Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F14177
ELIA, J.Freddie Phillip Guzman appeals from an order granting probation following defendant's guilty plea to possession for sale of cocaine in violation of Health and Safety Code section 11351 and the denial of a renewed motion to suppress and a Penal Code section 995 motion challenging the denial of his motion to suppress at the preliminary hearing. (Pen. Code, § 1538.5, subd. (m).) The court ordered defendant to pay certain fees and a restitution fine.
All further statutory references are to the Penal Code unless otherwise specified. Section 1538.5, subdivision (m), provides: "The proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence." "[A] challenge to a ruling on a section 995 motion brought to review the magistrate's ruling on a motion to suppress at the preliminary hearing, . . . falls directly within the ambit of subdivision (m) [of section 1538.5]." (People v. Lilienthal (1978) 22 Cal.3d 891, 897.)
The evidence against defendant was seized pursuant to a search warrant based upon information provided by a confidential informant and contained in the sealed portion of the supporting affidavit. The magistrate held an in camera hearing in ruling on defendant's motion to suppress at the preliminary hearing. On appeal, defendant requests this court to overturn his conviction and direct the trial court to conduct a proper in camera review consistent with People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). He also asks this court to strike the drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) because the clerk's minutes incorrectly reflected imposition of such fee and to reduce the laboratory analysis fee from $175 to $135 (Health & Saf. Code, § 11372.5, subd. (a)) because it was miscalculated.
Defendant does not assert on appeal that either the drug program fee or the laboratory analysis fee must be stricken because it violated a negotiated plea bargain or because the court failed to advise him of the fee prior to his plea.
We find no basis for reversal under Hobbs. The People do not dispute the claimed fee errors on appeal but we do not accept the People's concessions, which are mistaken.
A. Procedural History
A criminal complaint filed against defendant on October 16, 2006 alleged two felonies committed on or about October 6, 2006: possession for sale of a controlled substance, namely cocaine, in violation of Health and Safety Code section 11351 (count one) and possession for sale of a controlled substance, namely methamphetamine, in violation of Health and Safety Code section 11594 (count two). The complaint also contained a special allegation that defendant was personally armed with a firearm within the meaning of section 12022, subdivision (c), during the commission of both offenses.
On November 22, 2006, defendant filed a motion to suppress evidence under section 1538.5, subdivision (a)(1)(B)(iii) or (a)(1)(B)(iv), or to dismiss on due process grounds, to be heard at the preliminary hearing scheduled for December 4, 2006. (See § 1538.5, subd. (f).) In support of the motion, defendant argued that the sealed portion of the search warrant affidavit was improperly sealed, the search warrant authorizing the search of his residence and person was not supported by probable cause, and principles of due process required dismissal if the information necessary to challenge probable cause was not disclosed.
Section 1538.5 provides in pertinent part: "(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: . . . [¶] (B) The search or seizure with a warrant was unreasonable because any of the following apply: . . . [¶] (iii) There was not probable cause for the issuance of the warrant. [¶] (iv) The method of execution of the warrant violated federal or state constitutional standards."
On December 4, 2006, the preliminary examination commenced. Judge Samuel Stevens, acting as magistrate (§ 808; Cal. Const., art. 1, § 14), conducted an in camera hearing in response to defendant's motion. He reviewed the sealed portions of the search warrant affidavit. Back in open court, the magistrate announced that it had "determined that . . . part of this is available to the defense, part of it isn't . . . ." He explained that the prosecutor was "going to create a redacted copy and I will review it and then it will be submitted to you." The preliminary examination was continued.
On December 26, 2006 defendant filed another motion to suppress evidence under section 1538.5, subdivision (a)(1)(B)(iii) or (a)(1)(B)(iv), or to dismiss on due process grounds. The motion challenged the still undisclosed portion of the redacted search warrant affidavit that defendant believed contained "the entire summary of facts that presumably show[ed] probable cause for issuance of the warrant." The newly disclosed parts of the sealed search warrant affidavit had provided limited information about the confidential informant and his reliability.
