Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS060968
McAdams, J.
On May 1, 2007, defendant Garth Hattan pleaded guilty to felony transportation of a controlled substance and no contest to misdemeanor resisting arrest. (Health & Saf. Code § 11352, Pen. Code § 148 [case no. SS071286].) He also admitted that he had violated his probation in two cases, SS060968, and SS061322. In each of the prior cases, he had pleaded guilty to felony possession of a controlled substance and had been placed on probation on August 7, 2006.
On May 31, 2007, in case number SS071286, the court sentenced defendant to four years in state prison. In cases SS061322 and SS060968, the court sentenced defendant to three-year concurrent terms. No sentence was pronounced for the misdemeanor. In the two probation cases, the court directed payment of all previously ordered fines, fees and assessments. In the most recent case, the court ordered, among other things, a $440 fine pursuant to Health and Safety Code section 11372.5. The abstract of judgment reflects that fines in the same amount ($440) were imposed in the two prior cases. Defendant’s appeal challenges the amount of the fine only. The People concede the amount ordered is in error, but disagree with defendant’s determination of the amount. We accept the People’s concession, reduce the amount of the fees and, as modified, affirm the judgment.
An “X” is placed in each of three boxes labeled “$440 Lab fee per HS 11372.5(a).”
Because the facts underlying defendant’s three cases are not pertinent to the issue raised on appeal, we do not summarize them, except to note the dates on which they were committed. Defendant’s earlier two offenses were committed on December 24, 2005, and April 8, 2006. His most recent offense was committed on March 22, 2007.
DISCUSSION
Defendant complains that the laboratory analysis fees of $440 imposed in each of his three cases are not authorized by Health and Safety Code section 11372.5, even if penalty assessments are included. Section 11372.5 imposes a $50 laboratory analysis fee for every conviction under Health and Safety Code sections 11350 and 11352. Defendant concedes that the following additional penalty assessments are also authorized: (1) $50 under Penal Code sections 1464; (2) $25 under Government Code section 76000, subdivisions (a) and (e); (3) $25 under Government Code section 70372, subdivision (a) and (4) $5 under Government Code section 76104.6, for a total of $105 in penalty assessments. Added to the base fine of $50, the total fee and assessment should be no more than $155, he argues, not $440.
Health and Safety Code section 11372.5 provides, in relevant part: “Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the Business and Professions Code 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.”
Penal Code section 1464, subdivision (a) provides, in relevant part: “Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, … there shall be levied 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 criminal offenses, including all offenses, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
Government Code section 76000, subdivisions (a) and (e) provide, in relevant part: “(a)(1) Except as otherwise provided elsewhere in this section, 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, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. [¶] … [¶] (e) 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: [¶] … [¶] Monterey $5.00.”
Government Code section 70372, provides: “(a)(1) 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, including, but not limited to, all offenses involving a violation of a section of the Fish and Game Code, the Health and Safety Code, or the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. This penalty is in addition to any other state or local penalty, including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000. [¶] (2) The amount of the court construction penalty may be reduced by a county as provided in subdivision (b) of Section 70375.”
Government Code section 76104.6, subdivision (a)(1) provides in part: “Except as otherwise provided in this section, 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 part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. . . .”
The People agree with defendant’s basic calculations, but argue that defendant has failed to include a $10 surcharge under Penal Code section 1465.7, subdivision (a). They also suggest that “[o]ther possible charges may apply. (E.g. Gov. Code §§ 76000.5, subd. (a) [20%]; 76104.7 [10%].) In addition, it is unclear whether the 70-percent or 50-percent penalty under Government Code section 76000, is applicable.” Citing the “bewildering array of penalty assessment statutes, some of which vary in their application from county to county,” both sides agree, and we concur, that because the court did not specify the statutory basis for the penalty assessments, it is impossible to determine how the court arrived at $440 in fees and penalty assessments.
Penal Code section 1465.7, subdivision (a) provides: “A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.”
Government Code section 76000.5, effective January 1, 2007, provides that “in addition to the penalties set forth in Section 76000, the county board of supervisors may elect to levy an additional penalty in the amount of two dollars ($2) 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. . . .” (Italics added.) As noted earlier, defendant’s two earlier crimes were committed on December 24, 2005, and April 8, 2006, and therefore predate the statute. However, the statute as in effect when he committed his most recent crime on March 22, 2007. Thus, the penalty assessment could apply to one offense but not, arguably, to the other two offenses.
