Opinion
H043729
09-24-2018
THE PEOPLE, Plaintiff and Respondent, v. MORRIS KURTZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 214981)
Defendant Morris Kurtz entered a no contest plea to possession for sale of a controlled substance, possession of ammunition by a convicted felon, and possession of a nunchaku. He also admitted two prison prior enhancements. The court sentenced him to serve a two-year prison term, consecutive to a nine-year sentence he was serving in a case filed in Alameda County.
Defendant on appeal challenges the court's imposition of penalty assessments on two levies made by the court. The two levies were a criminal laboratory analysis fee (see Health & Saf. Code, § 11372.5; hereafter crime-lab fee), and a drug program fee (see § 11372.7). He argues that the crime-lab fee and drug program fee constituted administrative fees upon which the imposition of penalty assessments was improper.
All further statutory references are to the Health and Safety Code unless otherwise stated.
In an opinion filed approximately one year ago, we held that there was no error in the imposition of penalty assessments on the crime-lab fee and drug program fee. (People v. Kurtz (Aug. 23, 2017, H043729) [nonpub. opn.].) Defendant petitioned the Supreme Court for review. On November 1, 2017, the California Supreme Court granted review, S244589, and on July 25, 2018, the high court transferred the case to this court with directions to vacate our decision and to reconsider the cause in light of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). Having reconsidered the matter, we conclude there was no error and will affirm the judgment.
I. FACTS
In the early hours of April 3, 2013, Officer Brad Rice of the Campbell Police Department, who at the time was a member of a Department of Justice task force investigating narcotics, along with other peace officers, executed a search warrant at an apartment in San Jose. Officers arrived in a bulletproof truck and called out on a loudspeaker repeatedly for the occupants of unit number four to exit the building with their hands up. Defendant came out the front door, looked outside in the direction of the officers' truck, and returned inside the building. Defendant, and then his girlfriend, Adriana Mueller, later exited the building.
In executing the search warrant, officers discovered several plastic baggies of suspected narcotics in various parts of the apartment unit, and a metal container of suspected residual methamphetamine in a safe that the officers forced open. The search also yielded $300 cash in a dresser, two pairs of nunchucks, two digital scales containing a white residue, empty plastic baggies labeled "G" for one gram and "Q" for one-quarter ounce, seven throwing stars and metal knuckles, .38-caliber rounds of ammunition, and miscellaneous drug paraphernalia. A chemist from the Santa Clara County Crime Laboratory determined that the suspected controlled substances obtained during execution of the search warrant constituted approximately 14 grams of crystalline methamphetamine.
When he was later interviewed by Officer Rice, defendant admitted that he used narcotics but stated he did not sell them. Mueller told the police that she had been present in the apartment at least 20 times when defendant sold methamphetamine to others.
II. PROCEDURAL BACKGROUND
Defendant was charged in a five-count indictment filed September 28, 2015, with possession for sale of a controlled substance, methamphetamine (§ 11378; count 1), possession of metal knuckles (Pen. Code, § 21810; count 2), possession of a shuriken (Pen. Code, § 22410; count 3), possession of ammunition by a person previously convicted of a felony (Pen. Code, § 30305, subd. (a)(1); count 4), and possession of a nunchaku (Pen. Code, § 22010; count 5). It was alleged further in the indictment that defendant had suffered three prison priors (Pen. Code, § 667.5, subd. (b)).
On March 7, 2016, defendant pleaded no contest to counts 1, 4, and 5, and admitted two prison priors. On May 20, 2016, the court sentenced defendant to an aggregate two-year prison term, consecutive to a nine-year sentence he was serving arising out of Alameda County case. The court dismissed counts 2 and 3, and one of the prison priors in the interests of justice, and struck the additional punishment associated with the two admitted prison priors pursuant to Penal Code section 1385. Additionally, the court imposed (1) a crime-lab fee of $50 pursuant to section 11372.5, (2) penalty assessments of $155 on that fee, (3) a drug program fee of $150 pursuant to section 11372.7, and (4) penalty assessments of $465 on that fee. Defendant filed a timely notice of appeal.