In support of the motion, defense counsel argued that it had not been demonstrated that the privilege established by Evidence Code section 1041, which may protect the identity of an informant providing confidential information, applied to the undisclosed contents of the search warrant affidavit. Defense counsel further contended that, even if the confidential informant's identity was privileged, defendant was entitled to know the facts, other than identity, upon which the government was relying to establish probable cause. Counsel also maintained that dismissal was required under principles of due process if the sealing of the search warrant affidavit deprived him of the ability to challenge the constitutionality of the search warrant. The People filed opposition to defendant's motion.
At the hearing on the motion on January 17, 2007, Judge Stevens told the parties: "I didn't look specifically what the Hobbs case is, but I'm assuming the Hobbs case from your points and authorities, Ms. August [defense counsel], is the process the Court would go through on a motion to, in effect, enforce the disclosure of a confidential informant and it's essentially what I did." Defense counsel made clear that the motion was simply a motion to quash and the court was not being asked to disclose the identity of the confidential informant but only to disclose the information presented to establish probable cause. The judge told defense counsel that in this case it was "the same thing." The judge indicated that it had satisfied itself that defendant was entitled to disclosure of neither the identity of the confidential informant nor any additional part of the sealed affidavit. The judge denied defendant's motion to suppress evidence or to dismiss on due process grounds. The judge also held defendant to answer on both felony charges.
An information filed on January 19, 2007 charged defendant with the same crimes, allegedly committed on or about October 6, 2006, and contained the same special allegation as the criminal complaint. Defendant pleaded not guilty to both counts.
On March 6, 2007, defendant filed a motion to suppress evidence under section 1538, subdivision (i), or to dismiss on due process grounds or to unseal the search warrant affidavit. The motion indicated that the defense had submitted a list of questions under seal for the court to address during an in camera hearing pursuant to Hobbs. Defendant also moved to set aside the information under section 995 on essentially the same grounds raised in his motion to suppress evidence or dismiss on due process grounds. The People responded to both motions. The prosecution noted that the affiant had already been questioned in camera but indicated the officer could be made available for an additional hearing if the court would like to question him further.
Section 1538.5, subdivision (i), states in part: "(i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, . . ., the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial[.] . . . If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing."
On March 19, 2007, the Judge Stevens heard defendant's section 1538.5 motion. He indicated, as he went through the defendant's list of questions "fairly quickly," that the questions were "in substance" "all covered with a few exceptions" in the previous in camera hearing on December 4, 2006. Without holding further in camera proceedings or apparently reviewing the transcript of the prior in camera proceedings, the Judge Stevens denied the motion.
On March 20, 2007, Judge Jeff Almquist heard defendant's section 995 motion. He indicated that he had reviewed the transcripts of the preliminary examination and the disclosed portions of the search warrant. Judge Almquist stated that he was "obligated to assume that the in camera proceedings conducted by Judge Stevens were regularly held and the determination [on defendant's motion to suppress] was based on an adequate showing in the sealed portion of the search warrant" and there was no longer a Hobbs issue. The court denied the section 995 motion "since the entire attack [was] on the search warrant" and the information produced at the preliminary examination was sufficient to hold defendant to answer.
On March 22, 2007, defense counsel announced they had resolved defendant's case. The prosecutor explained that there would be a plea to count one, the remaining count would be dismissed, and defendant would be ordered to serve nine months in jail concurrently with the jail time to be imposed in another case. The court informed defendant that he would be subject to probation drug terms and "fines on the felony matter of $220 payable through probation." After receiving admonishment of his rights and waiving them, defendant pled guilty to count one (Health & Saf. Code, § 11351). The court granted probation and dismissed count two and the special allegation.
A separate written probation order, dated March 22, 2007 and signed by the court, specified a $20 security fee, a $175 lab analysis fee (Health & Saf. Code, § 11372.5), a $150 drug program fee, and a $200 restitution fine (§ 1202.4). It also ordered defendant to pay a monthly probation services fee of $25 (§ 1203.1b) but stayed the order until defendant was gainfully employed. At the bottom of the order, defendant's signature appears below the following statement: "I understand and agree to fulfill the terms and conditions as set forth above."
The clerk's minutes, dated March 22, 2007, state probation is granted subject to specified conditions, including payment of the following: a $20 court security assessment fee, a $175 lab analysis fee (Health & Saf. Code, § 11372.5), a $150 drug program fee (Health & Saf. Code, § 11372.7), and a $200 restitution fine (§ 1202.4). The minute order also directed defendant to pay a monthly probation service fee of $25 but stayed payments "until defendant is gainfully employed."
