Opinion
F073418
10-17-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLETTE CORINE NOVAK, Defendant and Appellant.
Carolyn D. Phillips, 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 Rebecca Whitfield, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1431502)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge. Carolyn D. Phillips, 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 Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Meehan, J.
-ooOoo-
On February 27, 2015, a jury convicted appellant Charlette Corine Novak of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)/count 1), possession for sale of methamphetamine (§ 11378/count 2) and evading a peace officer (Veh. Code, § 2800.2, subd. (a)/count 3). In a separate proceeding, the court found true three prior conviction enhancements (§ 11370.2).
All further statutory references are to the Health and Safety Code, unless otherwise indicated.
On appeal, Novak contends: (1) the penalty assessments on the lab fees the court imposed were unauthorized; (2) Novak's abstract of judgment does not memorialize a stayed term the court imposed; (3) Novak's abstract of judgment contains a drug program fee that was not imposed; (4) the AIDS education program fee the court imposed was unauthorized; and (5) the court abused its discretion when it refused to order the preparation of a current probation report. We find merit to contentions 1, 3, and 4 above and modify the judgment accordingly. In all other respects, we affirm.
FACTS
On April 28, 2011, after discovering that an arrestee had been texting someone on her cellphone to purchase drugs, two Stanislaus County Sheriff's Deputies initiated a text conversation with Novak and arranged to purchase drugs from her in a parking lot. However, as they drove through the parking lot, Novak drove off in a hurry. The deputies followed Novak and tried to pull her over, but instead of stopping, she accelerated and drove off. During an ensuing chase, Novak committed several Vehicle Code violations, including failing to stop at two red lights and a stop sign. She also threw a scale, a canister with two baggies containing methamphetamine, and a cellphone out of the window. Novak eventually stopped and was arrested. During a search of her car, a deputy found a baggie that contained methamphetamine. Three baggies that were tested contained a total of 39.86 grams of methamphetamine.
On August 31, 2012, the Stanislaus County District Attorney filed an information that charged Novak with resisting arrest (Pen. Code, § 148, subd. (a)(1)/count 4), in addition to the charges she was convicted of, and the enhancements the court found true.
On February 27, 2015, the jury found Novak guilty on the three counts previously noted. On March 2, 2015, the court found the enhancements true. On March 19, 2015, the probation department filed a report in this matter. Thereafter, Novak's sentencing hearing was continued several times.
On January 26, 2016, during her sentencing hearing, Novak told the court that her probation report needed to be amended. She then advised the court of numerous corrections she claimed needed to be made to the report. Afterwards the court struck two prior conviction enhancements and sentenced Novak to an aggregate prison term of six years eight months: the middle term of three years on her transportation of methamphetamine conviction; a consecutive eight-month term on her evading a police officer conviction; a three-year prior conviction enhancement; and a stayed term on her possession for sale of methamphetamine conviction. Additionally, the court imposed a laboratory fee of $50, plus $85 in penalty assessments on one of her drug convictions, and a $70 AIDS education program fee.
After the court finished sentencing Novak, the following colloquy occurred:
"[NOVAK]: Your, Honor -
"THE COURT: Yes, ma'am.
"[NOVAK]: I want—the People's statement wasn't amended either, and I wasn't done with the probation report. There's [sic] many errors in it, and also you're supposed to give me an up-to-date report, because it's been a substantive amount of months [sic] since the first report was written.
"THE COURT: Ma'am, it's the court's view that I have already given you a significant consideration by virtue of the fact that I have not sentenced you to 12 years, eight months, instead of the six years, eight months I gave you.
"[NOVAK]: I understand.
"THE COURT: I do not view any errors—none of the errors, by the way, that you pointed out in your report [were] substantial or would change anything that's involved in this case.
"[NOVAK]: Your honor, the ones in the People's ... sentencing report would.
"THE COURT: Sorry. You're remanded to the custody of the sheriff."
DISCUSSION
The Laboratory Fees and Assessments
Novak contends the court imposed a $50 laboratory fee (§ 11372.5, subd. (a)) on each of her drug convictions in counts 1 and 2 and that it imposed a total of $35 in penalty assessments on those fees. She relies on People v. Watts (2016) 2 Cal.App.5th 223 (Watts) to contend the laboratory fee is not punitive and, thus, although the court was authorized to impose this fee on a stayed count, the two $50 fees were not subject to penalty assessments. Consequently, according to Novak, the $135 in laboratory fees and assessments must be reduced to a total of $100 in laboratory fees, i.e., a $50 laboratory fee for each count. Respondent agrees, albeit for different reasons, that the $135 in fees and assessments should be lowered to a total of $100 consisting of a $50 laboratory fee for each count. We conclude that the trial court should have imposed a laboratory fee of $50 and corresponding penalty assessments on each of Novak's drug convictions in counts 1 and 2 and stayed the and assessments imposed on count 2.
