Opinion
F076552
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. GARIAN ANTANN MARTIN, Defendant and Appellant.
Carol Foster, 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, Kathleen A. McKenna and John W. Powell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF346085)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. Carol Foster, 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, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Meehan, J. and Ellison, J.†
-ooOoo-
Defendant Garian Antann Martin contends on appeal that (1) the prior drug conviction enhancement imposed pursuant to Health and Safety Code section 11370.2, subdivision (a) must be stricken, and (2) the penalty assessments attached to the criminal laboratory analysis fee (lab fee) imposed pursuant to section 11372.5 must be stricken. We agree with the first contention but not the second. Thus, we strike the prior drug conviction allegation, vacate the sentence, and remand for resentencing.
All statutory references are to the Health and Safety Code unless otherwise noted.
PROCEDURAL SUMMARY
On August 14, 2017, defendant pled no contest to possession of cocaine for purposes of sale (§ 11351) and admitted two prior drug conviction allegations (§ 11370.2, subd. (a)) based on convictions for transporting a controlled substance (§ 11352, subd. (a)). The trial court agreed to strike one of the prior drug conviction allegations and impose a split term of five years.
On September 15, 2017, the trial court imposed the agreed-upon sentence of two years, plus three years on the prior drug conviction enhancement. The court suspended three years of the sentence and granted mandatory supervision during that period. The court imposed various fines and fees, including a $50 lab fee, plus penalty assessments, as described by the probation report.
On November 8, 2017, defendant filed a notice of appeal.
DISCUSSION
I. Prior Drug Conviction Allegation
Section 11370.2 was recently amended by Senate Bill No. 180, which became effective on January 1, 2018. The bill narrows the scope of section 11370.2 to apply only to prior convictions for narcotics sales involving a minor in violation of section 11380. Defendant's prior drug conviction was for transporting a controlled substance (§ 11352).
Section 11370.2, subdivision (a) now provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior conviction resulted in a term of imprisonment." --------
Absent some indication to the contrary in the bill, courts presume the Legislature intended amendments to the Penal Code that reduce the punishment for a crime to apply retroactively, at least in cases which are not yet final. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; see also In re Estrada (1965) 63 Cal.2d 740.) We conclude the same applies here. Nothing in Senate Bill No. 180 indicates the Legislature intended prospective application only. (Stats. 2017, ch. 677, § 1.)
Accordingly, Senate Bill No. 180 applies retroactively to cases in which the judgment was not yet final on January 1, 2018. As the parties agree, it applies to defendant's case and the prior drug conviction allegation must be stricken. II. Lab Fee Penalty Assessment
Defendant contends the penalty assessments attached to the lab fee must be stricken because the lab fee is not punitive and thus not subject to the assessments. After briefing was submitted by the parties, the Supreme Court resolved this issue.
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 the recent case of People v. Ruiz (2018) 4 Cal.5th 1100, the Supreme Court held that the lab fee imposed pursuant to section 11372.5 constitutes punishment. (Ruiz, at p. 1122.) Accordingly, it is subject to penalty assessments.
DISPOSITION
The three-year prior drug conviction enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a) is stricken. The sentence is vacated and the matter remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.