Opinion
F075839
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. GREGORY SCOTT LOWE, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF165514A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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Appellant Gregory Scott Lowe pled no contest to possession for sale of heroin (Health & Saf. Code, § 11351) and admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). On appeal, Lowe contends the court erred in imposing penalty assessments on the laboratory fee (§ 11372.5) and the drug program fee (§ 11372.7). We affirm.
All further statutory references are to the Health and Safety Code, unless otherwise indicated.
FACTS
On September 7, 2016, at approximately 11:26 p.m., a police officer responding to a call of a suspicious person encountered Lowe in an alley in Bakersfield. During a consensual search of Lowe, the officer found two small bindles containing a total of 4.8 grams of heroin, packaging material and $665.
On June 13, 2017, the court sentenced Lowe to a four-year local term, the middle term of three years on his drug conviction and a one-year prior prison term enhancement. The court also imposed a $50 laboratory fee plus $155 in penalty assessments on that fee and a $100 drug program fee plus $310 in penalty assessments on that fee.
DISCUSSION
Lowe contends the court erred in imposing the penalty assessments attached to the laboratory fee (§ 11372.5) and the drug program fee (§ 11372.7) because these fees are not punishment. He relies on People v. Webb (2017) 13 Cal.App.5th 486 (penalty assessments not applicable to program fee) and the analogous cases of People v. Watts (2016) 2 Cal.App.5th 223 (Watts) (penalty assessments not applicable to lab fee) and People v. Martinez (2017) 15 Cal.App.5th 659, 669 (conc. with Webb and Watts). We disagree.
The Supreme Court has granted review in People v. Alford (2017) 12 Cal.App.5th 964 (review granted Sept. 13, 2017, S243340) and several other cases that raise these issues. --------
Penalty assessments apply to any "fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses" and increase such fines, penalties, or forfeitures by a specified amount. (E.g., Pen. Code, § 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).) In People v. Sierra (1995) 37 Cal.App.4th 1690, 1696 (Sierra), we concluded that the program fee (§ 11372.7) is a fine or penalty to which penalty assessments are applicable.
In People v. Martinez (1998) 65 Cal.App.4th 1511, the court applied our reasoning to the lab fee specified in section 11372.5: "Under the reasoning of Sierra, we conclude ... section 11372.5, defines the [lab] 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." (People v. Martinez, supra, at p. 1522; see People v. Sharret (2011) 191 Cal.App.4th 859, 869-870 [because lab fee was punitive in nature, court was required to stay its imposition under Pen. Code, § 654]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1257 [court required to impose state and county penalty assessments on lab fee]; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [abstract of judgment had to be amended to include lab fee imposed because it was "an increment of a fine"]; see also People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [dictum noting that the trial court "had no choice and had to impose" penalties upon the lab fee].)
Some courts, however, have held to the contrary. Watts, which itself noted that its holding was "contrary to the weight of authority," held that the lab fee "is not subject to penalty assessments." (Watts, supra, 2 Cal.App.5th at p. 226; see People v. Vega (2005) 130 Cal.App.4th 183, 193-195 [lab fee is not punishment for purposes of Pen. Code, § 182, subd. (a)].)
Recently, in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz), the Supreme Court held that the laboratory fee and drug program fee were punishment for purposes of the conspiracy statute (§ 182). (Ruiz, at p. 1120-1121.) Although the court declined to decide whether these fees were subject to penalty assessments (id. at p 1122), it nevertheless disapproved of several cases, including Webb, Watts, and Vega, to the extent they were inconsistent with the court's holding. (Id. at p. 1122, fn. 8.) Thus, in accord with our decision in Sierra, we conclude that the laboratory and drug program fees are fines or penalties, that they are subject to penalty assessments, and that the trial court properly imposed penalty assessments on both fees.
DISPOSITION
The judgment is affirmed.