Opinion
D069501
12-20-2016
THE PEOPLE, Plaintiff and Respondent, v. ROMAN MENDOZA, Defendant and Appellant.
Avatar Legal and Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Theodore M. Cropley and Stephanie H. Chow, Deputy Attorneys General.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD260979) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Reversed and remanded with directions. Avatar Legal and Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Theodore M. Cropley and Stephanie H. Chow, Deputy Attorneys General.
Roman Mendoza appeals from a judgment of conviction after he pleaded guilty to two counts of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted that, for each count, he had previously been convicted of selling methamphetamine (§ 11370.2, subd. (c)). The plea agreement states, "District attorney agrees to a 7 year recommended sentence (split to be determined)."
All statutory references are to the Health and Safety Code unless otherwise specified.
Accepting the plea, the court stated, "[Y]ou will [stipulate] to seven years in prison that the court will be splitting, that is part of it will be served in custody, part of it on mandatory supervision. [¶] Is that your understanding of the plea bargain?" Mendoza replied, "Yes."
However, at sentencing, with the benefit of a probation report stating Mendoza is an undocumented person who had been previously deported three times for criminal activity, and was now subject to an Immigration and Customs Enforcement (ICE) hold, the court determined Mendoza was not eligible for a split sentence. The court also determined that Mendoza was not suitable for mandatory supervision because he had previously violated probation and had demonstrated "consistent and incessant criminality." The court sentenced Mendoza to all seven years in custody.
An "ICE hold" refers to a process in which Immigration and Customers Enforcement takes custody of an inmate for possible deportation. (See discussion in Guzman v. Swarthout (E.D. Cal., Oct. 18, 2011, No. CIV S-11-1385 GGHP) 2011 WL 4954204, 2011 U.S. Dist. Lexis 120451, fn. 4.)
On appeal, Mendoza contends: (1) his plea agreement required the court to impose a split sentence; (2) the court erred by deviating from the plea without first giving Mendoza an opportunity to withdraw his guilty plea; (3) the matter should be remanded with directions that the court either abide by the plea and determine a split sentence, or allow Mendoza to withdraw his plea; (4) on remand, the court should be directed that Mendoza's immigration status does not render him per se ineligible for a split sentence; (5) the court imposed an unauthorized sentence by imposing two enhancements that were both based on a single prior conviction; (6) the court improperly added penalty assessments to the drug program fee imposed under section 11372.7; and (7) the court improperly added penalty assessments to the drug laboratory fee imposed under section 11372.5.
We agree with Mendoza that his plea agreement required the court to impose a split sentence. Although at sentencing the court was free to disapprove the plea agreement, the court may not unilaterally modify the terms of the bargain without affording the defendant an opportunity to withdraw the plea. (People v. Silva (2016) 247 Cal.App.4th 578, 587 (Silva).)
Accordingly, we reverse the judgment and remand with directions to allow Mendoza an opportunity to withdraw his plea. As explained post, we reject Mendoza's other assertions of error.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal arises from a guilty plea, the basic facts giving rise to the charges against Mendoza are taken from the probation officer's report. (See People v. Barasa (2002) 103 Cal.App.4th 287, 290, fn. 1 ["As the matter involves pleas of guilty, facts are taken from the probation reports."].)
From September 2014 to February 2015, police conducted a series of methamphetamine purchases utilizing a confidential source. On January 7, 2015, Jose Rodriguez sold 58.2 grams of methamphetamine to the confidential source for $1,300. After the confidential source asked to purchase more methamphetamine, Rodriguez said he would call his supplier. After making a call, Rodriquez said his supplier would meet him at a nearby grocery store parking lot to deliver the methamphetamine. A short time later, Rodriguez walked over to a white truck driven by Mendoza and returned with 29.2 grams of methamphetamine that he sold to the confidential source.
On January 29, 2015, Rodriguez met with the confidential source at the same grocery store parking lot. Rodriguez walked over to Mendoza's truck, where Mendoza was in the passenger seat. After leaving the truck, Rodriguez returned to the confidential source with 58.6 grams of methamphetamine, which he sold to the confidential source for $1,400.
On February 11, 2015, the confidential source called Rodriguez to arrange another methamphetamine purchase at the grocery store parking lot. About 30 minutes later, Rodriguez arrived at Mendoza's residence, where Mendoza handed an object to him. Rodriguez put the object in the trunk of his car and drove to the grocery store parking lot. Rodriguez retrieved the object, containing 58.8 grams of methamphetamine, and sold it to the confidential source for $1,300.
On February 24, 2015, police executed a search warrant at Mendoza's residence. Upon entering the residence, police found Mendoza in a bathroom attempting to flush methamphetamine down the toilet. Police found two small baggies with 19.2 grams of methamphetamine in the wastebasket and on the bathroom floor, along with empty plastic bags and wrappers. There were also two small scales and individual packaging baggies in the bathroom. After admonishing Mendoza, police asked him if he ran out of time to flush the drugs down the toilet, and Mendoza "chuckled and nodded affirmatively."
