taken from the information. They are not in all instances consistent with the dates and numbers shown in the certified dockets on which the parties relied in the trial court. There is no contention, however, that these discrepancies affect any issue in this appeal.
| Prior offense | Convictiondate | Ruling on Prop.47 petition | Ruling onmotion to strike | Enhancement |
| (1) Transportation or sale ofcontrolled substance (Health& Saf. Code, § 11379), No.BF151087A.Alleged under § 667.5, subd.(b). | 3/12/14 | 1 year (§ 667.5,subd. (b)) | ||
| (2) Simple possession ofcontrolled substance (Health& Saf. Code, § 11377, subd.(a) ), No. BF131506A.Alleged under § 667.5, subd.(b) . | 5/4/10 | Granted 12/1/2015 | Denied | 1 year (§ 667.5,subd. (b)) |
| (3) Simple possession ofcontrolled substance (Health& Saf. Code, § 11350, subd.(a) ), No. BF130723A.Alleged under § 667.5, subd.(b) . | 2/4/10 | Granted12/15/2015 | Denied | 1 year (§ 667.5,subd. (b)) |
| (4) Petty theft with a priortheft (§ 666), No.BF107094A.Alleged under § 667.5, subd.(b). | 8/9/04 | Granted12/15/2015 | Denied | 1 year (§ 667.5,subd. (b)) |
| (5) Driving in willfuldisregard for safety whilefleeing from pursuing policeofficer (Veh. Code,§ 2800.2), No. 205245.Alleged under § 667.5, subd.(b). | 10/9/98 | 1 year (§ 667.5,subd. (b)) | ||
| (6) Petty theft with a priortheft (§ 666), No.SC39733A.Alleged under § 667.5, subd.(b) | 12/11/96 | Granted 2/26/16 | Denied | 1 year (§ 667.5,subd. (b)) |
| (7) Simple possession of acontrolled substance (Health& Saf. Code, § 11350, subd.(a)), No. C24643-01. | 7/24/92 | Granted 2/26/16 | Denied | 1 year (§ 667.5,subd. (b)) |
| Alleged under § 667.5, subd.(b). | ||||
| (8) Simple possession of acontrolled substance (Health& Saf. Code, § 11350, subd.(a) , No. C22671 [ascorrected].Alleged under § 667.5, subd.(b) . | 7/25/90 | Granted 2/26/16 | Denied | 1 year (§ 667.5,subd. (b)) |
| (9) Second degree burglary(§ 460, subd. (b)), No.186939.Alleged under § 667.5, subd.(b). | 4/1/96 | None | ||
| (10) Transportation or saleof controlled substance(Health & Saf. Code, §11379), No. BF151087A.(Same as prior No. 1above.)Alleged under Health & Saf.Code, § 11370.2, subd. (a). | 3/12/14 | 3 years (Health& Saf. Code, §11379) | ||
|---|---|---|---|---|
| (11) Simple possession of acontrolled substance (Health& Saf. Code, § 11350, subd.(a), No. C22671 [ascorrected]. (Same as priorNo. 8 above.)Alleged under Health & Saf.Code, § 11370.2, subd. (a). | 7/25/90 | Granted2/26/16 | Granted:offense noteligible forenhancement | None |
"Since this appeal does not raise any issue regarding the facts of the underlying offense[s] we will omit the traditional statement of facts." (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
DISCUSSION
All the questions presented in this appeal concern pure issues of law, so we review them under the de novo standard. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) I. Penal Code section 667.5 , subdivision (b) enhancements
Durgin challenges all the enhancements imposed under section 667.5, subdivision (b). We must interpret that statute in light of the relevant provisions of Proposition 47 codified in section 1170.18.