After defendant filed this appeal, on March 1, 2017, the clerk of the superior court filed a Request for Action containing a minute order signed by the trial judge stating, among other things, that the court would take no action with respect to defense counsel's prior request of January 14, 2017 to strike the penalty assessments imposed on the crime-lab fee and drug program fee.
III. DISCUSSION
Defendant contends that the court erred in imposing penalty assessments of $155 and $465 upon the crime-lab and drug program fees, respectively. Specifically, he argues that because penalty assessments typically apply only to "fines, penalties, and forfeitures, but not to fees," assessments on crime-lab and drug program fees are improper because they are, indeed, fees. In support of his claim of error, defendant relies on People v. Watts (2016) 2 Cal.App.5th 223 (Watts) (holding crime-lab fee was not a fine or penalty upon which penalty assessment could be imposed) and People v. Vega (2005) 130 Cal.App.4th 183 (Vega) (holding that for purposes of Pen. Code, § 182, crime-lab fee is not punishment). However, subsequent to the filing of the first opinion in this appeal, both Watts and Vega were disapproved by Ruiz, supra, 4 Cal.5th at page 1122, footnote 8.
Appellate courts in a number of cases decided pre-Watts held that crime-lab fees imposed under section 11372.5, and drug program fees imposed under section 11372.7 were fines or penalties upon which penalty assessments should be imposed. (See, e.g., People v. Terrell (1999) 69 Cal.App.4th 1246, 1257 (Terrell) [crime-lab fee]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 (Martinez) [crime-lab fee]; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 (Sanchez) [crime-lab fee]; People v. Sierra (1995) 37 Cal.App.4th 1690, 1695-1696 (Sierra) [drug program fee].)
In Sierra, the court upheld the imposition of a penalty assessment on a drug program fee imposed pursuant to section 11372.7, subdivision (a) (§11372.7(a)). (Sierra, supra, 37 Cal.App.4th at p. 1695.) It rejected the defendant's claim that the fee was "a specific fee created by the Legislature for a specific purpose and from the language of the statute [was] imposed in addition to a base fine." (Ibid., original italics.) The Sierra court pointed out that while the language of section 11372.7(a) initially refers to the drug program levy as a "fee"—i.e., " 'each person who is convicted of a violation of this chapter shall pay a drug program fee' " (Sierra, supra, at p. 1694)—"the very sentence [the defendant] attempts to interpret defines the drug program fee as an increase to the 'total fine' and later as a fine in addition 'to any other penalty.' . . . In other words, section 11372.7, subdivision (a) describes itself as both a fine and/or a penalty" (id. at p. 1695, original italics). Rejecting the defendant's interpretation of the statute as providing for the imposition of a fee upon which a penalty assessment was prohibited, the Sierra court reasoned: "[The defendant's] interpretation of . . . section 11372.7 would lead to absurd consequences by reading out of that very section the fact that it is a fine and/or a penalty. So reading the statute, the trial court could not impose an otherwise mandatory penalty assessment. [The defendant's] interpretation does violence to the express language of the statute and to the clear intent of the Legislature, and would lead to an absurd result." (Id. at p. 1696.)
"Except as otherwise provided in subdivision (b) or (e), 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." (§ 11372.7, subd. (a).)