In February 2015 the San Diego County District Attorney filed a complaint charging Mendoza with three counts (counts 5, 6, and 7) of selling a controlled substance in violation of section 11379, subdivision (a). As to each, the complaint alleged Mendoza had a prior conviction for sale of a controlled substance within the meaning of section 11370.2, subdivision (c). The complaint also alleged Mendoza served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
In September 2015 the district attorney filed an amended complaint that added a new count (count 8) alleging possession of a controlled substance, apparently based on the methamphetamine Mendoza possessed in his residence when the search warrant was being executed. However, Mendoza was never arraigned on that amended complaint and the prosecution withdrew it.
On September 1, 2015, Mendoza was offered a plea bargain that would have resulted in a five-year sentence, split with either two, three or four years in local custody and the remaining time on mandatory supervision. The court advised Mendoza that "after today, that deal is gone." After Mendoza declined to accept that offer, the court set the preliminary hearing for September 16, 2015.
On September 16, 2015, before the preliminary hearing began, Mendoza pleaded guilty to two counts of selling methamphetamine (counts 5 and 6), each with an enhancement for a prior conviction of selling methamphetamine. The guilty plea form states: "District Attorney agrees to a 7 year recommended sentence (split to be determined)." In exchange, the court dismissed the remaining count and a prison prior allegation. After accepting Mendoza's plea, the court ordered "a full probation report."
In October 2015 the probation officer prepared a report noting that Mendoza, who was 39 years old at the time of the instant offenses, has a criminal record starting in 2002 that includes two felony convictions for possessing a controlled substance (§ 11350, subd. (a)) and selling a controlled substance (§ 11379, subd. (a)). Previously, Mendoza had obtained two grants of summary probation and one grant of formal probation, which ultimately resulted in a prison commitment. After serving a prison sentence for his second felony conviction, Mendoza was deported to Mexico, but then returned to San Diego County, where he committed the instant offenses.
The probation report also stated Mendoza was born in Mexico and remained there until the age of 15 or 16, when he entered the United States illegally. The probation report stated, "There is a current ICE hold and [Mendoza] may be subject to deportation proceedings." Under the heading, "Future Plans," the probation officer wrote, "His future plans include remaining in Tijuana, Mexico, given he will be deported to Mexico."
The probation report states Mendoza is "not a suitable candidate for split sentencing given his undocumented status and he may be subject to deportation proceedings." It recommended a concurrent seven-year term on count 6, calculated in the same manner.
At the sentencing hearing, the court acknowledged reading the probation report. The deputy district attorney advised the court that Mendoza had been "deported on three previous occasions and reentered the country illegally" after each. Mendoza's attorney argued, "Mr. Mendoza is deserving of a split sentence." She portrayed Mendoza as a hard working "family man," with four children who "built a life here and raised children and has lived here in this community." Counsel noted that Mendoza "made efforts to run a business" with "two employees." She submitted letters stating Mendoza "was a nice person, very respectful, honest, happy and helpful . . . ." She added, "he's documented that he and his family are members of a Catholic church." Counsel noted that Mendoza's children were doing well in school and stated Mendoza deserved credit for ensuring "his children do whatever they can to live a normal life here in the U.S. and to reap the benefits of being educated." Asserting Mendoza's immigration status did not render him ineligible for a split sentence, she asked the court to consider "three years of mandatory supervision."
The prosecutor disagreed, characterizing Mendoza as "a very sophisticated drug dealer" who "has shown incessant criminality" and had been "deported and three times he's illegally returned to this country." The prosecutor noted Mendoza sold over a quarter pound of methamphetamine in the three counts alleged in this case. He stated Mendoza "is not an appropriate candidate for a split, and the court in its discretion should deny that." Commenting that Mendoza had unsuccessfully completed probation in the past, the prosecutor said, "He was given the chance to succeed, and ultimately, he chose not to and was sentenced to prison in that case."
Responding to Mendoza's arguments for a split sentence, the prosecutor emphasized that Mendoza denies having any drug problem—he is a seller, not a user, and therefore "any treatment would be inappropriate for him." The prosecutor asked the court to sentence Mendoza "to the seven years. That was the bargain . . . ." He added that Mendoza "is not an appropriate candidate for a split" because "he has come back three times illegally, he has been deported three times . . . but more than that, I want the court to focus on his incessant criminality, his increasing criminality, and the amount of methamphetamine he is moving into the community." The prosecutor remarked, "If he's such a devoted father and husband, why is he storing meth[amphetamine] in an amount of a minimum of 19.2 grams, which is what was located in his house . . . and trying to flush it down the toilet when the officers get there?"