In interpreting statutes, our objective is "to ascertain and effectuate legislative intent." (People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) To the extent that the language in a statute may be unclear, we look to legislative history and the statutory scheme of which the statute is a part. (People v. Bartlett (1990) 226 Cal.App.3d 244, 250.) We look to the entire statutory scheme in interpreting particular provisions "so that the whole may be harmonized and retain effectiveness." (Clean Air Constituency v. State Air Resources Bd. (1974) 11 Cal.3d 801, 814.) "In the end, we '"must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences."'" (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. (People v. Shabazz (2006) 38 Cal.4th 55, 67 (Shabazz).) When two statutes regarding the same subject matter appear to conflict, our task is to harmonize the statutes. (Drouet v. Superior Court (2003) 31 Cal.4th 583, 593 (Drouet).) The same principles apply to the interpretation of voter initiatives. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.)
A. Allegation Nos. 2-4, 6-8
Durgin argues that the prior offenses that were reduced to misdemeanors pursuant to Proposition 47 petitions (Nos. 2-4 and 6-8) cannot support enhancements under section 667.5, subdivision (b), because such enhancements can only be based on prior felonies. The People agree, as do we.
The law enacted by the voters' approval of Proposition 47 requires the court, upon the petition of a defendant who has served a sentence, to designate as a misdemeanor an offense that was a felony at the time of conviction but that would have been a misdemeanor had Proposition 47 been in effect at that time. (§ 1170.18, subds. (f)-(g).) Where the petitioner is currently serving the sentence for a felony, and the court grants the petition, the court recalls the sentence and imposes a misdemeanor sentence in its place. (§ 1170.18, subds (a)-(b).) When either type of petition is granted, the offense of the conviction thereafter "shall be considered a misdemeanor for all purposes," except that a resentencing cannot allow the convict to recover his or her rights regarding firearms. (§ 1170.18, subd. (k).)
Section 667.5, subdivision (b), provides for a one-year sentence enhancement on a new felony conviction resulting in a prison sentence where the defendant has previously been convicted of a felony and served a prison term. The enhancement is imposed for "each prior separate prison term ... for any felony." Under the so-called "washout" provision, however, the enhancement is not imposed if the defendant is free of both felony convictions and incarceration in prison for five years following release from the previous incarceration. (§ 667.5, subd. (b).)
Both parties rely on People v. Abdallah (2016) 246 Cal.App.4th 736. Abdallah was convicted of several felonies. At the time of his conviction of these offenses, he had two prior felony convictions. He had a felony conviction in 2002 for which he served a prison sentence and another in 2011 for which he was granted probation. After his conviction on the current offenses but before sentencing, the 2011 prior was reduced to a misdemeanor pursuant to a Proposition 47 petition, with the result that he had no felony convictions or prison terms for more than five years after his release from prison on the 2002 conviction. In spite of this, the trial court imposed a one-year enhancement for the 2002 prior, based on section 667.5, subdivision (b). (Abdallah, supra, 246 Cal.App.4th at pp. 740-741.) The Court of Appeal ordered the enhancement stricken. (Id. at p. 749.) It held that because a felony conviction reclassified as a misdemeanor pursuant to a Proposition 47 petition becomes a misdemeanor for all purposes, Abdallah's reclassified 2011 prior (for which he did not receive a prison term) was no longer a felony for purposes of section 667.5, subdivision (b) at the time he was sentenced on the current offenses. This meant the washout provision was applicable and therefore the enhancement could not be imposed. (Abdallah, supra, at pp. 743-746.)
The Abdallah court relied in part on People v. Park (2013) 56 Cal.4th 782. (Abdallah, supra, 246 Cal.App.4th at p. 745.) In Park, the defendant pleaded guilty in 2003 to felony assault with a deadly weapon. He was granted probation. After he completed his probation, the court applied section 17, subdivision (b)(3), to reduce the assault to a misdemeanor. (Park, supra, 56 Cal.4th at p. 787.) Section 17, subdivision (b), provides that when it is used in this way to reduce a felony conviction to a misdemeanor, the offense "is a misdemeanor for all purposes," the same language used in Proposition 47. When the defendant was subsequently convicted of new offenses, however, the court used the 2003 offense as the basis of a prior felony enhancement under section 667, subdivision (a). (Park, supra, 56 Cal.4th at p. 788.) The Supreme Court held that this was error. It observed, among other things, that "courts have long recognized that reduction of a wobbler to a misdemeanor under what is now section 17(b) generally precludes its use as a prior felony conviction in a subsequent prosecution." (Id. at p. 794.) Reclassification under Proposition 47 is comparable. There is no basis, in either situation, for taking "misdemeanor for all purposes" at anything other than face value.