The appellate court in Martinez applied the reasoning of Sierra to the crime-lab fee specified in section 11372.5, subdivision (a) (§11372.5(a)). (Martinez, supra, 65 Cal.App.4th at p. 1522.) The court held: "Under the reasoning of Sierra, we conclude Health and Safety Code section 11372.5, defines the criminal laboratory analysis fee as an increase to the total fine and therefore is subject to penalty assessments under [Penal Code] section 1464 and Government Code section 76000." (Ibid.; see also People v. Sharret (2011) 191 Cal.App.4th 859, 869-870 [because crime-lab fee was punitive in nature, court was required to stay its imposition under Pen. Code, § 654, where related charge of which defendant was convicted was subject to being stayed]; Terrell, supra, 69 Cal.App.4th at p. 1257 [court required to impose state and county penalty assessments on crime-lab fee it levied]; Sanchez, supra, 64 Cal.App.4th at p. 1332 [holding abstract of judgment must be amended to include crime-lab fee imposed because it was "an increment of a fine"].)
"Every person who is convicted of a violation of [any of 28 specified statutes, including section 11378] 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. [¶] With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law." (§ 11372.5, subd. (a).)
The court, however, in Watts, supra, 2 Cal.App.5th 223—a case relied on heavily by defendant here—concluded that section 11372.5's crime-lab fee did not constitute a fine or penalty upon which penalty assessments must be imposed. In parsing the language of section 11372.5(a), the court rejected "the rationale of Martinez, Sierra, [and] the courts that followed them, under which section 11372.5(a)'s references to the phrases 'total fine,' 'fine,' and 'any other penalty' somehow establish that the crime-lab fee constitutes a 'fine' or 'penalty' within the meaning of the statutes governing penalty assessments. As to the statute's reference to 'total fine,' we fail to perceive how the fact that the crime-lab fee increases the 'total fine' necessarily means the fee itself is a 'fine' subject to penalty assessments. Nothing about the statute's use of the phrase 'total fine' is inconsistent with the conclusion that the crime-lab fee simply gets added to the overall charge imposed on the defendant after penalty assessments are [established]. And as to the statute's references to the word 'fine' and the phrase 'any other penalty,' they appear only in section 11372.5(a)'s second paragraph, which applies only to offenses 'for which a fine is not authorized by other provisions of law.' " (Watts, supra, at p. 234.) The Watts court also relied on Vega's conclusion that "[t]he crime-lab fee . . . is a fixed charge that is 'imposed to defray administrative costs,' not 'for retribution and deterrence.' [Citations.]" (Watts, supra, at p. 235, quoting Vega, supra, 130 Cal.App.4th at p. 195.)
The Ruiz defendant relied on Watts in support of his contention that legislative history showed that the crime-lab fee was " 'a nonpunitive administrative fee' rather than punishment." (Ruiz, supra, 4 Cal.5th at p. 1112.) The Supreme Court was not persuaded, concluding in part: "[T]he analysis of defendant and the Watts court would produce an anomalous result. In cases where 'a fine is not authorized by other provisions of law,' the second paragraph of section 11372.5, subdivision (a), expressly characterizes the $50 'increment prescribed by this section' as 'a fine' to be imposed 'in addition to any other penalty prescribed by law.' Under the analysis of defendant and the Watts court, the very same 'increment' [citation], when assessed pursuant to the first paragraph of the very same statute—because of the existence of other fines—is simply an administrative fee. Defendant suggests no reason—and we can think of none—why the Legislature would, in a single subdivision, view the same increment differently based on this distinction. . . . We therefore reject Watts's anomalous conclusion that the criminal laboratory analysis fee 'is by its nature not punishment and therefore not a "fine" or "penalty" except,' as the second paragraph of section 11372.5, subdivision (a), specifies, 'in the case of an offense "for which a fine is not authorized by other provisions of law." ' (Watts, supra, 2 Cal.App.5th at p. 235.)" (Id. at p. 1113.)
As we have noted, the Supreme Court disapproved Watts, supra, 2 Cal.App.5th 223 and Vega, supra, 130 Cal.App.4th 183, relied on by defendant, as well as two other cases—People v. Martinez (2017) 15 Cal.App.5th 659 and People v. Webb (2017) 13 Cal.App.5th 486—that had held that crime-lab fees and drug program fees were not subject to penalty assessments. (Ruiz, supra, 4 Cal.5th at p. 1122, fn. 8.)