The court noted the plea agreement was for seven years' custody, and "[t]he issue before the court is whether or not that period of time should be split, and if so, how should it be split?" The court determined Mendoza was not eligible for mandatory supervision because "he came back into the country illegally after three times being deported." The court stated, "[T]he whole idea of mandatory supervision is to give probation an opportunity to supervise you within the community, and based on an ICE hold and his being subject to deportation, they will have no ability to supervise."
Additionally, apart from eligibility, the court determined Mendoza was not suitable for mandatory supervision. After noting the purpose of mandatory supervision is rehabilitation, the court stated:
"He picks up his first criminal offense in 2002. That's by way of a DUI. While he's on probation for that case—and was not a licensed driver at the time—he picks up in less than a year a crime of driving without a license, so he still doesn't have a license, but he's still driving, still on probation for his DUI, and a short time later, picks up yet a second DUI and that happens in 2006, where he suffered a probation violation. [¶] . . .
"While he is on probation for that case, he picks up the first [section] 11379, that is the sales case . . . with almost $3,000 of methamphetamine. The defendant pled guilty to that, got two years in state prison, presumably was deported sometime after that, reentered the country to commit this current crime.
"What's especially disturbing to the court about this crime is there were numerous instances where Mr. Mendoza was directly involved in the sale of the methamphetamine with codefendant Rodriguez. But in addition to that, when it's clear that—at least to law enforcement that Mr. Mendoza was the supplier and they arrive at his home to conduct a search, he is in the process of destroying this methamphetamine which is in the house with his precious children. And not only does he destroy the evidence or attempt to destroy it and admit that he's destroying it, but when officers confront him about that fact, that he just didn't have enough time, he chuckles, and basically nods his head, 'Yes, I didn't have enough time to destroy it.'
"I think, clearly, he is not looking for rehabilitation for any drug issue because he doesn't have a problem using drugs. I don't see a single drug possession or use charge. Mr. Mendoza's problem is that he sells drugs . . . . [¶] . . .
"So for all those reasons, the fact that he has violated on essentially every term of probation he ever been granted, I do not think that he's a suitable candidate for mandatory supervision pursuant to [California Rules of Court] rule 4.408([a]), the consistent and incessant criminality, and the court is going to exercise its discretion not to split the sentence in this case."
The court sentenced Mendoza to seven years in custody by imposing the upper term of four years on count 5, plus three years for the prior conviction enhancement under section 11370.2, subdivision (c). The court imposed the same sentence for count 6 and its enhancement, to run concurrently with count 5.
DISCUSSION
I. THE PLEA AGREEMENT REQUIRED A SPLIT SENTENCE; THEREFORE, THE
TRIAL COURT COULD NOT IMPOSE A HARSHER SENTENCE WITHOUT
AFFORDING MENDOZA AN OPPORTUNITY TO WITHDRAW HIS PLEA
A. The Plea Agreement Required a Split Sentence
"A split sentence is a hybrid sentence in which a trial court suspends execution of a portion of the term and releases the defendant into the community under the mandatory supervision of the county probation department. Such sentences are imposed pursuant to Penal Code section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part of the '2011 Realignment Legislation addressing public safety.'" (People v. Camp (2015) 233 Cal.App.4th 461, 464, fn. 1.) "'Under the Realignment Act, qualified persons convicted of nonserious and nonviolent felonies are sentenced to county jail instead of state prison. [Citation.] Trial courts have discretion to commit the defendant to county jail for a full term in custody, or to impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision.'" (Id. at p. 467.)
Mendoza contends that under his plea agreement, as evidenced by the words "split to be determined" on his plea form, the trial court was required to impose a split sentence, with only the amount of time split between custody and supervision to be decided at sentencing. He asserts that in failing to do so, the court imposed a sentence that violated the plea bargain. The Attorney General disagrees, asserting the parties agreed only that the trial court would consider imposing a split, but the court was not required to do so.
"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles." (People v. Shelton (2006) 37 Cal.4th 759, 767.) "'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." [Citations.]' [Citation.] 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.'" (Ibid.)
Mendoza's plea form states: "District Attorney agrees to a 7 year recommended sentence (split to be determined)." The phrase "split to be determined" is ambiguous. It could reasonably mean Mendoza is to receive a split sentence, with only the amount of time split between custody and mandatory supervision to be determined at sentencing. Or, it could reasonably mean whether a split sentence would be imposed and if so, the amount of time split between custody and supervision is to be determined at sentencing.
We therefore consider extrinsic evidence of the parties' intent. In making this determination, the explanation of the plea bargain that the trial court provided to Mendoza during the plea colloquy is significant because that discussion occurred immediately after the parties entered into the plea bargain, in the presence of Mendoza, his attorney, and the prosecutor. It therefore reflects the contemporaneous understanding of the parties before this dispute arose.