Defendant does not challenge the restitution fine or the court security fee. Section 1202.4 requires a restitution fine of not less than $200 if a person is convicted of a felony. (§ 1202.4, subd. (b)(1).) Section 1465.8, subdivision (a)(1), provides: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . ." (See § 1463, subd. (h) [defining term "offense" to include felony].)
B. Hobbs
Defendant asserts that his conviction must be overturned because the superior court failed to follow the in camera review procedures set forth by People v. Hobbs, supra, 7 Cal.4th 948. The court in Hobbs described the in camera procedures to be used where, "due to the sealing of any portion or all of the search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing required . . . to initiate a subfacial challenge (by moving to traverse the warrant), or otherwise make an informed determination whether sufficient probable cause existed for the search (in consideration of a motion to quash the warrant) . . . ." (Id. at pp. 971-972, fn. omitted.) Hobbs states that, under such circumstances, a court "must take it upon itself both to examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires." (Id. at p. 973.) "The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant's reliability." (Ibid.) "[T]he lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. [Citations.]" (Ibid.)
Under Hobbs, the court must first "determine whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informant's confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing his or her identity." (Id. at p. 973.) If the affidavit is found to have been properly sealed and the defendant has moved to traverse the warrant, the court next determines whether "there is a reasonable probability that defendant would prevail on the motion to traverse—i.e., a reasonable probability, based on the court's in camera examination of all the relevant materials, that the affidavit includes a false statement or statements made knowingly and intentionally, or with reckless disregard for the truth, which is material to the finding of probable cause . . . ." (Id. at p. 974.) "[I]f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant (Pen.Code, § 1538.5), the court should proceed to determine whether, under the 'totality of the circumstances' presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was 'a fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.] In reviewing the magistrate's determination to issue the warrant, it is settled that 'the warrant can be upset only if the affidavit fails as a matter of law [under the applicable standard announced in Illinois v. Gates . . .] to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony. [Citations.]' (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150 . . . .)" (Id. at p. 975.)
Defendant asserts that the trial court failed to follow the procedures established by the California Supreme Court in Hobbs. He specifically complains that the superior court failed to ask the affiant the written questions that he submitted in conjunction with his renewed section 1538.5 motion and it summarily denied his renewed section 1538.5 motion and his section 995 motion "without reviewing the transcripts from the in camera hearing" for compliance with Hobbs. Defendant asks this court to reverse his conviction and remand the case with directions to conduct a proper in camera review pursuant to Hobbs.
Although in this appeal defendant refers to his motions to suppress and traverse the warrant, he never moved to traverse the warrant. Consequently, neither the magistrate nor the court was required to comply with the Hobbs procedures applicable to a motion to traverse a warrant. Defendant's complaints concerning the sealing of a portion of the search warrant affidavit are cognizable on appeal pursuant to section 1538.5, subdivision (m), to the extent they are directed to the legality of the search and seizure. (Id. at p. 956.)
Defendant has not cited any authority establishing that a superior court is required to repeat in camera proceedings when it considers a renewed motion to suppress in the absence of any new evidence (see § 1538.5, subd. (i)) or when it considers a section 995 motion challenging the magistrate's denial of a motion to suppress at the preliminary hearing. When a defendant renews a section 1538.5 motion predicated solely upon the preliminary hearing transcript, the superior court acts as a reviewing court. (See § 1538.5, subd. (i); People v. Fulkman (1991) 235 Cal.App.3d 555, 560; People v. Ramsey (1988) 203 Cal.App.3d 671, 678-679.) The same is true when a defendant seeks review of a suppression motion made at the preliminary hearing by way of a section 995 motion. (People v. Laiwa (1983) 34 Cal.3d 711, 718.)
A court must set aside an information on a defendant's motion under section 995 if "the defendant had been committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) "A defendant is held to answer without reasonable or probable cause within the meaning of section 995 of the Penal Code when the only substantial evidence supporting his commitment has been obtained in violation of the Fourth Amendment." (People v. Scoma (1969) 71 Cal.2d 332, 335.) "[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.]" (People v. Laiwa (1983) 34 Cal.3d 711, 718.)