The California Supreme Court has not directly decided whether crime-lab fees imposed under section 11372.5(a) and drug program fees imposed under section 11372.7(a) are "fine[s], penalt[ies], or forfeiture[s]" (Pen. Code, § 1464, subd. (a)(1); Gov. Code, § 76000. subd. (a)(1)) on which the imposition of penalty assessments is proper. But our high court's decisions in People v. Talibdeen (2002) 27 Cal.4th 1151, 1153 (Talibdeen) and Ruiz, supra, 4 Cal.5th 1100 offer strong support for the conclusion that imposition of penalty assessments in such instances is appropriate.
In Talibdeen, the Supreme Court addressed a related question after the trial court had imposed a crime-lab fee under section 11372.5(a): Does the trial court have discretion to waive penalties under Penal Code section 1464? As the Supreme Court explained, "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 . . ." (Talibdeen, supra, 27 Cal.4th at p. 1153, fn. omitted.) Although there was no specific contention there that crime-lab fees were administrative fees and thus not subject to penalty assessments, the Supreme Court concluded that the trial court was required to impose a penalty assessment on such fee at the time of sentencing. (Id. at p.1157.)
Under a narrow exception, however, the trial court may waive such penalties under Penal Code section 1464, subdivision (d), if the defendant is in the midst of serving a sentence imposed because he failed to pay a fine. (Talibdeen, supra, 27 Cal.4th at pp. 1154-1155.) --------
The impact of Talibdeen upon the issue presented here is subject to debate. Some courts—in cases cited by defendant here—posited that Talibdeen was not binding authority for the precise question here. (See, e.g., Watts, supra, 2 Cal.App.5th at pp. 231-232 [noting that nothing showed that the Talibdeen defendant had argued that penalty assessments were inapplicable and the case did not discuss whether crime-lab fee was a "fine, penalty, or forfeiture" under Pen. Code, § 1464 and Gov. Code, § 76000]; Vega, supra, 130 Cal.App.4th at p. 195 [same].) But, as the Supreme Court itself recently observed in Ruiz: "A prerequisite to our holding [in Talibdeen] that the penalties were, in fact, mandatory was that section 11372.5's criminal laboratory analysis fee constituted a 'fine, penalty, or forfeiture' within the meaning of Penal Code section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a). Consistent with this fact, as noted above, we affirmatively stated that the statutes there at issue 'called for the imposition of' the penalties 'based on such a fee,' i.e., 'a laboratory analysis fee of $50 pursuant to . . . section 11372.5, subdivision (a).' [Citation.]" (Ruiz, supra, 4 Cal.5th at p. 1120.) Thus, even were we to assume that Talibdeen is not dispositive of the issue before us, the Supreme Court's decision in Talibdeen is, at the very least, dictum of considerable persuasiveness here. (See Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 [appellate courts should follow Supreme Court dictum where high court "has conducted a thorough analysis of the issues [or the dictum] reflects compelling logic"].)
The high court's recent decision in Ruiz, supra, 4 Cal.5th 1100—again, like Talibdeen, while not directly determining the issue— further supports the conclusion that the crime-lab fee and drug program fee constitute "fine[s], penalt[ies], or forfeiture[s]" within the meaning of Penal Code section 1464 and Government Code section 76000, subdivision (a), requiring imposition of penalty assessments.
The Ruiz defendant pleaded no contest to conspiracy to transport a controlled substance. (Ruiz, supra, 4 Cal.5th at p. 1104.) On appeal, the defendant argued that the crime-lab fee and drug program fee imposed on him by the trial court were " 'nonpunitive administrative fee[s]' " (id. at p. 1105) and were therefore unauthorized under Penal Code section 182, subdivision (a), which provides that conspiracy 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." The Supreme Court identified the central issue therefore as follows: "[U]nder the plain language of Penal Code section 182, subdivision (a), whether the trial court properly imposed the fees at issue here depends on whether they are part of 'the punishment' for the offense that defendant was convicted of conspiring to commit. [Citations.]" (Ruiz, supra, at p. 1106.) After conducting an exhaustive analysis of the statutory language and legislative history underlying sections 11372.5 and 11372.7 (Ruiz, supra, at pp. 1109-1119), the Supreme Court rejected the defendant's argument that the crime lab fees and drug program fees were administrative fees of a nonpunitive nature, holding that the Legislature "understood and intended that the payments these sections prescribe are fines, penalties, and punishment." (Id. at p. 1116.)
