Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Nos. MCR025391, MCR032319 Jennifer R. S. Detjen, Judge.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, A.P.J., Dawson, J., and Poochigian, J.
In August 2006, in Madera County Superior Court case No. MCR025391 (case No. MCR025391), appellant Joel Garcia was placed on probation following his plea of no contest to a charge of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)).
In July 2008, in the instant case--Madera County Superior Court case No. MCR032319--an information was filed in which it was alleged that appellant committed assault with a deadly weapon upon a peace officer (Pen. Code, § 245, subd. (c)) and that he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). Also in July 2008, the court revoked appellant’s probation in case No. MCR025391 after finding that appellant committed the offense charged in the instant case.
In March 2009, a jury convicted appellant of the substantive offense in the instant case and, in a separate proceeding, appellant admitted the prior prison term enhancement allegation. In April 2009, the court imposed a prison term of six years eight months, consisting of the five-year upper term on the instant assault conviction, one year on the prior prison term enhancement, and eight months on appellant’s conviction in case No. MCR025391. The court also imposed, inter alia, a charge of $162.50, which consisted of a $50 “criminal laboratory analysis fee” pursuant to Health and Safety Code section 11372.5 (section 11372.5), plus penalty assessments and other charges, and a charge of $670, which consisted of what the court called a “previously ordered fine of $670 under Penal Code section 672.”
We sometimes refer to the criminal laboratory analysis fee as the lab fee.
It appears that although the court referred to the entire $670 amount as the Penal Code section 672 (section 672) fine, this charge actually consisted of a fine under section 672 of $200, plus penalty assessments and other charges.
The court awarded appellant presentence credit as follows: in case No. MCR025391, 108 days, consisting of 72 days of actual time credit and 36 days of conduct credit, and in the instant case, 433 days, consisting of 289 days of actual time credit and 144 days of conduct credit.
On appeal, appellant contends: (1) the court erred in imposing the section 672 fine, and (2) the imposition of the upper term on appellant’s assault conviction violated his rights under the United States Constitution. In addition, pursuant to this court’s “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010 (Supplemental Briefing Order)--discussed in greater detail below--we deem to be raised the contention that appellant is entitled to additional conduct credit under a recent amendment to Penal Code section 4019. We will strike the section 672 fine and associated other charges, and otherwise affirm.
DISCUSSION
Section 672 Fine
Appellant argues that because the court imposed a lab fee pursuant to section 11372.5, the section 672 fine was unauthorized. We agree.
Section 672 provides, in relevant part: “Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding... ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.” (Italics added.) As the parties agree, imposition of a fine pursuant to section 672 is proper only when no other fine has been imposed. (See People v. Breazell (2002) 104 Cal.App.4th 298, 302-304 (Breazell).) Therefore, the issue before us turns on the determination of whether a section 11372.5 “criminal laboratory analysis fee” is a fine within the meaning of section 672. As we explain below, we conclude the lab fee is properly characterized as a fine, and therefore the section 672 fine must be stricken.
Subdivision (a) of section 11372.5 provides: “Every person who is convicted of a violation of [certain enumerated statutes, including Health and Safety Code section 11377]... 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.” (Italics added.) Thus, “Although identified as a laboratory fee, the sum imposed pursuant to Health and Safety Code section 11372.5 is also described as an increment to a fine.” (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.)
Penal Code section 1464, subdivision (a) and Government Code section 76000, subdivision (a) mandate the imposition of penalty assessments “upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, ” and in People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 the court held, based on the language of section 11372.5 quoted above, that a lab fee is a fine subject to the Penal Code and Government Code penalty assessments, despite the statutory description of the charge as a fee. Following Martinez, the courts in People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257 and People v. Jordan (2003) 108 Cal.App.4th 349, 368 reached the same conclusion.
We also find instructive People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen). In that case the California Supreme Court addressed a closely related issue--whether the trial court has discretion to waive penalties under Penal Code section 1464. (Talibdeen, supra, 27 Cal.4th at p. 1153.) The court noted that in that case, at sentencing, “the trial court imposed... a laboratory analysis fee of $50 pursuant to Health and Safety Code section 11372.5, subdivision (a). Although 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, the trial court did not levy these penalties....” (Ibid., fn. omitted.) Thus, in Talibdeen, the court implicitly assumed that the section 11372.5 lab fee was a fine and/or penalty to which penalty assessments were required to be appended. The court went on to hold that the trial court has no discretion in this matter and the assessment of such penalties is mandatory. (Ibid.)