Before accepting Mendoza's plea, the court explained its understanding of the terms of the plea agreement and asked Mendoza whether his understanding of the relevant terms was the same:
"The Court: The form tells me that you are going to plead guilty to [c]ounts 5 and 6, and also the allegation pursuant to [section] 11370.2 [, subdivision] (c). In exchange for that you will [stipulate] to seven years in prison that the court will be splitting, that is part of it will be served in custody, part of it on mandatory supervision. [¶] Is that your understanding of the plea bargain.
"Mr. Mendoza: Yes."
We agree with Mendoza's argument that in this colloquy, some amount of mandatory supervision would be part of the sentence. The court did not equivocate. The court did not state it "might," split the term, or "may" split, or "could" split—depending upon a later determination of Mendoza's eligibility and suitability for mandatory supervision.
Rather, the court stated it "will be splitting" the sentence, with "part of it on mandatory supervision." There were no ifs, ands, or buts. Mendoza replied this was also his understanding. The prosecutor did not object or in any other manner indicate a different understanding of the plea bargain, thus indicating the People's assent.
Plea agreements are interpreted according to the general rule "'that ambiguities are construed in favor of the defendant. Focusing on the defendant's reasonable understanding also reflects the proper constitutional focus on what induced the defendant to plead guilty.'" (People v. Toscano (2004) 124 Cal.App.4th 340, 345 (Toscano), italics omitted.) Here, there is no doubt about Mendoza's reasonable understanding. The court said it "will be splitting" the sentence, asked if this was also Mendoza's understanding, and Mendoza said it was.
The Attorney General contends the plea agreement should be interpreted as giving Mendoza the possibility, but not a guarantee, of a split sentence. The Attorney General observes this interpretation is also consistent with the phrase, "split to be determined." The Attorney General also notes that at the sentencing hearing, Mendoza's lawyer never argued the court was required to impose mandatory supervision. Instead, defense counsel first addressed whether Mendoza was eligible for supervision and, if so, whether the court should exercise its discretion to grant mandatory supervision.
The inferences the Attorney General draws from these facts are reasonable. However, they cannot overcome the persuasive force of the court's unequivocal statement, made contemporaneously with taking the plea, that the court "will be splitting" the sentence. We are required to resolve the plea ambiguity on an objective standard in which the defendant's "reasonable understanding" controls. (Toscano, supra, 124 Cal.App.4th at p. 345.) Here, the defendant's reasonable understanding is convincingly demonstrated—not by anything Mendoza said—but by the court's own characterization of the bargain.
B. The Court Erred in Imposing a Harsher Sentence Without First Affording Mendoza An Opportunity to Withdraw His Plea
"'When a guilty plea is entered in exchange for specified benefits such as . . . an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.'" (Silva, supra, 247 Cal.App.4th at p. 587.)
"However, there is an out for the trial court. The court may withdraw its initial approval of the plea at the time of sentencing and decline to impose the agreed upon sentence, 'so long as the parties can be restored to their original positions.'" (Silva, supra, 247 Cal.App.4th at p. 587.) "'Such withdrawal is permitted, for example, where the court becomes more fully informed about the case . . . .'" (People v. Kim (2011) 193 Cal.App.4th 1355, 1361 (Kim).)
"If the court withdraws its initial approval, it must inform the defendant that he or she has the right to withdraw the plea and allow the defendant to do so; it cannot merely alter the terms of the agreement by imposing punishment significantly greater than that originally bargained for." (Silva, supra, 247 Cal.App.4th at p. 587.) "The required explanation and defendant's right to have his plea withdrawn apply both at the time of entering the plea and at sentencing." (People v. Jackson (1980) 103 Cal.App.3d 635, 638.) "As a general rule, if the result will be an increased punishment, the court must allow the defendant to withdraw the plea." (People v. Akins (2005) 128 Cal.App.4th 1376, 1385-1386.)
This rule is "based on [Penal Code] section 1192.5 . . . which provides that when a plea bargain entered into by the parties is approved by the court, the defendant 'cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.' (Italics added.) [Penal Code s]ection 1192.5 further provides that the court 'shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.' (Italics added.) Implicit in this statutory language 'is the premise that the court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea.'" (Silva, supra, 247 Cal.App.4th at p. 588.)
Here, the court imposed a sentence—seven years' custody—harsher than the negotiated plea that required some portion split into mandatory supervision. Neither at the time of the plea nor at sentencing did the court advise Mendoza that its approval of the plea agreement was not binding and if, after further consideration, it could not accept the plea, Mendoza had the right to withdraw it. Moreover, Mendoza's failure to object at sentencing does not waive this claim on appeal. (Silva, supra, 247 Cal.App.4th at p. 589.)
Paragraph 11 of the plea agreement contains a different admonishment, stating: "(Cruz Waiver) Negotiated Disposition pursuant to [Penal Code section] 1192.5: I understand that if pending sentencing I am arrested for or commit another crime, violate any condition of my release, or willfully fail to appear for my probation interview or my sentencing hearing, the sentence portion of this agreement will be cancelled. I will be sentenced unconditionally, and I will not be allowed to withdraw my guilty/no contest plea(s)."
