Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC647713
Duffy, J.
Defendant Darryl Myron Hutchinson pleaded no contest to reckless driving while fleeing and attempting to elude a peace officer (Veh. Code, § 2800.2, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and second degree robbery (Pen. Code, § 211). He also admitted the allegation that he had personally used a handgun within the meaning of section 12022.5, subdivision (a). He received consecutive prison sentences totaling eight years and four months.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant asserts that the penalty assessments imposed relative to an AIDS education fine (Health & Saf. Code, § 11377, subd. (c)) and a drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) were excessive. We conclude that the penalty assessments challenged by defendant exceeded the amounts permitted by statute. We further conclude that the court erred by failing to impose mandatory penalty assessments in connection with the imposition of a laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a).) We will modify the judgment to correct these errors and affirm the judgment as modified.
Because this appeal concerns only claimed sentencing error, we present a short summary of the facts relative to the underlying convictions as taken from the transcript of the preliminary hearing.
On November 2, 2006, Sanjay Shah, a clerk working at the San Jose Redding Inn, was robbed at gunpoint of approximately $65 from his wallet and about $300 from the counter by a person wearing a hood and a red mask. Shah testified that the male was approximately the same height as defendant.
A police officer responding to the robbery noted a fleeing black vehicle in the vicinity of the crime scene. Another responding officer observed the vehicle traveling at a high rate of speed through a stop sign in a residential area. The officer activated his lights and siren and gave chase, but the vehicle did not pull over. The vehicle traveled through another stop sign and turned at an unsafe speed of 45 to 50 miles per hour.
Defendant was ultimately apprehended after he stopped at an apartment building in which his former girlfriend and mother of his young child lived. A red bandanna was observed in the vehicle. A quantity of over four grams of methamphetamine was found by the police inside the vehicle.
PROCEDURAL BACKGROUND
Defendant was charged by information filed January 26, 2007, with three counts. He was charged in count 1 with reckless driving in attempting to evade a peace officer, a felony (Veh. Code, § 2800.2, subd. (a)). The information alleged in count 2 the crime of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Defendant was charged in count 3 with second degree robbery (§ 211 – 212.5, subd. (c)). As to the third count, the information contained a special allegation that the robbery offense was committed through the personal use of a firearm, i.e., a handgun (§ 12022.5, subd. (a)).
On May 25, 2007, defendant pleaded no contest (nolo contendere) to the three counts charged, admitted the special allegation, and admitted a probation violation. As a condition of the plea, defendant agreed that he would receive a maximum prison sentence of eight years and four months. On June 21, 2007, the court sentenced defendant to an aggregate prison term of eight years and four months, computed as follows: defendant was sentenced to the midterm of three years for the count 3 conviction, one-third of the midterm for counts 1 and 2 (eight months for each count), and four years for the enhancement under section 12022.5, subdivision (a). As reflected in the clerk’s minutes, the court also imposed an AIDS education fine of $70 with a penalty assessment of $171.50, and a drug program fee of $150 with a penalty assessment of $367.50. Defendant filed a timely notice of appeal.
The reporter’s transcript reflects the court’s imposition of the $70 AIDS education fine and the $150 drug program fee. It does not reflect, however, the court’s imposition of the penalty assessments on that fine and fee.
DISCUSSION
I. Issues On Appeal
Defendant makes the following contentions:
1. The imposition of the penalty assessment on the AIDS education fine was excessive.
2. The imposition of the penalty assessment on the drug program fee was excessive.
We address both of these appellate claims together below.
II. Whether Penalty Assessments Were Excessive
A. Calculation of the Penalty Assessments
Pursuant to Health and Safety Code section 11377, subdivision (c), the court imposed an AIDS education fine of $70, a fine that defendant does not challenge. The court also imposed a drug program fee of $150 pursuant to Health and Safety Code section 11372.7, subdivision (a), a fee that defendant similarly does not challenge. Defendant, however, does challenge the penalty assessments on the AIDS education fine and on the drug program fee ($171.50 and $367.50, respectively). He claims that, although the court did not specify the amount of the penalty assessments or how they were calculated (see fn. 3, ante), the penalty assessments were improperly calculated. Defendant claims that the penalty assessment on the AIDS education fee reflected a figure $14 greater than authorized by statute, and that the assessment on the drug program fee exceeded the allowable amount by $30.
“[T]he judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a) [of Health and Safety Code section 11377], with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. . . .” (Health & Saf. Code, § 11377, subd. (c).)
“[E]ach 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 & Saf. Code, § 11372.7, subd. (a).)
