Opinion
H042370
10-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO GUIZAR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. F1450335, C1367023, C1371225 & F1450336)
Defendant Armando Guizar challenges certain fines and fees imposed following his no contest pleas to, among other crimes, attempted burglary; transportation of methamphetamine for sale; possession of marijuana; and being under the influence of methamphetamine. Defendant argues that the drug program and criminal lab analysis fees are not punitive and therefore not subject to penalty assessments. Defendant also argues, and the People concede, that the crime prevention programs fine (and attendant penalty assessments) imposed related to the attempted burglary conviction must be stricken. We previously modified and affirmed the judgment, and defendant petitioned for review. The Supreme Court has transferred the matter with instructions to consider this appeal in light of its intervening decision in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). Consistent with Ruiz, we will again strike the crime prevention programs fine and affirm the judgment as modified.
I. TRIAL COURT PROCEEDINGS
Because the facts of defendant's convictions do not affect the issue raised in this appeal, we summarize only the procedural history of the case. Defendant entered no contest pleas in four separate cases: attempted first degree burglary (Pen. Code, §§ 664, 459, and 460, subd. (a)) in case number F1450335; transporting methamphetamine (Health & Saf. Code, § 11379; unspecified references are to this Code) and possessing marijuana (§ 11357, subd. (c)) in case number F1450336; grand theft from a person (Pen. Code, § 487, subd. (c)), being under the influence of methamphetamine (§ 11550, subd. (a)), and fleeing from a police car (Veh. Code, § 2800.1) in case number C1367023; and failing to register as a sex offender (Pen. Code, § 290.015) in case number C1371225. In all four cases, defendant admitted a prior conviction for forcible sodomy (Pen. Code, § 286, subd. (c)(2)) as a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)).
The trial court sentenced defendant to a total prison term of 11 years 8 months, and imposed various fines and fees. As relevant here, the operative amended abstract of judgment states the trial court imposed a $10 crime prevention programs fine (Pen. Code, § 1202.5) and $31 in penalty assessments related to the attempted burglary conviction. The court imposed a $100 criminal laboratory analysis fee (§ 11372.5) with $310 in penalty assessments and a $300 drug program fee (§ 11372.7) with $930 in penalty assessments in case number F1450336. And the court imposed a $50 criminal laboratory analysis fee (§ 11372.5) and $155 in penalty assessments in case number C1367023. This appeal is proper despite raising solely fine and fee issues because defendant first sought to correct them in the trial court. (Pen. Code, § 1237.2.)
II. DISCUSSION
A. PENALTY ASSESSMENTS APPLY TO FEES UNDER SECTIONS 11372.5 AND 11372.7
The Supreme Court's reasoning in Ruiz forecloses the argument defendant raised in his original briefing in this appeal, and he has not filed a supplemental brief after the case was transferred from the Supreme Court.
In Ruiz, the defendant pleaded no contest to conspiring to transport a controlled substance (§ 11379, subd. (a)). (Ruiz, supra, 4 Cal.5th at p. 1104.) As part of his sentence, the trial court imposed a criminal laboratory analysis fee (§ 11372.5, subd. (a)) and a drug program fee (§ 11372.7, subd. (a)). Ruiz argued that the trial court could not impose those fees because they applied only to certain drug crimes and he was convicted merely of conspiring to violate one of those enumerated crimes. (Ruiz, at p. 1105.) The Supreme Court focused on Penal Code section 182, subdivision (a), "which states in relevant part that persons convicted of conspiring to commit a felony 'shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony.' " (Ruiz, at p. 1105.) The court identified the dispositive issue as whether the fees at issue constituted punishment such that they would be "part of 'the punishment' 'provided for' the underlying target felony." (Id. at p. 1107.) The court analyzed the statutory language, reviewed relevant legislative history, and concluded "it is clear the Legislature intended the fees at issue here to be punishment." (Id. at p. 1122.) As relevant here, the Ruiz court also disapproved a line of appellate decisions which found the fees at issue did not constitute punishment and therefore were not subject to penalty assessments, stating those decisions "broke with settled law holding to the contrary." (Id. at p. 1112, fn. 5, disapproving People v. Watts (2016) 2 Cal.App.5th 223.)
Defendant argued in his original briefing that the fees under sections 11372.5 and 11372.7 were not punishment and therefore not subject to penalty assessments (e.g., Pen. Code, § 1464, subd. (a)(1)). Ruiz disapproved the decisions defendant cited in his original briefing and unequivocally determined that the fees under sections 11372.5 and 11372.7 are punishment subject to penalty assessments. (Ruiz, supra, 4 Cal.5th at p. 1122.) Consistent with Ruiz (and our original opinion in this case), we confirm that the trial court did not err in imposing penalty assessments on the section 11372.5 and section 11372.7 fees.
B. CRIME PREVENTION PROGRAM FINE AND ASSESSMENTS
The parties agree that the crime prevention programs fine and attendant penalty assessments imposed in case number F1450335 were improperly included on the abstract of judgment because the trial court orally found it inapplicable at the sentencing hearing. The fine applies, among other things, to burglary convictions (Pen. Code, § 1202.5, subd. (a)), but "does not apply to an attempted crime." (People v. Jefferson (2016) 248 Cal.App.4th 660, 663.) As defendant was convicted of attempted burglary, the trial court was correct not to impose the crime prevention programs fine. We will order the abstract of judgment corrected to strike that $10 fine and the attendant $31 in penalty assessments.
III. DISPOSITION
The judgment is modified to strike the crime prevention programs fine (Pen. Code, § 1202.5, subd. (a)) and attendant penalty assessments. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting that modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Danner, J.