Opinion
H031607
5-15-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTHONY LOZANO, Defendant and Appellant
NOT TO BE PUBLISHED
Defendant Jose Anthony Lozano was convicted by plea of several counts, including one for violation of Health and Safety Code section 11550, subdivision (a)—using or being under the influence of a controlled substance. At sentencing, the trial court imposed a mandatory $50 lab analysis fee under Health and Safety Code section 11372.5, subdivision (a), with respect to this count and it further imposed penalty assessments on this amount of $117.50. Defendant challenges the penalty assessments based on the contention that the lab analysis fee is not a penalty or fine to which penalty assessments may be added. We reject this contention and affirm the judgment.
STATEMENT OF THE CASE
We dispense with the details of the underlying facts as they are not relevant to the issue on appeal. We simply say that defendant, while driving, was involved in a car accident involving multiple vehicles in which several people were injured. Defendant ultimately attempted to flee the scene and he was later determined to have been under the influence of alcohol and phencyclidine (PCP).
Defendant was charged by information with violation of Vehicle Code sections 23153, subdivision (a) and 23558, driving under the influence of alcohol and drugs proximately causing injury to more than one person (count 1); violation of Vehicle Code sections 23152/23550.5, subdivision (a), driving under the influence of a drug with a felony prior within 10 years (count 2); violation of Vehicle Code section 20001, subdivisions (a) and (b)(1), hit and run accident resulting in injury or death (count 3); violation of Vehicle Code section 20002, subdivisions (a)(1) and (2), hit and run driving causing property damage, a misdemeanor (count 4); and violation of Health and Safety Code section 11550, subdivision (a), being under the influence of a controlled substance, a misdemeanor (count 5).
The information further alleged that defendant had suffered a prior conviction for driving under the influence with respect to count 1; four prison priors within the meaning of Penal Code section 667.5, subdivision (b); two prior strike convictions within the meaning of Penal Code sections 667, subdivisions (b)-(i)/1170.12; and two prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a).
The four prior conviction allegations under Penal Code section 667.5, subdivision (b), were later dismissed, as was one prior strike conviction and one prior serious felony conviction. Defendant then pleaded no contest to all five counts and admitted all remaining enhancement allegations. The court later sentenced him to the midterm of four years on count 1 (doubled as a result of the prior strike) plus an additional three years for causing injury to three victims plus three additional years for the great bodily injury enhancement for a total of 10 years on this count; the midterm of four years on count 2, stayed under Penal Code section 654; the midterm of one-third of four years, or 16 months, on count 3, consecutive to the sentence on count 1; plus five years for the prior serious felony conviction, for a total term of 16 years, four months. The court denied probation and sentenced defendant to 90 days on the misdemeanor counts 4 and 5, which was concurrent and deemed satisfied at the time of sentencing by defendant already having served the time.
At sentencing, the court imposed a "$50 lab analysis" fee and penalty assessments on this amount of $117.50. The court did not specify under what statutory authority it imposed either the base fee or the assessments. Nor did it provide a calculation of the penalty assessments.
Defendant appealed "based on the sentence or other matters occurring after the plea," a matter that is appealable without a certificate of probable cause otherwise required under Penal Code section 1237.5 under Rule 8.304(b)(4) of the California Rules of Court. Although defendant did not object below to the imposition of the penalty assessments, this issue is cognizable on appeal nonetheless because an unauthorized sentence may be corrected at any time. (People v. Burnett (2004) 116 Cal.App.4th 257, 260-261.)
DISCUSSION
Defendant does not challenge the imposition of the $50 lab analysis fee, which was required under Health and Safety Code section 11372.5, subdivision (a), by reason of his conviction under Health and Safety Code section 11550, subdivision (a), for being under the influence of a controlled substance. But, as his sole contention on appeal, he challenges the $117.50 imposed in penalty assessments on the $50 lab analysis fee. As the basis for his challenge, defendant asserts that the lab analysis fee under Health and Safety Code section 11372.5 is in the nature of an administrative fee—not a penalty or fine that is punitive in nature—and it is therefore not subject to the addition of penalty assessments under Penal Code section 1464, subdivision (a)(1), or Government Code section 76000, subdivision (a)(1), both of which provide for penalty assessments on criminal fines (except under certain circumstances not present here under Pen. Code, § 1464, subd. (d), see fn. 5, infra) and which were likely the bases of the penalty assessments here.
Health and Safety Code section 11372.5, subdivision (a), provides in pertinent part that "[e]very person who is convicted of a violation of section . . . 11550 . . . of this 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. [¶] 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." (Italics added.)
Penal Code section 1464, subdivision (a)(1), now provides in pertinent 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 all criminal offenses, including all offenses, except parking offenses . . . ." This section was amended effective January 1, 2008, but not in any material respect that would affect the outcome of this appeal. (Stats.)
Government Code section 76000, subdivision (a)(1), now requires each county to levy "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, . . ." As with Penal Code section 1464, this section was amended effective January 1, 2008, but not in any material respect that would affect the outcome of this appeal. (Stats. 2007, ch. 302, § 4.) Subdivision (e) of the 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."
Because defendant does not challenge the calculation or derivation of the amount of penalty assessments, there is no reason for us to either determine whether they were calculated correctly or remand for the trial court to provide the statutory basis for its calculation. We observe, however, that 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, when necessary, make the requisite factual findings. (See, People v. High (2004) 119 Cal.App.4th 1192, 1200.)