Defendant claims that the penalty assessments on the AIDS education fee and on the drug program fee should have been $157.50 and $337.50, respectively. Defendant cites the following four statutes (with the applicable calculations in this instance noted in parentheses as to the AIDS education fine [AIDS] and drug program fee [DPF]): (1) former subdivision (a) of section 1464, which provided for a state penalty assessment in the same amount as the fine ($70 [AIDS]; $150 [DPF]); (2) Government Code section 76000, subdivision (e), which provides for a county penalty assessment of 55 percent ($38.50 [AIDS]; $82.50 [DPF]); (3) former subdivision (a) of Government Code section 70372, which provided for a state court construction penalty of 50 percent ($35 [AIDS]; $75 [DPF]); and (4) section 1465.7, subdivision (a), which provides for a state surcharge of 20 percent on the base fine ($14 [AIDS]; $30 [DPF]).
“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 all 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.” (Former § 1464, subd. (a); see Stats. 2000, ch. 248, § 1.)
“Except as otherwise provided in this article, there shall be levied a state court construction penalty, 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 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses, including, but not limited to, all offenses, except parking offenses, as defined in subdivision (i) of Section 1463 of the Penal Code, 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. . . . ” (Former Gov. Code, § 70372, subd. (a); see Stats. 2002, ch. 1082, § 4.)
“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.” (§ 1465.7, subd. (a).)
The Attorney General agrees that the statutory bases for calculating the penalty assessments are not reflected in the record. Although he does not expressly take issue with defendant’s calculations, the Attorney General states in a footnote that “[i]t is . . . unclear whether [defendant] has correctly calculated the penalty assessment under Government Code section 76000.” He asserts that defendant relied upon the 55 percent assessment provided in subdivision (e) of Government Code section 76000, while it is entirely possible that the 70 percent assessment under former subdivision (a) of that statute may be the proper standard. The Attorney General claims further that the correct calculation in these circumstances “appears to be an issue [pending] before our Supreme Court.” He is, however, incorrect on this point; the case he cites has been dismissed by our high court. (See People v. Chavez (2007) 150 Cal.App.4th 1288, review granted Aug. 15, 2007, S153920, dism. and remanded to Ct. of Appeal Oct. 24, 2007.)
Former subdivision (a) of Government Code section 76000 provided: “In each county there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof . . . upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses involving a violation of the Vehicle Code, . . .” (See Stats. 2003, ch. 592, § 4.) Subdivision (e) of that statute contains the following qualification: “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 Clara $5.50.”
The record here does not show whether Santa Clara 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 55 percent, its reference to section 76100—which provides that “the board of supervisors may establish in the county treasury a Courthouse Construction Fund” (Gov. Code, § 76100, subd. (a), italics added)—makes the applicability of the 55 percent assessment less than clear. It is not necessarily true that a county—such as Santa Clara County here—has established a courthouse construction fund.
“[F]or the purpose of assisting any county in the acquisition, rehabilitation, construction, and financing of courtrooms, a courtroom building or buildings containing facilities necessary or incidental to the operation of the justice system, or court facilities, the board of supervisors may establish in the county treasury a Courthouse Construction Fund into which shall be deposited the amounts specified in the resolutions adopted by the board of supervisors in accordance with this chapter. The moneys of the Courthouse Construction Fund shall be payable only for the purposes set forth in this subdivision and in subdivision (b) and at the time necessary therefor, subject to the requirements set forth in Chapter 5.7 (commencing with Section 70301).” (Gov. Code, § 76100, subd. (a).).”
Nonetheless, although the Attorney General suggests that the 70 percent penalty assessment under Government Code section 76000, subdivision (a) may apply, he does not affirmatively assert this position nor does he demonstrate that Santa Clara County has no courthouse construction fund. Because the amount in controversy is de minimis—the difference between the figures argued by the parties under former subdivision (a) and subdivision (e) of Government Code section 76000 is $22.50—for purposes of this case only, we will assume that Santa Clara County does have a courthouse construction fund and that the 55 percent penalty assessment of Government Code section 76000, subdivision (e) applies. We therefore concur with defendant’s contention that the penalty assessments on the AIDS education fine and on the drug program fee reflected figures that were $14 greater and $30 greater, respectively, than the amounts authorized by statute.
We make a concluding point: In order to facilitate review of the penalty assessments imposed in a case and to assist in collection efforts, it is important for the trial court to recite in the record the statutory bases for any penalty assessments it imposes and, where necessary, make the requisite factual findings. (See People v. High (2004) 119 Cal.App.4th 1192, 1200.)