Section 11372.5 imposes a "criminal laboratory analysis fee" on defendants who are convicted of enumerated drug offenses, including violations of sections 11378 and 11379. The sentencing court is to "increase the total fine necessary to include this increment." (§11372.5.) A "fine" not in excess of $50 is imposed, which is deposited into a "criminalistics laboratories fund" for every conviction of certain enumerated drug offenses. (Id. at subds. (a) & (b).)
There is a conflict of authority regarding whether the criminal laboratory analysis fee under section 11372.5 constitutes punishment. In Watts, the First Appellate District, Division One, held that the $50 assessment imposed pursuant to section 11372.5 is a fee, not a fine, penalty or forfeiture, and thus not subject to penalty assessments. (Watts, supra, 2 Cal.App.5th at pp. 229, 237.) In People v. Vega (2005) 130 Cal.App.4th 183 (Vega), the Second Appellate District, Division Seven, concluded that because this fee did not qualify as "punishment" within the meaning of Penal Code section 182, subdivision (a), the fee was improperly imposed upon the defendants in that case who were convicted of conspiracy to transport cocaine. (Vega, at pp. 185, 194-195.)
In contrast, in People v. Sharret (2011) 191 Cal.App.4th 859 (Sharret), the Second Appellate District, Division Five, concluded that this same fee constituted punishment. (Id. at p. 869.) We agree with Sharret that the fee under section 11372.5 constitutes punishment.
As Sharret analyzed and determined, the language of section 11372.5 provides that the laboratory analysis fee is punitive in nature because a sentencing court is to increase the total fine in increments as necessary for each separate offense. (Sharret, supra, 191 Cal.App.4th at pp. 869-870.) The fee may only be imposed upon a criminal conviction and it has no application in a civil context. (Id. at p. 870.) The fee is assessed in proportion to a defendant's culpability. The fee is mandatory and without an "ability to pay requirement." The fees are used for law enforcement purposes, and "earmarked for the criminalistics laboratories fund, which has no civil purpose." (Ibid.) There is no evidence section 11372.5 "was a mere budget measure" like other statutory fees. (Sharret, at p. 870.)
In Vega, the appellate court acknowledged that "[a] cogent argument can be made from the language of [ ] section 11372.5, subdivision (a) [that] the Legislature intended the $50 laboratory 'fee' to be an additional punishment for conviction of one of the enumerated felonies." (Vega, supra, 130 Cal.App.4th at p. 194.) This is because the statute refers to the "fee" as a "fine" which may be imposed in increments reflecting the number of offenses committed in addition to any other "penalty" prescribed by law. (Ibid.; § 11372.5, subd. (a).)
Vega found support for this interpretation from People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen), in which our Supreme Court held the penalty assessments applicable to " 'every fine, penalty, or forfeiture' " applied to the laboratory analysis fee in section 11372.5, subdivision (a). (Talibdeen, at pp. 1153-1154.) However, Vega found Talibdeen not controlling because the Supreme Court assumed (along with the parties in that case) that the laboratory analysis fee was a punishment and Talibdeen did not analyze that issue. (Vega, supra, 130 Cal.App.4th at p. 195.)
The Vega court found the labels of "fee" or "fine" not a dispositive indicator of an intent to be punitive, particularly when the Legislature used both terms in the same statute. (Vega, supra, 130 Cal.App.4th at p. 195.) "Fines are imposed for retribution and deterrence; fees are imposed to defray administrative costs." (Ibid.) Vega held "the main purpose of [ ] section 11372.5 is not to exact retribution against drug dealers or to deter drug dealing ... but rather to offset the administrative cost of testing the purported drugs the defendant transported or possessed for sale in order to secure his conviction." (Ibid.) "The legislative description of the charge as a 'laboratory analysis fee' strongly supports our conclusion, as does the fact the charge is a flat amount, it does not slide up or down depending on the seriousness of the crime, and the proceeds from the fee must be deposited into a special 'criminalistics laboratories fund' maintained in each county by the county treasurer." (Ibid.)
