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People v. Langan

California Court of Appeals, First District, Fourth Division
Mar 20, 2008
No. A116891 (Cal. Ct. App. Mar. 20, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOEL MARTIN LANGAN, Defendant and Appellant. A116891 California Court of Appeal, First District, Fourth Division March 20, 2008

NOT TO BE PUBLISHED

Lake County Super. Ct. Nos. CR901869, CR907915-A

Rivera, J.

Defendant Joel Martin Langan appeals judgments entered in two cases in which he was convicted of offenses related to the possession of methamphetamine. He contends the trial court miscalculated certain fees. We conclude the fees the trial court imposed were too low, and modify the judgment to reflect the correct amounts. In all other respects, we affirm the judgment.

I. Background

Defendant pled guilty to one count of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and one count of misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)) in case No. CR901869. In case No. CR907915-A, he pled guilty to felony possession of methamphetamine for sale (§ 11378) and admitted a prison term allegation (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to a total term for the two cases of three years eight months. The court also imposed various fines and penalties, including a criminal laboratory analysis fine pursuant to section 11372.5 and a drug program fine pursuant to section 11372.7.

All undesignated statutory references are to the Health and Safety Code.

II. Discussion

Defendant contends the trial court miscalculated his laboratory analysis and drug program fines and related penalties. The trial court ordered defendant to pay a laboratory analysis fine of $50 in each case, plus related penalties, for a total of $345; and a drug program fine of $150 in each case, plus related penalties, for a total of $1,050. Defendant contends the total laboratory analysis fine and penalty assessment should have been $325, and the total drug program fee and penalty assessment should have been $975. The Attorney General argues that, to the contrary, the trial court actually undercharged defendant. The Attorney General is correct.

Defendant made an additional argument in a supplemental opening brief, but has since withdrawn the argument.

The parties agree on the relevant statutes and on the amounts of the fines and penalties attributable to each statute, but disagree on the sum of those amounts. Laboratory analysis fees are authorized by section 11372.5, subdivision (a), which provides in pertinent part: “Every person who is convicted of a violation of Section . . . 11377 [or] 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.” Thus, the base fine pursuant to section 11372.5 is $50 for each of the two qualifying offenses, for a total of $100. In addition the following penalties and fines apply: a penalty of $50 pursuant to Penal Code section 1464 applies to each offense, for a total additional $100; a penalty of $35 for each offense pursuant to Government Code section 76000, for a total additional $70; a state surcharge of $10 for each offense pursuant to Penal Code section 1465.7, for a total additional $20; and under Government Code section 70372, an additional $25 on each section 11372.5 fine for a total of $50, an additional $25 on each Penal Code section 1464 assessment for a total of $50, and an additional $17.50 on each Government Code section 76000 assessment for a total of $35. The sum of those amounts is $212.50 for each case, or a total of $425. Thus, rather than overcharging defendant, the trial court actually undercharged him by $80 when it imposed $345 in laboratory analysis fees and related penalties.

At the time, Penal Code section 1464 provided in pertinent part that “there shall be levied a state penalty in an amount equal to ten dollars ($10) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . .”

At the time Government Code section 76000, subdivision (a) provided in pertinent part: “In each county there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof 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 . . . .”

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.”

At the time Government Code section 70372, subdivision (a) provided: “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 . . . 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 all criminal offenses . . . .”

Defendant’s error appears to stem from the omission of the base fine of $50 per case under section 11372.5 from his calculations.

The drug program fees are based on section 11372.7, subdivision (a), which provides: “Except as otherwise provided in subdivision (b) or (e), each person who is convicted in 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.” Therefore, the base fine under section 11372.7 is $150 for each case, for a total of $300; the penalty under Penal Code section 1464 is an additional $150 for each case, for a total of $300; the penalty under Government Code section 76000 is $105 for each case, for a total of $210; and the surcharge under Penal Code section 1465.7 is $30 for each offense, for a total of $60. The penalties under Government Code section 70372 are an additional $75 on the base fine for each case, or $150 for both cases; an additional $75 on the Penal Code section 1464 assessment for each case, or $150 for both cases; and an additional $52.50 on the Government Code section 76000 assessment, or $105 for both cases. The sum of those amounts is $635.50 for each case, or $1275 for both cases. In ordering defendant to pay only $1,050 in drug program fees and related penalties, the trial court undercharged him.

Before imposing this fine, the court must determine whether the defendant is able to pay the fee. (§ 11372.7, subd. (b).)

Once again, defendant’s miscalculation appears to be the result of failing to include the base fine under section 11372.7 when adding up the amounts defendant owes.

As the Attorney General concedes, the People did not object to the fines and penalties at trial. However, because these fines and penalties are mandatory, the error is a jurisdictional one that may be raised for the first time on appeal. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153, 1157 [appellate court may impose omitted penalties under Penal Code section 1464 and Government Code section 76000]; People v. Stewart (2004) 117 Cal.App.4th 907, 911-912; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257 [appellate court may impose omitted state and county penalties].) Accordingly, the judgment must be amended to reflect the correct amounts.

The drug program fee statute, section 11372.7, contains an exception for defendants who are unable to pay the drug program fee. (§ 11372.7, subd. (b).) Here, of course, the trial court imposed the drug program fee. In those circumstances, we presume the trial court found defendant had the ability to pay the fee. The other fines are mandatory. (People v. Stewart, supra, 117 Cal.App.4th at pp. 911-912.)

III. Disposition

The judgment is modified to impose laboratory analysis fees and related penalties and assessments in a total amount of $425, and to impose drug program fees and related penalties and assessments in the total amount of $1,275, as set forth in more detail herein. The judgment is affirmed as modified. The trial court is directed to amend the abstract of judgment to set forth the fines and accompanying penalties in a manner consistent with the calculations herein (see People v. High (2004) 119 Cal.App.4th 1192, 1200-1201), and to forward a certified copy of the amended abstract to the Department of Corrections.

We concur: RUVOLO, P. J., SEPULVEDA, J.


Summaries of

People v. Langan

California Court of Appeals, First District, Fourth Division
Mar 20, 2008
No. A116891 (Cal. Ct. App. Mar. 20, 2008)
Case details for

People v. Langan

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOEL MARTIN LANGAN, Defendant and…

Court:California Court of Appeals, First District, Fourth Division

Date published: Mar 20, 2008

Citations

No. A116891 (Cal. Ct. App. Mar. 20, 2008)