"When an error of this type is established on appeal, relief may take any of three forms: a remand to provide the defendant the neglected opportunity to withdraw the plea; 'specific performance' of the agreement as made . . . or 'substantial specific performance,' meaning entry of a judgment that, while deviating somewhat from the parties' agreement, does not impose a 'punishment significantly greater than that bargained for . . . .'" (Kim, supra, 193 Cal.App.4th at p. 1362.)
Specific performance is not an option here. Specific performance would consist of modifying the judgment, or directing the trial court to modify it, to include some portion of the seven years in mandatory supervision. However, "ordering the entry of a specific sentence is only appropriate 'when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances.'" (Kim, supra, 193 Cal.App.4th at p. 1362, italics omitted.)
Courts have discretion to not order mandatory supervision in the interests of justice. (Pen. Code, § 1170, subd. (h)(5)(A); Cal. Rules of Court, rule 4.415(a) & (b).) Here, the trial court already exercised its discretion, determining Mendoza is unsuitable for mandatory supervision because Mendoza "has violated on essentially every term of probation he's ever been granted" and has demonstrated "consistent and incessant criminality." Mendoza served two years in state prison and subsequently was deported and reentered the United States illegally and committed the current offenses. The court found the circumstances of the instant case were particularly concerning because Mendoza was amused when caught in the midst of trying to destroy methamphetamine in his residence.
Accordingly, we reject Mendoza's request that we remand to give the court an opportunity to "sentence in accord with the agreement or expressly disapprove of the agreement . . . ." The court has already properly exercised its discretion in determining mandatory supervision is not in the interests of justice in this case. As noted ante, that decision is supported by the record. As the prosecutor aptly commented, "If he's such a devoted father and husband, why is he storing meth in an amount of a minimum of 19.2 grams . . . and trying to flush it down the toilet when the officers get there?"
Because the court did not abuse its discretion in determining Mendoza is not suitable for mandatory supervision, we need not address Mendoza's argument that the court erred in determining his immigration status and ICE hold also made him ineligible for mandatory supervision.
The appropriate remedy is to remand with directions to advise Mendoza of his rights under Penal Code section 1192.5 and to permit him to withdraw his guilty plea and enter a new plea if he so chooses. (People v. Johnson (1974) 10 Cal.3d 868, 873.)
In the event Mendoza chooses to not withdraw his plea and the judgment is reinstated, we now consider the additional challenges to the judgment Mendoza raises on appeal.
II. BY PLEADING GUILTY, MENDOZA CANNOT ASSERT THE COURT ERRED IN
IMPOSING TWO ENHANCEMENTS FOR THE SAME SINGLE PRIOR CONVICTION
Mendoza has one prior conviction for selling methamphetamine in violation of section 11379, subdivision (a). Section 11370.2, subdivision (c) provides that any person convicted of violating section 11379 by selling methamphetamine "shall receive, in addition to any other punishment authorized by law . . . a full, separate, and consecutive three-year term for each prior felony conviction."
Mendoza pleaded guilty to two counts of selling methamphetamine (§ 11379, subd. (a)) and admitted to an enhancement under section 11370.2, subdivision (c) as to each of the two counts, as written in the plea agreement. Mendoza's lawyer concurred in the plea. The court's minutes and the abstract of judgment show the court sentenced Mendoza to the upper term of four years on count 5, for selling methamphetamine, plus three years on the accompanying enhancement. The court imposed the same sentence on count 6, to run concurrently. Mendoza did not object to the second enhancement, or ask the court to strike it.
The reporter's transcript from the sentencing hearing shows the court made a different calculation of the concurrent term on count 6 and its enhancement, imposing a four-year term to run concurrently with the seven years sentenced on count 5. Because neither Mendoza nor the Attorney General mentions this discrepancy, we do not consider it further.
Mendoza asserts, and the Attorney General agrees, that only one enhancement under section 11370.2, subdivision (c) is allowed for each prior conviction, regardless of how many violations a defendant is convicted of in the current proceedings. However, citing People v. Hester (2000) 22 Cal.4th 290 (Hester), the Attorney General contends Mendoza has waived the sentencing error by entering into the plea bargain for the specified seven-year sentence. As explained post, we agree with the Attorney General's argument.
A defendant who fails to object at trial to an unauthorized sentence generally does not forfeit the ability to challenge that sentence on appeal. However, one who negotiates a plea in exchange for a specified sentence does. "The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction.[] The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (Hester, supra, 22 Cal.4th at p. 295; see also People v. Couch (1996) 48 Cal.App.4th 1053, 1057 (Couch) ["When a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain."].)