"Additional penalties, or assessments, are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses. This requirement is mandated by Penal Code section 1464 and Government Code section 76000." (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694 (Sierra ), fn. omitted.) Thus, under Sierra, the trial court was obligated to impose the penalty assessments under these sections if the lab analysis fee is properly characterized as a fine, penalty, or forfeiture.
In Sierra, the appellate court directly addressed the question whether a penalty assessment may be charged under Health and Safety Code section 11372.7, which, subject to a defendants ability to pay, requires persons convicted of certain drug offenses listed in the Health and Safety Code to "pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense." (Health & Saf. Code, § 11372.7, subd. (a).) The court pointed out that the fee imposed under Health and Safety Code section 11372.7, subdivision (a), is described as both a fine and a penalty within that subdivision. (Sierra, supra, 37 Cal.App.4th at p. 1695.) The court held that "[t]he only reasonable interpretation of [this section] is that it is a fine and/or penalty to which the penalty assessment provisions of Penal Code section 1464 and Government Code section 76000 apply." (Id. at p. 1696.)
In People v. Martinez (1998) 65 Cal.App.4th 1511 (Martinez ), the court of appeal extended the reasoning of Sierra to the laboratory analysis fee imposed by Health and Safety Code section 11372.5. The court held: "Under the reasoning of Sierra, we conclude that 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." (Martinez, supra, 65 Cal.App.4th at p. 1522; see also People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [describing laboratory analysis fee as a fine that must be recorded in the abstract of judgment].)
In People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen ), the California Supreme Court addressed a closely related issue—whether the trial court has discretion to waive penalties under Penal Code section 1464. (Talibdeen, supra, 27 Cal.4th at p. 1153.) The court noted that in that case, at sentencing, "the trial court imposed . . . a laboratory analysis fee of $50 pursuant to Health and Safety Code section 11372.5, subdivision (a). 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, . . ." (Ibid., fn. omitted.) Thus, in Talibdeen, the court proceeded on the basis that penalty assessments applied to a laboratory analysis fee under Health and Safety Code section 11372.5 did not constitute an illegal sentence. (Id. at p. 1153 and fn. 2.) The court went on to hold that the trial court has no discretion in this matter and the assessment of such penalties is mandatory. (Ibid.)
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.)
Defendant argues that Talibdeen is not controlling because it did not decide the issue directly at hand and only assumed without deciding that penalty assessments attach to the lab analysis fee under Health and Safety Code section 11372.5. But we conclude that the courts assumption in Talibdeen is sufficient to express its approval of this conclusion. And while defendant concedes that both Sierra and Martinez hold contrarily to the contention he asserts—that the laboratory analysis fee is not a fine or penalty to which penalty assessments attach—he argues that these cases are wrongly decided and that we should reject them and instead follow People v. Vega (2005) 130 Cal.App.4th 183 (Vega).
In Vega, the defendants were convicted of conspiracy to transport cocaine and to possess cocaine for sale, but they were neither charged with nor convicted of the offenses of transporting or possessing cocaine. (Vega, supra, 130 Cal.App.4th at pp. 186-187.) The issue on appeal was whether the court was authorized to impose a lab analysis fee under Health and Safety Code section 11372.5, which mandates such a fee for transportation and possession convictions but is silent as to whether the fee applies to a conviction for conspiracy to commit those same crimes. (Vega, supra, at pp. 193-194.) Although the failure to include conspiracy offenses in Health and Safety Code section 11372.5 suggested the fee was inapplicable, the court held that because conspiracies under Penal Code section 182 are punished in the same manner and to the same extent as the underlying felony, the dispositive question was whether the lab analysis fee constituted punishment. (Vega, supra, at p. 194.) The court held that the fee is not punishment, reasoning in part that charges purpose is not retribution or deterrence but is instead to defray administrative costs. Because the court held the lab analysis fee was not properly imposed, it ordered the base fee and the associated penalty assessments stricken. (Id. at p. 195.)
Plainly, Vega addressed whether the laboratory analysis fee applied to the conviction in the first instance—something defendant does not contest here—not whether penalty assessments were properly appended to the fee. Contrary to defendants contention, Vega did not decide or even consider whether penalty assessments apply to a properly imposed lab analysis fee. Furthermore, we are not convinced that Vegas conclusion that the lab analysis fee is not "punishment" under Penal Code section 182 undermines the rationale of Sierra and Martinez. The Legislature intended penalty assessments to be appended to drug program and laboratory analysis fees. (Sierra, supra, 37 Cal.App.4th at pp. 1695-1696; Martinez, supra, 65 Cal.App.4th at pp. 1521-1522.) That legislative intent is not dependent upon whether such fees are punishment for the purpose analyzed in Vega—a purpose not relevant to the issue presented here, which is whether the lab analysis fee is a penalty for purposes of imposing additional penalty assessments in the first instance. We conclude, therefore, that Vega is arguably not inconsistent with Sierra or Martinez and, furthermore, that it does not control here. We agree with the Sierra and Martinez courts that the fee is, at least in part, a penalty under the very wording of Health and Safety Code section 11372.5.
In sum, we reject defendants claim that the term "criminal laboratory analysis fee" is a more specific term that trumps all of the other indications that lead us to conclude that the Legislature intended the charge imposed by Health and Safety Code section 11372.5 as additional punishment for certain drug offenses and that it is subject to penalty assessments. The Sierra and Martinez courts rejected very similar arguments and we agree with their reasoning.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
McAdams, J.