We agree with the holding in Abdallah and subsequent cases reaching similar conclusions (see People v. Call (2017) 9 Cal.App.5th 856, 862; People v. Kindall (2016) 6 Cal.App.5th 1199, 1205), and we agree with the parties' view that this holding determines the outcome on this issue here. The trial court, however, took the position that reclassification of a prior offense is not an obstacle to applying section 667.5, subdivision (b). Its view was that the true basis of a section 667.5, subdivision (b) enhancement is a prior prison term, and a prior prison term is not erased by reclassification of the underlying offense as a misdemeanor. This argument overlooks the fact that section 667.5, subdivision (b), expressly requires the prior prison term to have been imposed "for any felony" (italics added). A section 667.5, subdivision (b) enhancement is imposed only for a prior offense that (1) is a felony, and (2) was committed under circumstances and in a manner that warranted a prison term. Since felony status is one of the requirements, logic bars a trial court from imposing an enhancement pursuant to this provision based on a prior offense that the court "shall ... consider[] a misdemeanor for all purposes." (§ 1170.18, subd. (k), italics added.)
In sum, we hold that the offenses in allegation Nos. 2-4 and 6-8 were misdemeanors for all purposes and therefore could not be the basis of enhancements under section 667.5, subdivision (b).
B. Allegation No. 5
The parties agree that although the offense in allegation No. 5 was not reclassified, no enhancement can be imposed on it under section 667.5, subdivision (b), because of the effect of the reclassification of the other prior offenses. These reclassifications mean Durgin remained free of felony convictions for five years after his release from custody on the offense in allegation No. 5, so that offense "washes out" for purposes of this enhancement. Ultimately we agree, but, as we will explain, there is an obstacle to this conclusion that must be overcome.
Section 667.5, subdivision (b), provides in its entirety as follows:
"Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony; provided that no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the defendant
remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended. A term imposed under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement."
The requirements for imposition of an enhancement under this statute may be summarized thus: The defendant (1) was convicted of a felony; (2) was imprisoned as a result; and (3) after being released from that imprisonment, failed to remain free of both felony convictions and custody in prison or in jail under section 1170, subdivision (h), for five years. At issue here is the application of the last requirement, often referred to as the washout provision because it allows prior felonies to be "washed out" or disregarded.
The parties agree that the offense in allegation No. 5 washes out. Yet it is apparent from the probation officer's report that even disregarding Durgin's subsequent convictions reclassified as misdemeanors, Durgin was not free of prison custody for an unbroken five-year period after committing the offense in allegation No. 5. Section 665.7, subdivision (b), by its literal terms, allows a prior felony to wash out only if the defendant is free of both felony convictions and prison custody for five years after being released. Why does this not mean the enhancement remains valid?
We think this is one of those instances in which literal construction should not prevail because it is not consistent with legislative intent. (Shabazz, supra, 38 Cal.4th at p. 67.) When two statutes regarding the same subject matter appear to conflict, as mentioned above, our task is to harmonize the statutes. (Drouet, supra, 31 Cal.4th at p. 593.) As we will explain, the intents manifested in section 667.5 and in Proposition 47 can be harmonized only by rejecting the literal interpretation of the washout provision.
From the key features of section 1170.18, it is evident that a goal of Proposition 47 is not only to relieve defendants of the burden of having felony convictions on their records for offenses no longer deemed serious enough for felony status, but also to relieve them of felony sentences for these offenses. For section 1170.18 does not only mandate that reclassified felonies be treated as misdemeanors for all purposes. (§ 1170.18, subd. (k).) It also calls for felony sentences to be recalled and replaced with misdemeanor sentences, in cases in which the defendant is still serving a felony sentence, except where the court finds that resentencing would pose an unreasonable risk to public safety. (§ 1170.18, subds. (a)-(b).) When the sentence has already been completed, the law requires the offense simply to be reclassified. (§ 1170.18, subds. (f)-(g).) From these provisions, we infer that the voters intended successful Proposition 47 petitioners to be relieved of the effects of their former felony convictions, including the effects of the sentences imposed for those convictions. The voters' legislative judgment was that, for the offenses identified in a successful Proposition 47 petition, neither felony status nor felony punishment is appropriate.
