Opinion
F076267
09-06-2018
THE PEOPLE, Plaintiff and Respondent, v. BOBBY LEE MARTIN, Defendant and Appellant.
John F. Schuck, 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, Daniel B. Bernstein and Peter H. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF307787)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. John F. Schuck, 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, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and DeSantos, J.
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In an amended information filed February 21, 2017, defendant was charged with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 2), sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 3), possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 4), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5), possession of ammunition by a felon (§ 30305, subd. (a)(1); count 6). The amended information alleged a great bodily injury enhancement (§ 12022.7, subd. (a)) to count 1; a prior conviction for a controlled substance related crime (see Health & Saf. Code, § 11370.2, subd. (a)) as to counts 3 and 4; enhancements for committing counts 3, 4, 5, and 6, while on bail or on own recognizance (§ 12022.1); two prior strike convictions and two serious felony convictions.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant pled no contest to counts 3 through 6 and their accompanying special allegations. A jury convicted defendant on counts 1 and 2 and found true the great bodily injury enhancement to count 1. In a bifurcated court trial, the court found the prior conviction allegations true. The court granted defendant's Romero motion as to one of his two strike priors.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On count 1, the court sentenced defendant to four years, doubled to eight years pursuant to the strike prior, plus three years for the great bodily injury enhancement plus five years for each of the prior section 667, subdivision (a)(1) convictions for a total term on count 1 of 21 years. On count 2, the court sentenced defendant to a consecutive term of 16 months. On count 3, the court sentenced defendant to a consecutive term of two years, plus three years for the prior controlled substance related conviction (§ 11370.2), plus two years for the out-on-bail enhancement (§ 12022.1), for a total term on count 3 of seven years. On count 4, the court sentenced defendant to a stayed (§ 654) term of four years, plus three years for the prior controlled substance related conviction (§ 11370.2), plus two years for the out-on-bail enhancement (§ 12022.1), for a total term on count 4 of nine years. On counts 5 and 6, the court sentenced defendant to a consecutive 16 months for each count.
The court imposed the following "fees," among others: $100 as a "Criminal Laboratory Analysis Fee pursuant to Section 11372.5 of the Health and Safety Code" and $200 as a "Drug Program Fee pursuant to Section 11372.7 of the Health and Safety Code."
FACTS
Defendant assaulted his 69-year-old neighbor, choking him and cutting him on the neck with a motorcycle key. Defendant told the victim he would be killed if he reported the incident. We do not explore these events in detail because the facts underlying defendant's convictions are not relevant to the issues on appeal.
DISCUSSION
I. The Crime Lab Fee and Drug Program Fee are Subject to Penalty Assessments Under Section 1464
The court imposed $1,170 in fines, fees and assessments. The probation report indicated that $300 of that sum were imposed as state penalty assessments under section 1464, subdivision (a). Such "penalty assessments" are "levied ... 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 ...." (§ 1464, subd. (a)(1).) The $300 penalty assessment at issue here was apparently based on the $100 in criminal laboratory analysis fees (Health & Saf. Code, § 11372.5, subd. (a)) and $200 in drug program fees (Health & Saf. Code, § 11372.7, subd. (a)) imposed against defendant. Defendant argues these two fees are not "fine[s], penalt[ies], or forfeiture[s]" (§ 1464, subd. (a)(1)), and therefore no penalty assessment should have been levied.
The subdivision goes on to exempt "parking offenses." (§ 1464, subd. (a)(1).)
When the parties briefed the present appeal, there was a split of authority as to whether the criminal laboratory and drug program fees were intended to be punishment. Cases like People v. Watts (2016) 2 Cal.App.5th 223 (Watts), disapproved by People v. Ruiz (2018) 4 Cal.5th 1100, 1122, fn. 8, held that the crime-lab fee is "not punishment." (Watts, supra, at p. 235.) As a result, Watts held the fee was "therefore not a 'fine' or 'penalty' " (except in certain circumstances.) (Ibid.)
However, on May 17, 2018, after briefing was completed in this present case, the Supreme Court filed its opinion in People v. Ruiz, supra, 4 Cal.5th 1100, which disapproved Watts and held that the criminal laboratory analysis fee (and the drug program fee) are indeed "punishment." (Ruiz, supra, at p. 1122 & fn. 8.) Thus, Ruiz has disapproved the premise on which Watts and other cases found section 1464 inapplicable. Consequently, we conclude the crime lab and drug program fees are properly subject to penalty assessments under section 1464 and reject defendant's contrary claim. (People v. Sharret (2011) 191 Cal.App.4th 859; People v. Sierra (1995) 37 Cal.App.4th 1690.) II. We Accept the Parties' Concession that Defendant's Enhancements under Health and Safety Code Section 11370 .2 Must be Stricken
The parties agree that if the laboratory analysis fee and drug program fee are fines subject to penalty assessments, they should be stayed as to count 4 pursuant to section 654. We accept this concession. --------
As noted above, defendant received sentence enhancements to counts 3 and 4 under Health and Safety Code section 11370.2. That statute used to provide for sentence enhancements for defendants with prior convictions for certain drug crimes. Senate Bill 180, which went into effect January 1, 2018, abolishes most of these enhancements, including the ones alleged and proven against defendant. (Stats. 2017, ch. 677, § 1.) The parties agree that, as a result, this court should strike defendant's enhancements under Health and Safety Code section 11370.2 as to counts 3 and 4. We accept this concession and order the enhancements stricken. III. We Accept the Parties' Concession that the Abstract of Judgment Should be Corrected
The parties also agree that the abstract of judgment must be corrected in several respects. First, the abstract incorrectly indicates defendant sustained four prior serious felony convictions (§ 667, subd. (a)), but only two such priors were alleged and found true. Second, the abstract indicates that a lab fee imposed under Health and Safety Code section 11372.5, subdivision (a) totaled $1,170.00. In actuality, that number is the total of all fines and fees imposed. The lab fee itself was only $100. Thus, the parties agree the abstract should be corrected to show the correct laboratory fee amount of $100, as well as a breakdown of other fines, fees, and assessments.
DISPOSITION
The enhancements to counts 3 and 4 imposed under Health and Safety Code section 11370.2 are stricken. The laboratory analysis fee and drug program fee imposed as to count 4 are stayed pursuant to section 654. The trial court is directed to correct the abstract of judgment so that it reflects that two (not four) prior serious felony convictions (§ 667, subd. (a)) were found true; that the lab fee imposed under Health and Safety Code section 11372, subdivision (a) was $100, not $1,170; and to include a breakdown of the $1,170 in fines, fees, and assessments imposed. As modified, the judgment is affirmed and the matter remanded.