While Hobbs stated that "[d]efense counsel should be afforded the opportunity to submit written questions, reasonable in length, which shall be asked by the trial judge of any witness called to testify at the proceeding" (People v. Hobbs, supra, 7 Cal.4th at p. 973), the record does not show that defense counsel was deprived of such opportunity with respect to the in camera hearing held during the preliminary examination. Defendant cited no authority requiring a superior court to conduct further in camera proceedings pursuant to Hobbs when considering a renewed motion to suppress predicated upon only the preliminary hearing transcript (§ 1538.5, subd. (i)) because the moving defendant submitted questions, especially when the questions, by and large, had been asked "in substance" during the in camera hearing that had already been conducted.
Defendant's questions submitted to the superior court under seal were not made a part of the appellate record and, therefore, we have no way to evaluate them.
We agree that the superior court should have reviewed the transcript of the in camera proceedings and the sealed and public portions of the search warrant affidavit in ruling on defendant's renewed section 1538.5 motion and his section 995 motion since, in both instances, it was acting as a reviewing court (see § 1538.5, subd. (i); People v. Fulkman, supra, 235 Cal.App.3d at p. 560 [§ 1538.5, subd. (i)]; People v. Ramsey, supra, 203 Cal.App.3d at pp. 678-679 [§ 1538.5, subd. (i)]; People v. Laiwa, supra, 34 Cal.3d at p. 718 [§ 995]). On review of renewed section 1538.5 motion without new evidence, however, the appellate court "disregards the findings of the superior court and 'reviews the determination of the magistrate who ruled on the motion to suppress. [Citation.]' [Citation.]" (People v. Fulkman, supra, 235 Cal.App.3d at p. 560; see People v. Ramsey, supra, 203 Cal.App.3d at p. 679.) Similarly, "[o]n review [of a section 995 motion] by appeal . . ., the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer. [Citations.]" (People v. Laiwa, supra, 34 Cal.3d at p. 718.)
We have independently reviewed the appellate record in this case, including the transcript of the in camera hearing and the sealed and public portions of the search warrant affidavit. We conclude that the record does not disclose any basis for reversal under Hobbs. (See Cal. Const., art. VI, § 13; see also Cal. Const., art. I, § 28, subd. (d); People v. Bradford (1997) 15 Cal.4th 1229, 1291 [federal constitutional standards govern search and seizure issues under California Constitution, article I, section 28, subdivision (d)]; Illinois v. Gates (1983) 462 U.S. 213, 238 [103 S.Ct. 2317].)
C. Fees, Fines, and Penalty Assessments
1. Drug Program Fee
Health and Safety Code section 11372.7 provides in pertinent part: "(a) Except as otherwise provided in subdivision (b) . . ., each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law." Health and Safety Code section 11372.7, subdivision (b), provides: "The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. . . . If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee."
Defendant argues that the clerk's minute order mistakenly reflected a drug program fee that the trial court did not orally impose. In both criminal and civil cases, courts have inherent power to correct clerical errors in its records at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185; see Gov. Code, § 69844 [clerk of the court is required to enter any order or judgment of the court in the minutes]; § 1207 ["clerk must enter the judgment in the minutes"].) Where there is a discrepancy, the record of the oral pronouncement of the court generally controls over the clerk's minute order. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Under such authority, defendant urges this court to strike the drug program fee.
Citing People v. Martinez (1998) 65 Cal.App.4th 1511, the People agree that the court's minutes should be corrected to omit the drug program fee because the reporter's transcript of the March 22, 2007 proceedings does not reflect that the court actually ordered defendant to pay any drug program fee and the court's failure to impose the fee supports the presumption that the court found defendant did not have the ability to pay. In People v. Martinez, supra, 65 Cal.App.4th at page 1517, an appellate court determined: "[A] trial court may, without expressly so stating, and taking into account any fine or restitution amount imposed, conclude that a defendant does not have the ability to pay a drug program fee. . . . [O]n a silent record, we presume the trial court resolved those issues in favor of not imposing the fee. [Citations.]"