That intent conflicts with the literal terms of section 667.5, subdivision (b), since those terms literally construed bar application of the washout provision to those who served prison time during the five-year washout period, even though the associated felony convictions must be considered as misdemeanors. Yet construing the washout provision nonliterally, to conform to the intent of Proposition 47, would not undermine the intent of the washout provision. The manifest purpose of the reference to being free of incarceration during the washout period is to cause the washout period to begin to run from the prisoner's release date, not the conviction date, in those instances in which the prior felony resulted in a prison term. This in turn is intended to ensure that a defendant convicted of a felony does not commit another felony for five years after being released, as opposed to five years after being convicted. There is no reason to suppose the Legislature wanted to cover the contingency of a free-floating prison term with no associated felony—the anomaly to which Proposition 47 gives rise, but which presumably was unthought of when section 667.5 was enacted.
Lest our approach raise jurisprudential eyebrows by seeming to handle statutory language too roughly, we cite People v. Valencia (2017) 3 Cal.5th 347 (Valencia), in which our Supreme Court recently subordinated literal interpretation to legislative intent in a striking manner. Valencia involves the impact of Proposition 47 on the Three Strikes Reform Act, also known as Proposition 36, approved by the voters two years before Proposition 47. Like Proposition 47, Proposition 36 provides a procedure by which certain prisoners can apply to the superior court for a sentence reduction in accordance with the new law adopted by the voters. (§§ 1170.126, subds. (a), (b), 1170.18, subds. (a), (b).) Also like Proposition 47, Proposition 36 gives the superior court discretion to deny resentencing if it "determines that resentencing the petitioner would pose an unreasonable risk to public safety." (§§ 1170.126, subd. (f), 1170.18, subd. (b).) The two statutes employ these same words. Proposition 47, however, adds this:
"As used throughout this code, 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [§ 667, subd. (e)(2)(C)(iv)]." (§ 1170.18, subd. (c), italics added.)
"[T]his code" is the Penal Code, which, of course, contains Proposition 36. Section 667, subdivision (e)(2)(C)(iv) contains a list of specified offenses, those known as super strikes. Surely it follows that courts applying Proposition 36 will now be required to limit their consideration to whether a prisoner poses an unreasonable risk of committing a super strike, just like courts applying Proposition 47? No! The Supreme Court held, among other things, that it would be unreasonable to believe voters casting ballots on Proposition 47—which involves low-level offenders whose crimes are now deemed misdemeanors—understood they would be easing the release of third strikers serving life sentences. This was held to be so despite the normal presumption that voters are aware of existing law. (Valencia, supra, 3 Cal.5th at pp. 357, 369-370.) Valencia demonstrates that the principle on which we rely—that legislative intent is not to be thwarted by a literal interpretation of statutory words conflicting with it—is alive and well.
To summarize: (1) A goal of Proposition 47, when a prior offense is found pursuant to a Proposition 47 petition not to be worthy of treatment as a felony, is to relieve the defendant of the burden of a felony conviction, including the burden of a felony sentence. (2) Despite its literal terms, section 667.5, subdivision (b), manifests no intent inconsistent with this goal of Proposition 47. (3) Therefore, the washout provision of section 667.5, subdivision (b), should be construed to allow a prior felony to wash out provided it is followed by a five-year period free of felony convictions and incarceration in prison or in county jail pursuant to section 1170, subdivision (h), except that such incarceration shall not prevent the prior felony from washing out if it was imposed for an offense that has been designated a misdemeanor or resentenced as a misdemeanor pursuant to a petition filed under section 1170.18.