Lack of jurisdiction in a fundamental sense means "an entire absence of power to hear or determine the case, such as a lack of jurisdiction over the subject matter or parties." (In re Wright (2005) 128 Cal.App.4th 663, 673.) The court did not lack fundamental jurisdiction here, and Mendoza does not contend that it did.
Under these authorities, Mendoza's argument that his sentence is unauthorized is unavailing. Indeed, even before Hester was decided, several other courts applied the same principle to bar challenges to a broad range of sentencing errors, including errors involving the improper use of sentencing enhancements. (E.g., People v. Ellis (1987) 195 Cal.App.3d 334, 342-343, 347 [defendant estopped to attack the trial court's imposition of sentence upon a prior serious felony, even though imposing the enhancement was in excess of court's jurisdiction], disagreed with on another issue in People v. Guzman (1991) 226 Cal.App.3d 1060, 1066, fn. 4); People v. Otterstein (1987) 189 Cal.App.3d 1548, 1551-1552 [having received the benefit of his bargain, defendant waived objection to erroneous imposition of great bodily injury enhancement]; People v. Jones (1989) 210 Cal.App.3d 124, 136-137 [defendant estopped from challenging the erroneous imposition of a second five-year enhancement under Penal Code section 667, subdivision (a)].)
Mendoza contends the rationale of Hester should not apply here because the sentencing error he complains about was imposed as a concurrent sentence. He asserts he is "not attempting to renege on a punishment he agreed to in exchange for a benefit, because the plea bargain never contemplated he would serve time on the enhancement challenged."
However, "[t]he fact that a defendant has received a benefit in return for agreeing to accept a specified sentence is itself sufficient to estop that defendant from later seeking to unfairly supplement this benefit by mounting an appellate attack on the trial court's imposition of the specific sentence which the defendant agreed to accept." (Couch, supra, 48 Cal.App.4th at p. 1057.) Absent a plea bargain, Mendoza could have been sentenced to 10 years eight months in prison. Mendoza gained the benefit of a lesser sentence (seven years) under his plea bargain. Having entered into the plea agreement for a specified sentence and accepting the benefits of its terms, Mendoza is precluded from asserting the claimed sentencing error. (Hester, supra, 22 Cal.4th at p. 295.)
III. THE COURT DID NOT ERR IN IMPOSING PENALTIES
A. Background
Section 11372.5 provides that every person convicted of selling methamphetamine shall pay a "criminal laboratory analysis fee" (lab fee) of $50 for each separate offense. Under subdivision (b) of that statute, the money must be used to pay costs incurred by crime laboratories providing analyses for controlled substances in connection with criminal investigations, to purchase and maintain equipment used by those laboratories, and for continuing education and training of forensic scientists regularly employed by these laboratories.
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 provides that every person convicted of a violation of "this chapter" (which includes selling methamphetamine in violation of section 11379, subdivision (a)), shall pay a "drug program fee" not to exceed $150 for each separate offense. Under subdivision (c)(2) of that statute, at least one-third of these funds must be used for drug prevention programs in schools and the community.
Section 11372.7, subdivision (a) provides: "(a) 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."
Penal Code section 1464 and Government Code section 76000 mandate penalties or assessments upon every "fine, penalty, or forfeiture" imposed by a trial court in a criminal case. However, such penalty assessments are not assessed or added to "fees."
Penal Code section 1464, subdivision (a)(1) provides in part: "Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and except as otherwise provided in this section, 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 . . . ."
Government Code section 76000, subdivision (a)(1) provides in part: "Except as otherwise provided elsewhere in this section, in each county there shall be levied 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 . . . ."
Accordingly, if the $50 lab fee imposed under section 11372.5, and/or the drug program fee imposed under section 11372.7 is actually a "fine," or a "penalty," and not a "fee," then an additional penalty assessment must be added.
In Mendoza's case, the court added penalty assessments to the lab fee, raising that amount to $205. The court also added penalties to the drug program fee, raising that assessment to $615. Mendoza challenges both, contending each is a fee and not a fine or penalty.
Until recently, the law was settled that both the lab fee and drug program fee are fines or penalties subject to imposition of penalties and assessments. A brief summary of the case law will help place Mendoza's argument in context.
In People v. Sierra (1995) 37 Cal.App.4th 1690, 1696 (Sierra), the Fifth District concluded that the drug program fee imposed under section 11372.7 is a "fine and/or a penalty to which the penalty assessment provisions of Penal Code section 1464 and Government Code section 76000 apply." The court reached this conclusion because section 11372.7 "defines the drug program fee as an increase to the 'total fine' and later as a fine in addition to 'any other penalty.'" (Sierra, at p. 1695.) The court stated this was "[t]he only reasonable interpretation of [section 11372.7] . . . ." (Sierra, at p. 1696.)