Both parties have overlooked the written order imposing a drug program fee of $150, also dated March 22, 2007 and signed by both the judge and the defendant. Under this circumstance, the applicable presumptions (see Evid. Code, § 664 [presumption that official duty has been regularly performed]; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [judicial order is presumed correct and error must be affirmatively shown]) dictate a different result than would be reached based upon a silent record. We must presume the trial court properly resolved the issue of ability to pay in favor of imposing the fee. We are not faced with a mere clerical error that may be corrected by this court.
We discuss the question of additional penalty assessments below.
2. Criminal Laboratory Analysis Fee
Defendant asserts that the total fine, consisting of the laboratory analysis fee and attached penalty assessments, should have been $135 pursuant to Health and Safety Code section 11372.5, Government Code section 76000, and section 1464, but the clerk's minute order imposed a greater fee of $175. He asks this court to correct it. The People agree that the minute order must be corrected to reflect a laboratory analysis fee of $135. The parties calculate the total fine of $135 as follows: a $50 laboratory analysis fee (Health & Saf. Code § 11372.5, subd. (a)) plus a $50 state penalty (§ 1464) plus an additional penalty of $35 (Gov. Code, § 76000, subd. (a)).
Health and Safety Code section 11372.5, subdivision (a), requires every person who is convicted of a violation of Health and Safety Code section 11351 to "pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense" and requires that a court to "increase the total fine necessary to include this increment." There is no dispute that defendant is subject to a $50 criminal laboratory fee. We separately address the question of penalty assessments below.
3. Penalty Assessments and State Surcharge
The laboratory analysis fee is a fine that is subject to further penalty assessments. (See People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257; People v. Martinez, supra, 65 Cal.App.4th at pp. 1520-1522; see also People v. Talibdeen (2002) 27 Cal.4th 1151, 1153.) Likewise, the drug program fee is a fine that is subject to further penalty assessments. (See People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1696 [drug program fee is subject to penalty assessments under § 1464 and Gov. Code, § 76000.)
A court must order a person convicted of any crime "to pay a fine in the form of a penalty assessment in accordance with Section 1464." (§ 1202.4, subd. (a)(2).) Section 1464 requires 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, including all offenses" with exceptions not here applicable. (§ 1464, subd. (a)(1).) The penalty under section 1464 does not apply to a restitution fine or a "penalty authorized by Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code." (§ 1464, subds. (a)(3)(A) and (a)(3)(B).)
Government Code section 76000 provides that "in each county 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 all criminal offenses . . . ." (Gov. Code, § 76000, subd. (a)(1).) This additional county penalty does not apply to a restitution fine or penalty authorized by section 1464. (Gov. Code, § 76000, subds. (a)(3)(A) and (a)(3)(B).) This additional county penalty may be reduced as statutorily specified. (See Gov. Code, § 76000, subds. (a) and (e), see Gov. Code, §§ 70401, 70402; 76100.)
Government Code section 76000, subdivision (e), provides: "The seven-dollar ($7) additional penalty authorized by subdivision (a) shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by Section 76100 as of January 1, 1998, when the money in that fund is transferred to the state under Section 70402. The amount each county shall charge as an additional penalty under this section shall be as follows: . . . [¶] Santa Cruz $7.00." Government Code section 76100 authorizes county boards of supervisors to "establish in the county treasury a Courthouse Construction Fund." Government Code section 70401 establishes the Transitional State Court Facilities Construction Fund in the State Treasury. Government Code section 70402 specifies when any amount in a county's courthouse construction fund established by Government Code section 76100 must be transferred to the State Court Facilities Construction Fund. Government Code section 76000 and 76100 were amended and Government Code section 70401 and 70402 were enacted in 2002 (Stats. 2002, ch. 1082, §§ 4, 5, 6, pp. 5395-5397) as part of a legislative effort to "transfer the responsibility for trial court facilities funding and operation to the state . . . ." (Stats. 2002, ch. 1082, § 1, p. 5376.)
The parties' calculations are correct insofar as they go. Defendant is subject to a $50 laboratory analysis fee (Health & Saf. Code § 11372.5, subd. (a)) and attendant penalties, including the state penalty of $50 (§ 1464) and additional penalty of $35 (Gov. Code, § 76000, subd. (a)). But the parties fail to consider the penalty assessments that must be imposed upon the drug program fee of $150. They also overlook other mandatory penalties and the state surcharge required to be imposed by law.