The first paragraph of section 11372.5, subdivision (a) characterizes the $50 assessment it authorizes as a "fee." Watts found this characterization controlling. In doing so, the court interpreted the second paragraph of this subdivision as "establish[ing] that in the case of an offense 'for which a fine is not authorized by other provisions of law,' the crime-lab fee acts as a fine and is, in turn, subject to penalty assessments." (Watts, supra, 2 Cal.App.5th at p. 235.) However, it also found that the most reasonable interpretation of the phrase "not authorized by other provisions of law" was that it referred to offenses for which no separate fine was permitted to be imposed. (Ibid.) The Watts court further found that the second paragraph of section 11372.5, subdivision (a) did not apply to a conviction for violating section 11378 because although that statute did not provide for a base fine, the offense was subject to a fine pursuant to Penal Code section 672. (Watts, at pp. 235-236.) Therefore, it found controlling the first paragraph's characterization of the crime lab fee as a fee that was not subject to penalty assessments. (Id. at p. 237.)
We find Sharret more persuasive than Vega and Watts and adopt its conclusion that the fee in section 11372.5 is punitive. Although this section refers to the imposition of a "fee," the section reflects the imposition of both a fine and a penalty, especially when considered with other statutes. (§§ 11372.5, subd. (a), 11502, subd. (a); Pen. Code, §§ 1205, 1464.8.) Other courts have found this fee mandatory and a fine. (See People v. Taylor (2004) 118 Cal.App.4th 454, 456 [this fee is mandatory]; People v. Turner (2002) 96 Cal.App.4th 1409, 1413 [this fee is mandatory and subject to mandatory penalty assessments]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [the laboratory fee is a fine]; People v. Clark (1992) 7 Cal.App.4th 1041, 1050 [this fee is mandatory].) Accordingly, we deem the fee under section 11372.5 to be a "punishment." (Sharret, supra, 191 Cal.App.4th at p. 870.)
Here, since the court stayed the term it imposed on count 2, it appears that the $135 lab fee and assessments, a $50 laboratory fee and $85 in penalty assessments, which were unstayed, were imposed on count 1. However, for the reasons discussed above, we conclude that the trial court should also have imposed a $50 laboratory fee and $85 in penalty assessments, for a total of $135 in fines and assessments on count 2 and stayed these amounts because the court stayed the punishment on that count. (Sharret, supra, 191 Cal.App.4th at p. 870.)
The Alleged Failure to List the Stayed Term in the Abstract of Judgment
Novak contends that although the court imposed a stayed, three-year term on count 2, her abstract of judgment erroneously does not memorialize this stayed term. Respondent agrees that the court imposed a three-year term on count 2 which should have been listed on the abstract of judgment as stayed. We agree that the court should have memorialized the sentence it imposed on count 2 in Novak's abstract of judgment. (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) However, the record does not support the parties' contention that the court imposed a stayed, three-year term on count 2.
The minute order for Novak's sentencing hearing indicates the court imposed a three-year term on count 2. This, however, conflicts with the reporter's transcript, which indicates that in sentencing Novak on count 2 the court only stated, "As to count [2], imposition of sentence is stayed[.]" "When there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls." (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) Thus, the record does not support the parties' assertion that the court imposed a stayed, three-year term on count 2.
"[W]hen a court determines that a conviction falls within the meaning of [Penal Code] section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence[.]" (People v. Duff (2010) 50 Cal.4th 787, 796.) Thus, the court imposed an unauthorized sentence when it purported to stay imposition of sentence on count 2.
However, for the following reasons, we do not deem it necessary to remand for resentencing. The middle term for possession for sale of methamphetamine is two years. (§ 11378; Pen. Code, § 1170, subd. (h)(1).) It is clear from the record that the court stayed imposition of sentence on count 2 pursuant to Penal Code section 654 because Novak's conviction on both counts were based on her possession and transportation of the same methamphetamine. In imposing the middle term of three years on count 1, the court found "the circumstances for aggravation [did] not substantially outweigh the circumstances in mitigation[.]" Since counts 1 and 2 were based on the same conduct, we conclude the court would also have imposed a stayed, middle term on count 2 if it had realized it was required to impose sentence on that count. Therefore, we will direct the trial court to issue an abstract of judgment that indicates the court imposed a stayed, two-year term on count 2.
The Drug Program Fee
Although the court did not impose a drug program fee when it sentenced Novak, her abstract of judgment indicates that the court imposed such a fee in the amount of $150. Novak contends the $150 drug program fee must be stricken from her abstract of judgment. Respondent concedes and we agree.