The People, relying chiefly on People v. Vega (2005) 130 Cal.App.4th 183 (Vega), argue that the lab fee is a fee and not a fine. In Vega, the trial court imposed a lab fee on two defendants convicted of conspiracy to commit one of the drug offenses listed in section 11372.5. However, conspiracy is not one of the enumerated offenses that triggers the application of the statute. And, the court noted, Penal Code section 182, subdivision (a) provides, subject to some exceptions not applicable in Vega, that when persons have been convicted of conspiring to commit a felony, “they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony.” (Pen. Code, § 182, subd. (a). “Thus, ” the court stated, “if the [lab] ‘fee’ is a ‘punishment’ then defendants convicted of conspiracy to commit one of the felonies specified in... section 11372.5, subdivision (a) are liable for that fee.” (Vega, supra, 130 Cal.App.4th at p. 194.)
The court held the lab fee was not punishment. The court reasoned: “[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.... In most cases the determination [of whether a charge is a fee or fine] 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.” (Vega, supra, 130 Cal.App.4th at p. 195.)
Assuming for the sake of argument that the considerations for determining whether a lab fee is punishment for purposes of Penal Code section 182 and those for determining whether a lab fee is a fine under section 672 are identical, we are not persuaded by Vega’s reasoning. Rather, we agree with the line of authority--which Vega, for the most part, does not discuss--characterizing the lab fee as a fine. We reject the position that the term “criminal laboratory analysis fee” used in the statutory language trumps all of the other indicators supporting the conclusion that the Legislature intended the lab fee as additional punishment for certain drug offenses. Despite the use of the term “fee” in the statutory language, the Legislature intended penalty assessments to be appended to drug program and laboratory analysis fees. Imposition of penalty assessments is consistent with a fine. Laboratory fees are imposed only in criminal cases, upon persons convicted of specified drug offenses. The language of section 11372.5 does not indicate that the charges are, in effect, administrative user fees. The lab fee is not expressly linked to the actual administrative costs incurred on account of defendants who are convicted of the specific offenses listed in the statute. The fees are transmitted by the courts to the county treasurer in the same way as other criminal fines, forfeitures and other monies are transmitted, and the fees collected are earmarked for specified law enforcement related purposes. (§ 11372.5, subd. (b)).
Vega makes no mention of Jordan, Terrell and Martinez, the three cases cited above that hold that a lab fee is a fine and therefore requires penalty assessments under Penal Code section 1464. Vega does discuss Talibdeen, as follows: “Support for this interpretation of the statute [i.e., that the lab fee is a fine] can also be found in People v. Talibdeen in which our Supreme Court held the penalty assessments applicable to ‘“every fine, penalty, or forfeiture”’ applied to the laboratory analysis fee in Health and Safety Code section 11372.5. [¶] Talibdeen is not controlling, however, because the court did not address the question whether the laboratory analysis fee was a punishment. Rather, the court and the parties in Talibdeen proceeded under the assumption the fee was a punishment and addressed the question whether the trial court had discretion to waive the penalty assessments.” (Vega, supra, 130 Cal.App.4th at pp. 194-195, fns. omitted.)
Therefore, because the lab fee is a fine, the court erred by imposing a section 672 fine. The proper remedy is to strike the unauthorized fine and associated penalty assessments. (Breazell, supra, 104 Cal.App.4th at p. 305.)
Appellant also argues that the court erred in imposing the lab fee because it was not “previously ordered, ” as the court stated, and therefore there was “no support in the evidence” for a “factual finding[ ] critical to [the court’s] decision.” Because we strike the lab fee for the reasons discussed, we need not address this contention.
The People also contend appellant’s challenge to the lab fee is forfeited by appellant’s failure to object in the trial court. We disagree. The trial court’s imposition of both a section 672 fine and a lab fee resulted in an “‘“unauthorized sentence[], ”’” i.e., a sentence that “‘could not lawfully be imposed under any circumstance in the particular case’” and is therefore “reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’” (People v. Smith (2001) 24 Cal.4th 849, 852.)
Imposition of Upper Term
Appellant argues that the imposition of the upper term sentence on his assault conviction was based on facts not found by a jury, and therefore violated his rights under the United States Constitution. We disagree. As we explain below, we find no federal constitutional error in the court’s selection of the upper term.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The high court reaffirmed this rule in Blakely v. Washington (2004) 542 U.S. 295 and again in Cunningham v. California (2007) 549 U.S. 270 (Cunningham). In People v. Sandoval (2007) 41 Cal.4th 825, the court held that the denial of the right to a jury trial on aggravating circumstances is reviewed to determine whether it appears beyond a reasonable doubt that if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence. (Id. at p. 838.)