In addition to the other statutory penalties discussed, section 1465.7 requires imposition of "[a] state surcharge of 20 percent . . . on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464." (§ 1465.7, subd. (a).) This state surcharge is "in addition to the state penalty assessed pursuant to Section 1464 of the Penal Code and may not be included in the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464." (§ 1465.7, subd. (b).)
Although section 1464 and section 1465.7 are located in Part 2, Title 11, chapter 1 of the Penal Code (§ 1427 et seq.), which is entitled "Proceedings in Misdemeanor and Infraction Cases and Appeals from Such Cases," section 1463 defines the term "offense" to include a felony for purposes of the chapter. (§ 1463, subd. (h); cf. People v. Le (2006) 137 Cal.App.4th 54, 61 [additional fee for court security under section 1465.8 applies in felony cases].) Consequently, a state surcharge may apply in a felony case since section 1464's penalty must be imposed as specified for all criminal offenses (§§ 1463, 1464, subd. (a)).
Government Code section 70372 imposes a state court construction penalty. It states: "Except as otherwise provided in subdivision (b) of Section 70375 and in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) 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 . . . ." (Gov. Code § 70372, subd. (a)(1).) The state court construction penalty does not apply to a restitution fine, a penalty under section 1464 or under Government Code section 76000 et seq., or a state surcharge under section 1465.7. (Gov. Code § 70372, subd. (a)(3).) A criminal laboratory analysis fee is among the fees subject to a state court construction penalty. (See People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1252.)
"The amount of the [state] court construction penalty may be reduced by a county as provided in subdivision (b) of Section 70375." (Gov. Code § 70372, subd. (a)(2).) Government Code section 70375, subdivision (b), now provides: "In each county, the five-dollar ($5) penalty amount authorized by subdivision (a) of Section 70372 shall be reduced by the following: [¶] (1) The amount collected for deposit into the local courthouse construction fund established pursuant to Section 76100. . . . [¶] (2) The amount collected for transmission to the state for inclusion in the Transitional State Court Facilities Construction Fund established pursuant to Section 70401 to the extent it is funded by money from the local courthouse construction fund."
Government Code section 70371 et seq. concerns the State Court Facilities Construction Fund and includes Government Code sections 70372 and 70375. The addition of these sections was part of the 2002 legislation overhauling funding of and responsibility for court facilities. (Stats. 2002, ch. 1082, § 4, pp. 5390-5392.) See footnote eight above.
Government Code section 76104.6, which was originally approved by the voters in November 2004 (Prop. 69, § IV.1, as approved Gen. Elec. (Nov. 2, 2004)), stated: "For the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10) or fraction thereof in each county which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . ." Government Code section 76104.7, which went into effect July 12, 2006 (Stats.2006, ch. 69, § 18, pp. 1111, 1127), specified: "In addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of one dollar ($1) for every ten dollars ($10) or fraction thereof in each county, which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . ." These funds are ultimately deposited in the state's DNA Identification Fund. (See Gov. Code, § 76104.7.) Recent amendments to Government Code sections 76104.6 and 76104.7 make clear that these additional penalties do not apply to any restitution fine, to any penalty authorized by section 1464 or by Penal Code, Title 8, Chapter 12 (county penalties), or to a state surcharge authorized by section 1465.7. (Gov. Code, §§ 76104.6, subd. (a)(3), 76104.7, subd. (c).)
It appears defendant is required to pay a $150 criminal laboratory analysis fee and a $50 drug program fee, plus attendant mandatory penalties and state surcharge. The appellate record does not disclose sufficient information for this court to determine whether the county penalty authorized by Government Code section 76000 or the state court construction penalty authorized by Government Code section 70372 must be reduced. Consequently, the matter will be remanded. The trial court must separately specify the statutory basis for each fee, penalty and surcharge imposed. (See People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)
The March 22, 2007 probation order is reversed and the matter is remanded for determination of all mandatory fees, penalties and surcharges required by law.
WE CONCUR: RUSHING, P. J., PREMO, J.