Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR023984, Edward P. Moffat II, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J.; Levy, J.; and Hill, J.
INTRODUCTION
Appellant Esmeralda Vasquez Maciel was convicted after jury trial of possessing methamphetamine for purpose of sale. (Health & Saf. Code, § 11378.) She was placed on probation for a period of five years. The court ordered her to pay a $50 criminal laboratory fee pursuant to Health and Safety Code section 11372.5 (lab fee) plus penalty assessments on this amount for a total of $162.50. It also ordered her to pay a $200 fine pursuant to Penal Code section 672 (Penal Code section 672 fine) plus penalty assessments on this amount for a total of $650.
Appellant challenges admission of opinion testimony that she possessed the methamphetamine for sale. We are not persuaded. Appellant also argues the lab fee is a fine and therefore the catch-all Penal Code section 672 fine is unauthorized. We agree and will modify the judgment to strike the Penal Code section 672 fine and associated penalty assessments. As modified, we will affirm.
FACTS
On January 19, 2006, appellant’s home was searched pursuant to a warrant. A bag of crystal methamphetamine was discovered resting on a toothpaste tube in the master bathroom. Three rolled towels in the bathroom were found to each contain a clear plastic bag containing crystal methamphetamine. One of the rolled towels contained a tube of hydrocortisone cream prescribed to appellant and a pay/owe sheet. A digital scale was found in a vase on the master bathroom counter. A prescription bottle containing two pieces of crystal methamphetamine and $496 were found inside appellant’s purse. A digital scale was found inside a pancake mix box in the kitchen pantry. This scale tested presumptively positive for methamphetamine residue. Plastic baggies were found in the kitchen. A plastic baggie with a torn corner was found inside a kitchen drawer. The torn baggie contained methamphetamine residue. A digital scale was found among linens and tablecloths in a kitchen drawer and another digital scale was found inside a bowl on a cupboard shelf. The parties stipulated that the total gross weight of the methamphetamine seized at the house was 7.4 grams and that five of the six containers in which methamphetamine was found contained usable quantities of the drug.
During the People’s direct examination, City of Madera Police Officer Giachino Chiaramonte opined that, based on his experience and training, appellant possessed the methamphetamine for the purpose of sale. His opinion was based on, inter alia, the individual packaging and amount of drug in each package, the location where the drugs were found, the presence of four scales, the plastic baggie with the corner torn off, the large amount of cash and the methamphetamine that were found in appellant’s purse.
Defense counsel objected to admission of Chiaramonte’s opinion whether he believed the methamphetamine was possessed for purpose of sale or personal use on the ground that it called for an opinion on an ultimate issue. The objection was overruled.
During cross-examination by defense counsel, City of Madera Police Officer Brian Esteves opined that, based upon the entirety of the circumstances, the methamphetamine was possessed for purpose of sale. While the methamphetamine could have been possessed for personal use, he did not “believe so in this case.”
City of Madera Police Officer Feliciano Manzano was called as a defense witness. He testified on direct examination that the methamphetamine could have been possessed for personal use or for sale. During the prosecutor’s cross-examination, Manzano opined that the methamphetamine was possessed for the purpose of sale.
DISCUSSION
I. The Penal Code section 672 fine is unauthorized.
Appellant argues that because the court imposed a lab fee and associated penalty assessments pursuant to Health and Safety Code section 11372.5, the Penal Code section 672 fine and associated penalty assessments are unauthorized. We agree. Imposition of a fine pursuant to Penal Code section 672 is proper only when no other fine has been imposed. (See People v. Breazell (2002) 104 Cal.App.4th 298, 302-304 (Breazell).) Therefore, the issue before us turns on the determination whether a “criminal laboratory analysis fee” imposed pursuant to Health and Safety Code section 11372.5 is a fee or a fine. As will be explained, we conclude that it is properly characterized as a fine.
Historically, a lab fee has been viewed as a fine subject to penalty assessments, despite the statutory description of the charge as a fee. (People v. Jordan (2003) 108 Cal.App.4th 349, 368 [lab fee is a fine and requires penalty assessments]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257 [same] People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [same]; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [lab fee is a fine]; People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154 [assumes lab fee is a fine].) Failure to impose a lab fee or the associated penalty assessments, when statutorily required, results in an unauthorized sentence. (People v. Talibdeen, supra, 27 Cal.4th at p. 1157; People v. Moore (2003) 105 Cal.App.4th 94, 97, 101.)