Cunningham also held that the version of California’s determinate sentencing law (DSL) then in effect violated a defendant’s Sixth Amendment right to a jury trial because “circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt....” (Cunningham, supra, 270 U.S. at p. 288.) The high court concluded further that the middle term prescribed in the former DSL, not the upper term, was the relevant statutory maximum for Apprendi purposes.
In response to Cunningham, the Legislature amended the former DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2, pp. 4-6; see also People v. Sandoval, supra, 41 Cal.4th at p. 836, fn. 2.) The amended DSL remedied the constitutional infirmities in the former DSL by eliminating the middle term as the presumptive term and by allowing the trial court to exercise broad discretion in selecting the lower, middle or upper term based on reasons stated on the record. As amended, Penal Code section 1170 now provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....” (Pen. Code, § 1170, subd. (b) (§ 1170(b)).)
These amendments were suggested by the Cunningham court itself as a means of remedying the constitutional infirmities in the DSL. As the Cunningham court observed, a system which permits judges to exercise broad discretion within a statutory range “encounters no Sixth Amendment shoal.” (Cunningham, supra, 549 U.S. at 294.) Or as the Third District Court of Appeal put it, the Cunningham court suggested that “California could comply with [Sixth Amendment] jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term.” (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
In the instant case, the court sentenced appellant in April 2009, more than two years after the effective date of the DSL amendments discussed above. The court did not mention the 2007 Cunningham-inspired reform of the DSL when it pronounced sentence, but we presume it was aware of, and applied, the appropriate decisional and statutory law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Accordingly, we conclude that the court exercised the broad discretion it had under section 1170(b), as amended effective March 30, 2007, in selecting the upper terms, and, as we discuss below, the court stated on the record its reasons for doing so. Thus, appellant was sentenced in accordance with the requirements of section 1170(b), as amended, and therefore his upper term sentence did not violate his constitutional rights to jury trial or proof beyond a reasonable doubt.
Moreover, even if, as appellant argues, the trial court, in sentencing appellant, was required to comply with the law in effect prior to the effective date of the 2007 amendment to the DSL, there was no Cunningham error. Even under the former DSL, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (People v. Black (2007) 41 Cal.4th 799, 813 (Black II). In Black II, the court held the right to jury trial does not apply to the determination that defendant’s prior convictions are numerous or of increasing seriousness. (Id. at pp. 818-820.) And in People v. Towne (2008) 44 Cal.4th 63, the court held the right to a jury trial does not apply to determinations of whether the defendant served prior prison terms, whether the subject crime occurred while the defendant was on parole or probation, and (when it can be determined from the record of convictions) whether defendant’s performance on parole or probation was unsatisfactory. (Id. at pp. 79, 82.)
Here, the court cited four circumstances in aggravation in imposing the upper terms: Appellant had served a prior prison term; his prior convictions were numerous; he was on probation and parole when he committed the instant offense; and his prior performance on probation and parole had been unsatisfactory. As indicated above, under Black II and Towne there is no constitutional right to jury trial on determinations of any of these matters. Therefore, even under the former DSL, appellant’s constitutional challenge to the imposition of the upper term is without merit.
Appellant argues that Black II, Towne and Sandoval were wrongly decided. He acknowledges that this court is bound by Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but makes this argument to preserve it for federal review.
Conduct Credit
Under Penal Code section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (Pen. Code, § 2900.5, subd. (a).) In addition, Penal Code section 4019 (section 4019) provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
The court sentenced appellant in April 2009, and calculated appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the California Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender, and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in Penal Code section 1192.7, or a violent felony as defined in Penal Code section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
This court, in its Supplemental Briefing Order, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the 2010 amendment to section 4019, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles. We deem these contentions raised here.
Under Penal Code section 3 (section 3), it is presumed that a statute does not operate retroactively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘clear and compelling implication’” from any other factor(s), that it intended the amendment to operate retroactively. (Ibid.) Therefore, the amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.
We conclude further that prospective-only application of the amendment does not violate appellant’s equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofheiser (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
(The issue of whether the 2010 amendment to section 4019 applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
DISPOSITION
The judgment is modified to strike the imposition of the $670 charge consisting of the $200 Penal Code section 672 fine and associated penalty assessments and other charges. As modified, the judgment is affirmed.