Although mandatory, the drug program fee is subject to an ability to pay. (§ 11372.7, subds. (a) & (b).) Since the court is not required to state such a finding on the record, we presume from the court's failure to impose a drug program fee that the court found Novak did not have the ability to pay this fee. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413, fn. 2.) Moreover, since the court did not impose a drug program fee, it was error for the abstract of judgment to indicate that it did.
The AIDS Education Program Fee
During sentencing, the court ordered Novak to pay a $70 AIDS education program fee. This fee is listed in the minute order of Novak's sentencing hearing but not in her abstract of judgment. Novak contends that the imposition of this fee was unauthorized and must be stricken from the minute order. Respondent concedes. The record does not disclose the statutory basis for the court's order imposing the AIDS education program fee. However, Business and Professions Code section 4338 authorizes the court to impose a fine not to exceed $70 against any person who violates Business and Professions Code sections 4140 or 4142 with $50 of the fine going towards AIDs education pursuant to section 1463.23. (Pen. Code, § 1463.23.) Section 11377, subdivision (b) also authorizes the court to assess a fine of up to $70 against anyone convicted of violating subdivision (a) of that section with $50 of the fine going to AIDS education pursuant to Penal Code section 1463.23. Novak was not convicted of violating section 11377 or any of the sections listed in Business and Professions Code section 4338. Therefore, the court's order requiring Novak to pay a $70 AIDS education program fee was unauthorized and we will strike it and direct the trial court to correct the minute order of Novak's sentencing hearing.
Business and Professions Code section 4142 prohibits the retail sale without a prescription of hypodermic needles or syringes. Business and Professions Code section 4140 was repealed effective January 1, 2012. (Stats. 2011, ch. 738, § 2.)
The Failure to Order an Updated Probation Report
Novak contends the court abused its discretion by its failure to order an updated or supplemental probation report or to allow her to orally update the probation report that had been prepared in this matter 10 months prior to her being sentenced. We disagree.
Ordinarily, "[t]he court must order a supplemental probation officer's report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared." (Cal. Rules of Court, rule 4.411(c).)
However, two of the three prior conviction enhancements the court found true were based on Novak's 2003 and 2004 convictions for possession for sale of a controlled substance in violation of section 11378. A defendant convicted of certain specified offenses, including a violation of section 11378 involving methamphetamine, who has one or more prior convictions for certain specified offenses, is ineligible for probation. (Pen. Code, § 1203.07, subd. (a)(11).) Thus, Novak's current conviction for violating section 11378 and her two prior convictions for violating that section made her ineligible for a grant of probation. Moreover, the court is not required to order an updated or supplemental probation report when the defendant is not eligible for probation. (People v. Llamas (1998) 67 Cal.App.4th 35, 39.) Consequently, the court did not abuse its discretion by its failure to do so here.
Penal Code section 1203.07, subdivision (a), in pertinent part, provides: "(a) Notwithstanding [Penal Code] [s]ection 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons: [¶] ... [¶] (11) Any person convicted of violating Section ... 11378 ... by possessing for sale cocaine base, cocaine, or methamphetamine, or convicted of violating Section ... 11379 ..., by selling or offering to sell cocaine base, cocaine, or methamphetamine and who has one or more convictions for violating Section ... 11378, ... [or] 11379, ...." (Italics added.) --------
In any event, where a defendant fails to request a probation report, voices no objection to proceeding with sentencing without a supplemental probation report, and states there is no legal cause why judgment cannot be imposed, as occurred here, the issue of requiring a supplemental probation report is forfeited. (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1555-1556.) Novak did not object to the court's failure to order the preparation of a supplemental report until after the court finished sentencing her. Thus, even if Novak were eligible for probation, she forfeited this issue by her failure to proffer a timely objection to the court sentencing her without an updated or supplemental probation report.
DISPOSITION
The judgment is modified to strike the $70 AIDS education program fee the court imposed and to add a stayed laboratory fee of $50 and $85 in penalty assessments (for a stayed total of $135) to Novak's conviction in count 2. The trial court is directed to issue an amended minute order for Novak's January 26, 2016, sentencing hearing that does not indicate that the court imposed a $70 AIDS education program fee. The court is also directed to issue an amended abstract of judgment that indicates it imposed a stayed middle term of two years on count 2, a $50 laboratory fee and $85 in penalty assessments on count 1, and a $50 laboratory fee and $85 in penalty assessments, both amounts stayed, on count 2. The amended abstract of judgment should not indicate that the court imposed a drug program fee. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the appropriate authorities. As modified, the judgment is affirmed.