In Ruiz, the defendant relied on Vega, supra, 130 Cal.App.4th at p. 195 for the proposition "that 'the main purpose' of section 11372.5 'is not to exact retribution against drug dealers or to deter drug dealing . . . but rather to offset the administrative cost of [drug] testing.' " (Ruiz, supra, 4 Cal.5th at p. 1118.) The Ruiz court rejected the defendant's position, explaining: "Initially, neither the language of the statutes nor their legislative history persuades us to adopt defendant's view of the Legislature's 'main purpose' [of offsetting administrative costs of laboratory testing and government programs] in establishing these charges. . . . [B]oth statutes refer to the charges as 'fine[s]' and provide that, in some cases, the fine 'shall be in addition to any other penalty prescribed by law.' (§§ 11372.5, subd. (a), 11372.7, subd. (a), italics added.) In terms of legislative history, several analyses of the legislation that enacted section 11372.7 emphasized that the statute 'seeks to provide an enhanced penalty for those convicted of drug violations.' [Citations.] And an analysis of the legislation that amended section 11372.5, subdivision (a) in 1983—by adopting the term 'criminal laboratory analysis fee' and expanding the list of offenses subject to that charge (Stats. 1983, ch. 626, § 1, p. 2527)—explained that a purpose of the fee was to 'provide an additional reminder to offenders of the true cost of their acts.' [Citation.] This description discloses a legislative intent to promote one of 'the traditional aims of punishment' [citation]—deterrence—'by warning the offender, and others tempted to commit the same violation, of the price to be paid for such actions' [citation]. Thus, the statutory language and legislative history undermine defendant's claim regarding the Legislature's 'main purpose' in establishing the criminal laboratory analysis and drug program fees." (Id. at pp. 1118-1119.)
The Supreme Court in Ruiz expressly declined to consider whether crime-lab fees and drug program fees are subject to penalty assessments. (Ruiz, supra, 4 Cal.5th at p. 1122 [court expressly declines the defendant's request to submit supplemental brief on issue]; see also id. at p. 1112, fn. 5 [noting that issue decided in Watts, supra, 2 Cal.App.5th 223 was pending before Supreme Court].) But it expressly disapproved of the case law defendant relied on here in support of his argument that those fees are not punishment and are therefore not subject to penalty assessments. (Ruiz, supra, 4 Cal.5th at p. 1122, fn. 8 [disapproving, among other cases, Watts, supra, 2 Cal.App.5th 223 and Vega, supra, 130 Cal.App.4th 183].) And the arguments defendant presents are not materially different than those asserted by the Ruiz defendant and rejected by the Supreme Court.
In short, we are persuaded by the reasoning of the courts in such cases as Sierra, supra, 37 Cal.App.4th 1690 and Martinez, supra, 65 Cal.App.4th 1511 that crime-lab fees and drug program fees are fines, penalties, or forfeitures, not administrative fees, and are therefore subject to mandatory penalty assessments. We find further support for this conclusion by the Supreme Court's reasoning concerning a similar related, but distinct, issue in Talibdeen, supra, 27 Cal.4th 1151. And we conclude that Ruiz, supra, 4 Cal.5th 1000, although not directly deciding the question, provides clear guidance that crime-lab fees and drug program fees are a form of punishment and therefore are subject to penalty assessments.
IV. DISPOSITION
The judgment of conviction is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.