Government Code section 76104.7 subdivision (a) provides: “Except as otherwise provided in this section, 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 part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.
For example, as suggested by the People, there may be other statutes not cited by defendant on appeal that the court applied in calculating the penalty assessments. In this regard, we note that Government Code section 76104.7, which provides for a 10 percent penalty assessment, became effective July 12, 2006. (Added by Stats. 2006, ch. 69, § 18.) Section 76104.7 was not in effect at the time defendant committed the two earlier offenses, although it was in effect at the time he was sentenced. If the court relied on this section, it would reduce the difference between the amount imposed by the court, and the amount defendant claims is correct, by $5.
In addition, Government Code section 76000.5, which became effective January 1, 2007, after defendant committed the two earlier offenses, but before he committed his most recent offense, provides for a 20 percent penalty. (See Gov. Code, § 76000.5, subd. (a).) Application of this section would reduce the discrepancy by another $20, assuming the court found the section applicable.
Because we do not know whether the court actually relied on Government Code section 76000.5, we do not reach the issue of whether it may apply to defendant, who committed two of the three offenses before the effective date of section 76000.5. Further, subdivision (b) of section 76000.5 states: “Funds shall be collected pursuant to subdivision (a) only if the county board of supervisors provides that the increased penalties do not offset or reduce the funding of other programs from other sources, but that these additional revenues result in increased funding to those programs.” Here, there is no evidence in the record as to whether the Monterey Board of Supervisors made such a provision or determination.
In order to facilitate review of the penalty assessments imposed in a case, as well as assist in collection efforts, it is important for the trial court to recite the statutory basis for the penalty assessments. (See People v. Taylor (2004) 118 Cal.App.4th 454, 456-460; People v. High (2004) 119 Cal.App.4th 1192, 1200.) Here, the parties leave it to this court’s discretion whether to remand the matter for further clarification by the trial court, or simply order the abstract amended. While the trial court may have properly assessed penalty assessments in this case, the People do not contend the trial court in fact relied on statutes other than those cited by defendant on appeal. While the People suggest that the larger penalty assessment of 70 percent found in Government Code section 76000, subdivision (a) might apply, they do not affirmatively assert or demonstrate that Monterey County does not have a courthouse construction fund, nor do they otherwise identify evidence in the record, matters judicially noticeable, or statutory authority which would preclude a finding that such a fund exists in Monterey County. For purposes of this case only, therefore, we will assume that Monterey County does have a courthouse construction fund and that the 50 percent penalty assessment of Government Code section 76000, subdivision (e) applies in this case. The trial court should, in the future, state the statutory basis for penalty assessments and, where necessary, make the requisite, underlying factual findings.
In addition to the $10 surcharge under Penal Code section 1465.7, subdivision (a), the parties disagree about the proper penalty assessment under Government Code section 76000. Defendant asserts that the 50 percent penalty assessment of subdivision (e) applies, while the People suggest that the 70 percent penalty assessment of subdivision (a) might apply in this case. The People argue that “[t]he Supreme Court may resolve this latter question in People v. Chavez (2007) [formerly at] 150 Cal.App.4th 1288, review granted August 15, 2007, S153920.” However, the California Supreme Court recently dismissed and remanded Chavez in light of Statutes 2007, chapter 302, which clarifies that the reduction set forth in Government Code section 70375, subdivision (b), reduces the penalty amount authorized by Government Code section 70372, subdivision (a).
Accordingly, in the interests of judicial economy, we shall order the abstract amended to reduce the penalty assessments to the amounts requested by defendant. We will not remand for further hearing regarding the statutory basis for the penalty assessments.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment to reduce the penalty assessments for the laboratory analysis fees to $155. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.
In any event, we are unable to determine from the record whether Monterey County established a local courthouse construction fund under Government Code section 76100. Although the language of Government Code section 76000, subdivision (e), appears to make mandatory the reduction in the penalty assessment to 50 percent, its reference to section 76100, which provides in subdivision (a) that “the board of supervisors may establish in the county treasury a Courthouse Construction Fund” (italics added), indicates that it is not necessarily the case that every county has established a courthouse construction fund.