A few years later, in People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 (Martinez), the Second District, Division Five, extended the reasoning of Sierra to conclude the lab fee imposed under section 11372.5 is also a fine and therefore subject to mandatory penalty assessments. The court held: "Under the reasoning of Sierra, we conclude . . . [section 11372.5] defines the criminal laboratory analysis fee as an increase to the total fine and therefore is subject to penalty assessments . . . ." (Martinez, at p. 1522; see also People v. Sharret (2011) 191 Cal.App.4th 859, 869 ["the Legislature intended the section 11372.5 criminal laboratory analysis fee to be punitive"].)
In People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen), the California Supreme Court did not directly address whether the lab fee was actually a fine, but instead focused on the related issue of whether a trial court has discretion to waive penalties under Penal Code section 1464. The court in Talibdeen held such penalties are mandatory. (Talibdeen, at p. 1157.)
The first hint that a court might determine the lab fee is not a fine or penalty occurred three years later, in a decision from the Second District, Division Seven in People v. Vega (2005) 130 Cal.App.4th 183 (Vega). In Vega, defendants were convicted of conspiracy to transport cocaine and to possess cocaine for sale, but they were not convicted of transporting cocaine or possessing it for sale. (Id. at p. 185.) The issue on appeal was whether the court was authorized to impose the lab fee where section 11375.2 required such a fee for transporting or possessing cocaine for sale, but made no mention of a conviction for conspiracy to commit those same offenses. (Vega, supra, at pp. 193-194.) The court held that because a conspiracy is punished in the same manner as the underlying felony, the dispositive question was whether the lab fee constituted punishment. (Ibid.) The court held the lab fee is not punishment because its purpose is not retribution or deterrence, but instead to defray the "administrative cost" of testing the purported drugs in order to secure the defendant's conviction. (Id. at p. 195.) Because the court held the lab fee was not properly imposed, it ordered the fee as well as the associated penalty assessments stricken. (Id. at p. 195.) Significantly, however, Vega addressed whether the lab fee applied to the conviction in the first instance. Vega did not decide or even consider whether penalties apply to a properly imposed lab fee under section 11372.5.
Recently, in People v. Moore (2015) 236 Cal.App.4th Supp. 10 (Moore), the Appellate Division of the Superior Court of Nevada County disagreed with Sierra, and concluded that penalty assessments cannot be imposed on the lab fee or the drug program fee. According to Moore, the Courts of Appeal in Sierra and Martinez had been on a "fool's errand" in trying to decide the issue based on the statutory text, which uses all three terms: fee, fine, and penalty. (Moore, at p. 16.) The court in Moore also criticized the statutory analysis in Sierra, stating:
"The willingness to . . . rush to impose what amount[] to secret taxes is symptomatic of the complicity of the judiciary with the Legislature's attempt to find revenue from within the pockets of convicted criminals and traffic offenders with an endless litany of 'fees,' surcharges and assessments. . . . The judiciary is expected by the citizens to have the courage to check these dubious practices when appropriate, not to willingly facilitate this subterfuge, even though such funds, if collected, might benefit the courts or some programs that serve the courts' interests." (Moore, at p. 17, fn. 8.)
Citing Penal Code section 1463, subdivision (l)'s definition of "total fine" as including both the base fine and penalty assessments, the court in Moore concluded the Sierra court erred in treating "total fine" as synonymous with "base fine" when those terms are distinct. (Moore, supra, 236 Cal.App.4th Supp. at p. 17.) The court in Moore concluded the Legislature intended the court to first determine the "base fine" applicable to the criminal offense, then levy the proper penalty on it to determine the "total fine," and only after the total fine was determined, then increase the fine with lab fee and drug program fee. (Id. at p. 18.) Moore interpreted Vega, supra, 130 Cal.App.4th 183 as disagreeing with Sierra, concluding the lab fee and drug program fee were intended to offset administrative costs and were not penal in nature. (Moore, supra, at pp. 15-16.)
The latest published case on this issue is People v. Watts (2016) 2 Cal.App.5th 223 (Watts), a decision from the First District, Division One. The Watts court agreed with the result in Moore, although it distanced itself from Moore's harsh language and disagreed with Moore's rationale. (Id. at p. 234.)
In Watts, the court first addressed whether the Supreme Court's decision in Talibdeen was controlling on this issue. Stating, "'it is axiomatic that cases are not authority for propositions not considered,'" the court in Watts noted the defendant in Talibdeen never argued the assessments were inapplicable, and the Supreme Court never mentioned whether the lab fee was a "fee" or "fine" or "penalty." (Watts, 2 Cal.App.5th at p. 231.) Stating the Supreme Court in Talibdeen "assumed, but never decided" the penalty applied to the lab fee, the court in Watts decided "Talibdeen is not authority for the proposition that penalty assessments apply to the fee." (Watts, at p. 231.)
The court in Vega reached a similar conclusion, stating Talibdeen was "not controlling" because the court there did not address the question whether the lab fee was a punishment, but simply proceeded on the assumption that it was. (Vega, supra, 130 Cal.App.4th at p. 194.)
