Opinion
F074987
08-08-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD MICHAEL MENA, Defendant and Appellant.
Jeffrey J. Gale, 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, and Julie A. Hokans, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF166448A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Jeffrey J. Gale, 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, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Meehan, J. and Ellison, J.†
-ooOoo-
Defendant Richard Michael Mena contends on appeal that the trial court erred in imposing a laboratory fee pursuant to Health and Safety Code section 11372.5 (lab fee) and a drug program fee pursuant to section 11372.7. As the People note, defendant's argument in fact addresses only the propriety of the penalty assessments attached to the fees, not the propriety of the fees themselves. Thus, we address only those arguments, and we affirm.
All statutory references are to the Health and Safety Code unless otherwise noted.
Section 11372.5, subdivision (a) provides: "Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the Business and Professions 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."
Section 11372.7, subdivision (a) provides: "Except as otherwise provided in subdivision (b) or (e), each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law."
PROCEDURAL SUMMARY
On December 21, 2016, defendant pled no contest to possession of methamphetamine (§ 11377, subd. (a)) and admitted having suffered a prior felony conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court imposed the agreed-upon four-year prison term—the midterm of two years, doubled pursuant to the Three Strikes law—and imposed various fines and fees, including a $50 lab fee pursuant to section 11372.5, plus a penalty assessment, and a $100 drug program fee pursuant to section 11372.7, plus a penalty assessment.
The reporter's transcript erroneously refers to section 11373.5. --------
On August 18, 2017, defendant wrote the trial court, asserting that the penalty assessments attached to the lab fee and the drug program fee should not have been imposed. The trial court denied the request to strike the assessments.
DISCUSSION
Defendant contends the penalty assessments attached to the lab fee and the drug program fee must be stricken because the fees are not punitive and thus not subject to the assessments. After briefing was submitted by the parties, the California 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 both the lab fee imposed pursuant to section 11372.5 and the drug program fee imposed pursuant to section 11372.7 constitute punishment. (Ruiz, at p. 1122.) Accordingly, they are subject to penalty assessments.
DISPOSITION
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.