B. Appropriateness of Remand
Defendant argues that remand is the appropriate remedy in order for the court to properly recite in detail the statutory bases for all penalty assessments imposed. The Attorney General takes no position on the question; however, he notes that there are relatively small sums involved and the costs of a remand hearing may exceed the challenged amounts of the penalty assessments.
But the Attorney General raises an additional matter that is appropriate for us to consider and which bears on whether we should remand the case to the trial court. He correctly notes that, although the court properly imposed a mandatory laboratory analysis fee of $50 under Health and Safety Code section 11372.5, subdivision (a), it failed to impose penalty assessments in connection with that fee. The Attorney General argues that those assessments should have been similar to the penalty assessments imposed in connection with the drug program fee. Defendant did not respond to these contentions in his reply brief.
The court was required to impose a laboratory analysis fee of $50 in this instance. (Health & Saf. Code, § 11372.5, subdivision (a); see also People v. Martinez (1998) 65 Cal.App.4th 1511, 1519 (Martinez).) Pursuant to former subdivision (a) of section 1464, a 100 percent state penalty assessment on the laboratory analysis fee was mandatory. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1155 (Talibdeen).) The county penalty assessment of 55 percent pursuant to Government Code section 76000, subdivision (e) was likewise mandatory. (Talibdeen, supra, at p. 1155.) Further, by virtue of defendant’s contentions regarding the proper calculations of the penalty assessments applicable to the AIDS education fine and drug program fee discussed ante, defendant has implicitly conceded the applicability here of the penalty assessments under former subdivision (a) of Government Code section 70372, and under section 1465.7, subdivision (a). Therefore, the court below should have imposed penalty assessments on the laboratory analysis fee in the aggregate amount of $112.50.
Health and Safety Code section 11372.5 provides, in relevant part: “Every person who is convicted of a violation of [Health and Safety Code] Section . . . 11377 . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. . . . ”
As we noted in part II.A, ante, because of the de minimis nature of the amount in controversy and the absence of a showing by the Attorney General that Santa Clara County has not established a courthouse construction fund, we have concurred with defendant for purposes of this case only that the lower percentage of 55 percent under subdivision (e) of Government Code section 76000 is applicable here.
This amount is calculated as follows, using the $50 laboratory analysis fee as figure upon which each of the penalty assessment calculations is based: $50 (Former § 1464, subd. (a) [100%]) + $27.50 [Gov. Code, § 76000, subd. (e) [55%]) + $25 [Former Gov. Code, § 70372, subd. (a) [50%]) + $10 (§ 1465.7, subd. (a) [20%]) = $112.50.
We acknowledge that the People below did not object to the court’s failure to impose penalty assessments upon the laboratory analysis fee. But since these assessments were mandatory, it is appropriate for us to address this error and we do not find the matter forfeited: “The erroneous omission of these penalties [in connection with an imposed laboratory analysis fee] therefore ‘present[ed] a pure question of law with only one answer . . . . ’ ([People v.] Smith [(2001)] 24 Cal.4th [849,] 853.) Accordingly, we follow our lower courts and hold that the Court of Appeal properly corrected the trial court’s omission of state and county penalties even though the People raised the issue for the first time on appeal. [Citations.]” (Talibdeen, supra, 27 Cal.4th at p. 1157.)
In light of the fact that the court had no power to refuse to impose the penalty assessments in connection with the laboratory analysis fee, it is appropriate for us to modify the judgment to correct this error. (People v. Turner (2002) 96 Cal.App.4th 1409, 1416; Martinez, supra, 65 Cal.App.4th at p. 1522.) Furthermore, it is in the interests of judicial economy that we modify the judgment here to correct both the errors pointed out by defendant and the court’s omission of the additional penalty assessments. Remand would only serve to unnecessarily increase the costs to the parties and the taxpayers for no good purpose. (See People v. Walker (1991) 54 Cal.3d 1013, 1029 [judicial economy warranted modifying judgment to reduce restitution fine to statutory minimum rather than remand to trial court to determine appropriate amount of fine]; People v. Taylor (2004) 118 Cal.App.4th 454, 456 [judgment modified to include omitted, mandatory laboratory analysis fee and penalty assessments in interests of judicial economy].)
DISPOSITION
The judgment is modified to (1) reduce the penalty assessment on the AIDS education fee from $171.50 to $157.50; (2) reduce the penalty assessment on the drug program fee from $367.50 to $337.50; and (3) impose penalty assessments on the laboratory analysis fee of $50 pursuant to former subdivision (a) of section 1464, $27.50 pursuant to Government Code section 76000, subdivision (e), $25 pursuant to former subdivision (a) of Government Code section 70372, and $10 pursuant to section 1465.7, subdivision (a). As so modified, the judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.