Disagreeing with Sierra and Martinez, the court in Watts next determined the Legislature intended the lab fee "to be exactly what it called it in the first paragraph [of section 11372.5], a fee, and not a fine, penalty, or forfeiture subject to penalty assessments." (Watts, supra, 2 Cal.App.5th at p. 231.) The court found support for its conclusion in section 11372.5's legislative "evolution," noting that when originally enacted in 1980, the statute "required every person convicted of an enumerated offense to, 'as part of any fine imposed, pay an increment in the amount of fifth dollars ($50) for each separate offense.'" (Watts, at p. 234.) The court in Watts found it significant that when this portion of the statute was later amended, the Legislature eliminated the reference to the fee's being part of the "fine imposed" and renamed it from being an "increment" to a "fee." (Ibid.) The Watts court also agreed with Vega, supra, 130 Cal.App.4th 183, that the lab fee is imposed to defray administrative costs, and therefore is a fee. (Watts, at p. 235.)
Relying on Moore and Watts, Mendoza contends the court erred in imposing penalty assessments on the lab fee and drug program fee imposed in his case.
Watts, supra, 2 Cal.App.5th 223 was decided after briefing was complete in the instant appeal. We granted Mendoza's request to file a supplemental brief addressing Watts, and we allowed the Attorney General to file a response, and Mendoza to file a supplemental reply, which we have considered. For the first time in his supplemental reply, Mendoza asserts his position that the laboratory analysis fee is a fee and not a fine or penalty is supported by certain excerpts from section 11372.5's legislative history, and he has filed a separate request for judicial notice of such documents. The request for judicial notice is denied because, as discussed in the text, post, we consider the California Supreme Court's decision in Talibdeen, supra, 27 Cal.4th 1151 to be controlling, and also because points raised in a reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) --------
However, bound by Talibdeen, supra, 27 Cal.4th 1151, we reject Mendoza's assertions. In Talibdeen, the California Supreme Court addressed a closely related issue—whether the trial court has discretion to waive penalties on the lab fee under Penal Code section 1464. (Talibdeen, at p. 1153.) In deciding that issue, the Supreme Court stated, "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 . . . ." (Italics added.) (Ibid.)
Mendoza argues Talibdeen is not controlling because that case did not decide the issue directly and the Supreme Court only assumed without deciding that penalty assessments attach to the lab fee under section 11372.5. However, the Talibdeen court's language is clear: the Supreme Court stated Penal Code section 1464 and Government Code section 76000 "called for"—that is, required—imposition of penalties on the lab fee imposed under section 11372.5. (Talibdeen, supra, 27 Cal.4th at p. 1153.)
Indeed, even the Vega court formulated the holding of Talibdeen in a manner consistent with our reading of that decision. In Vega, the Court of Appeal stated "a cogent argument" can be made that the lab fee is an additional punishment, and "support for this interpretation" can be found in Talibdeen which "held" the penalty assessments applicable to every "fine" applied to the lab fee. (Vega, supra, 130 Cal.App.4th at p. 194.)
We see no reason to depart from the California Supreme Court's guidance in Talibdeen. Generally speaking, even dicta from the California Supreme Court is to be followed. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.) In our view, Talibdeen controls, and the courts in Moore and in Watts have also misinterpreted Vega, which merely addressed whether the lab fee applied to the conviction in the first instance, not whether penalty assessments were properly levied on it. (Vega, supra, 130 Cal.App.4th at p. 195.) Moreover, although we agree with the Vega court's statement that one purpose of section 11372.5 is to offset the cost of testing drugs confiscated from persons convicted of certain drug offenses, that does not mean the Legislature may not have had more than one purpose in enacting section 11372.5, and does not make an otherwise penal statute not punitive.
A fine and fee system can serve deterrence, punishment, and help mitigate the effects of crime. These goals are not mutually exclusive—any particular assessment can seek to achieve more than one of these goals. For example, assessments could be sufficiently high to punish criminal activity with the resulting revenue used to offset the negative effects of the crime, or help defray the cost of prosecution. Such multiple purposes do not evidence a legislative intent to exempt money mandated under either section 11372.5 or 11372.7 from the mandatory penalties.
As to the penalties assessed on the drug program fee (§ 11372.7), we find the reasoning in Sierra and Martinez to be persuasive and conclude that penalty assessments were also applicable to the drug program fee. A minimum of one-third of the money collected under this statute must be used for drug prevention programs in schools and the community. (§ 11372.7, subd. (c)(2).) As such, the funds are not designed to compensate the government for the cost of prosecuting any particular defendant, and therefore are not fees, but instead are additional punishment.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court to allow Mendoza an opportunity to withdraw his plea. If he does not move to do so within 30 days of the filing of the remittitur, the trial court is directed to reinstate the judgment.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.