For these reasons, it is appropriate to view the prior felony in allegation No. 5 as being followed by the necessary five-year washout period. The enhancement based on that prior offense must be stricken. II. Health & Safety Code section 11370.2 enhancement
The parties also agree that a recent amendment to Health and Safety Code section 11370.2, known as Senate Bill 180, means we must reverse the three-year enhancement based on allegation No. 10, the prior conviction for transportation or sale of a controlled substance under Health and Safety Code section 11379.
At the time of Durgin's sentencing in the current case, Health and Safety Code section 11370.2, subdivision (a), read as follows:
"Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate,
Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment."
Senate Bill 180, effective January 1, 2018, reduced the list of prior offenses qualifying for the enhancement to just one, Health and Safety Code section 11380 (drug offense using minor as agent). (Stats. 2017, ch. 677, § 1.) Thus, Durgin's prior violation of Health and Safety Code section 11379 does not qualify under the new law. If, as the parties agree, Senate Bill 180 applies retroactively to cases still pending on direct appeal on the effective date of the new law, then Durgin's three-year enhancement must be reversed.
The parties are correct. In general, amendments to the Penal Code apply prospectively only, unless they state otherwise. (§ 3.) According to In re Estrada (1965) 63 Cal.2d 740, however, the rule is reversed when an amendment reduces the punishment for criminal conduct: then the amendment presumptively applies retroactively to all cases not yet final on its effective date, unless the amendment includes a savings clause declaring it to be prospective only. The reason for this rule is that when the Legislature reduces the punishment for an offense, it is presumed to believe the offense no longer merits the greater punishment, and this would be so even if the defendant was convicted and sentenced before the amendment became effective. (Id. at pp. 744-745; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-309 [reaffirming and applying Estrada].) Senate Bill 180 reduces the punishment for violating Health and Safety Code section 11351 with a prior conviction under Health and Safety Code section 11379. The People agree with Durgin—as do we—that there is nothing in Senate Bill 180 that would overcome the Estrada presumption.
In holding that Senate Bill 180 applies to all cases not yet final on its effective date, we agree with a decision from the Fourth District Court of Appeal, People v. Millan (2018) 20 Cal.App.5th 450, 455. III. Penalty assessments
For each of counts 1 and 2, Durgin's sentence included a criminal laboratory analysis fee of $50 (Health & Saf. Code, § 11372.5) and a drug program fee of $100 (Health Saf. Code, § 11372.7). To these amounts, the court applied penalty assessments totaling $925, calculated as follows:
| Count | Penalty assessment | Total | ||
|---|---|---|---|---|
| 1 | ||||
| $50 | $100 | |||
| Gov. Code,§ 76000, | 35 | 70 | ||
| subd. (a) | ||||
| 5 | 10 | |||
| 20 | 40 | |||
| Gov. Code, § 70372, | 50 | |||
| subd. (a) | ||||
| 10 | 20 | |||
| § 76000.15 | ||||
| Pen. Code, § 1465.7 | 10 | 20 | ||
| Subtotal | 310 | 460 | ||
| 2 | ||||
| $50 | $100 | |||
| Gov. Code,§ 76000, | 35 | 70 | ||
| subd. (a) | ||||
| 5 | 10 | |||
| 20 | 40 | |||
| Gov. Code, § 70372, | 50 | |||
| subd. (a) | ||||
| 10 | 20 | |||
| § 76000.15 | ||||
| Pen. Code, § 1465.7 | 10 | 20 | ||
| Subtotal | 155 | 310 | 465 |
| Total | $925 |
|---|
The total amount the trial court imposed at the sentencing hearing reflects this subtotal, but it is arithmetically incorrect. The correct amount is $155. The $5 discrepancy constitutes an unauthorized sentence, which we order corrected in the disposition below. The sentencing minute order shows the correct amount, but the court's oral statement controls over the minute order, and no abstract of judgment was filed, so a correction is necessary.