People v. Vega (2005) 130 Cal.App.4th 183 (Vega) reached a contrary conclusion. In Vega, Division Seven of the Second District Court of Appeal held that the lab fee applies to drug conspiracy offenses. In relevant part, the court concluded that the lab fee is not a fine because the Legislature intended monies received pursuant to Health and Safety Code section 11372.5 are to defray administrative costs and the charge is labeled as a fee in the statutory language. (Id. at pp. 194-195.)
We are not persuaded by Vega’s reasoning and agree with the line of authority characterizing the lab fee as a fine. We reject the position that the term “criminal laboratory analysis fee” used in the statutory language trumps all of the other indicators supporting the conclusion that the Legislature intended the lab fee as additional punishment for certain drug offenses. Despite the use of the term “fee” in the statutory language, the Legislature intended penalty assessments to be appended to drug program and laboratory analysis fees. Imposition of penalty assessments is consistent with a fine. Laboratory fees are imposed only in criminal cases, upon persons convicted of specified drug offenses. The language of section 11372.5 does not indicate that the charges are, in effect, administrative user fees. The fee is not expressly linked to the actual administrative costs incurred on account of defendants who are convicted of the specific offenses listed in the statute. The fees are transmitted by the courts to the county treasurer in the same way as other criminal fines, forfeitures and other monies are transmitted, and the fees collected are earmarked for specified law enforcement related purposes. (Health & Saf. Code, § 11372.5, subd. (b).)
Therefore, because the lab fee is a fine the court erred as a matter of law by imposing a Penal Code section 672 fine. The proper remedy is to strike the unauthorized fine and associated penalty assessments. (Breazell, supra, 104 Cal.App.4th at p. 305.)
II. Admission of testimony opining that appellant possessed the methamphetamine for sale was not an abuse of discretion and did not infringe her jury trial right.
Relying on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), appellant argues that neither Chiaramonte nor Manzano should have been permitted to express an opinion on the issue of the purpose for which the methamphetamine was possessed. We are not convinced.
Trial judges are given considerable latitude in determining the scope of an expert’s testimony. Their rulings will not be disturbed on appeal unless a manifest abuse of discretion is shown. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1227 (Harvey).)
It has long been recognized that a police officer with experience in narcotics may give his opinion whether the narcotics were held for purpose of sale or for personal use. People v. Hunt (1971) 4 Cal.3d 231 (Hunt) explains:
“In cases involving possession of marijuana and heroin, it is settled that an officer with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale based upon matters such as quantity, packaging, and the normal use of an individual. On the basis of such testimony convictions of possession for purposes of sale have been upheld. [Citations.]” (Hunt, supra, 4 Cal.3d at p. 237.)
An opinion that drugs were possessed for sale is admissible even though it embraces the ultimate issue of fact in the case. (People v. McDonald (1984) 37 Cal.3d 351, 371, overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914.) California has abandoned the “‘ultimate issue’” rule. (Ibid.) Evidence Code section 805 provides: “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.”
Appellant’s reliance on Killebrew, supra, 103 Cal.App.4th 644 is misplaced. There, expert opinion testimony concerning subjective knowledge of a gun’s presence and possession of the requisite specific intent was elicited through the use of hypothetical questions. This court found the testimony inadmissible because it lacked a legally adequate underlying evidentiary basis. (Id. at p 658.) No evidentiary insufficiency is present in this case. The officers’ opinions were based on the drugs and other evidence seized from appellant’s home and not upon a factually unsupported hypothetical.
Therefore, we conclude the trial court neither abused its discretion nor infringed appellant’s jury trial right by admitting opinion testimony that she possessed the methamphetamine for purpose of sale. (Hunt, supra, 4 Cal.3d at p. 237; Harvey, supra, 233 Cal.App.3d at pp. 1228-1229.)
DISPOSITION
The judgment is modified to strike the fine imposed pursuant to Penal Code section 672 and the associated penalty assessments. As modified, the judgment is affirmed.