Each of the penalty assessment statutes listed in the second column above states that an assessment is to be imposed in a given proportion to an underlying figure that has been imposed pursuant to some punitive law. For instance, Government Code section 76000, subdivision (a), states that its penalty assessment is to be imposed in the amount of $7 for every $10 of every "fine, penalty, or forfeiture" imposed under another statute as a result of a criminal conviction. Thus, an assessment of $35 under Government Code section 76000, subdivision (a), applies to the fee of $50 imposed under Health and Safety Code section 11372.5 for each conviction of the offenses listed there.
Durgin argues that none of these penalty assessments apply to amounts imposed under Health and Safety Code sections 11372.5 and 11372.7 because those statutes impose fees, which are not intended as punishment, but as administrative funding mechanisms for the programs for which they raise money. The People argue that Health and Safety Code sections 11372.5 and 11372.7 impose fines, which are part of a defendant's punishment, so the penalty assessments apply.
The People also argue that Durgin forfeited this issue by failing to raise it in the trial court. Durgin's argument, however, is that the amounts in question were unauthorized. We can and should correct an unauthorized sentence any time it comes to our attention, regardless of whether an objection was ever made or not. (In re Harris (1993) 5 Cal.4th 813, 842.)
Our Supreme Court recently addressed the problem of the punitive or nonpunitive status of Health and Safety Code sections 11372.5 and 11372.7 in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). The context was slightly different from the context here, but it seems to us the court's holding resolves our issue.
The question in Ruiz was whether the lab and program fees of Health and Safety Code sections 11372.5 and 11372.7 should be imposed for a conviction for a conspiracy to violate Health and Safety Code section 11379, as opposed to a violation of the statute itself. A conspiracy to commit a felony is "punishable in the same manner and to the same extent as is provided for the punishment" of the underlying felony. (§ 182, subd. (a).) The question, therefore, was whether Health and Safety Code sections 11372.5 and 11372.7 (which refer to violating Health and Safety Code section 11379, but not conspiring to violate it) impose punishments or instead amount to nonpunitive administrative fees. (Ruiz, supra, 4 Cal.th at pp. 1103-1104.)
After a detailed examination of the statutory language and the legislative history of Health and Safety Code sections 11372.5 and 11372.7, the Supreme Court concluded that the Legislature intended the payments demanded by those statutes as punishments. The Legislature's intent is the dispositive consideration, as the court explained; whether the payments are called fines or fees may be evidence of the Legislature's intent, but it is not controlling. (Ruiz, supra, 4 Cal.th at pp. 1108-1113.)
As this summary indicates, the Supreme Court in Ruiz did not address the precise issue presented here, i.e., whether penalty assessments apply to Health and Safety Code sections 11372.5 and 11372.7. The court noted that this issue was pending before it in a number of cases. (Ruiz, supra, 4 Cal.th at p. 1112.) The parties had raised it in Ruiz, and the court expressly declined to decide it. (Id. at p. 1122.)
Nevertheless, the holding of Ruiz does clearly point to a resolution of the problem we face here, at least as the parties have framed it. The parties both contend that the solution depends on whether the two Health and Safety Code sections are punitive or not. If they are punitive, then, according to the parties' framing, they impose fines and the penalty assessments apply; if they are not punitive, they impose fees and the penalty assessments do not apply. Since the Supreme Court holds they are punitive, it follows by the parties' reasoning that the penalty assessments apply. Theoretically, the Supreme Court could reach a different conclusion if and when it decides the question presented here, for, conceivably, some other framing would lead to a different conclusion. But no other framing comes to mind. IV. Abstract of judgment
For unknown reasons, there is no abstract of judgment in the record of this case. When we requested the abstract, the clerk of the superior court responded with an affidavit stating that no abstract had been filed. It will, of course, be necessary for the trial court to file an abstract of judgment on remand.
DISPOSITION
All of the sentence enhancements that were imposed are stricken, except for the one-year enhancement based on allegation No. 1. The total of the penalty assessments levied upon the fees imposed under Health and Safety Code sections 11372.5 and 11372.7 is increased from $925 to $930, for the reason stated in footnote 3 above. The case is remanded to the trial court for resentencing. The trial court shall prepare and file an abstract of judgment after resentencing, and shall forward it to the appropriate correctional authorities. The balance of the judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------