Opinion
F076529
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE ROLANDO OCHOA, Defendant and Appellant.
Cynthia L. Barnes, 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, Catherine Chatman and Harry Joseph Colombo, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF352805)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Nathan G. Leedy, Judge. Cynthia L. Barnes, 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, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Smith, Acting P.J., Snauffer, J. and DeSantos, J.
-ooOoo-
Defendant Jose Rolando Ochoa 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. 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 August 8, 2017, defendant pled no contest to possession of methamphetamine for the purpose of sale (§ 11378; count 1) and driving under the influence of a drug (Veh. Code, § 23152, subd. (f); count 4), and admitted having served five prior prison terms (Pen. Code, § 667.5, subd. (b)), in return for the low term of 16 months, plus five years for the prison term enhancements. The remaining counts and allegations were dismissed.
On August 29, 2017, the trial court sentenced defendant to the agreed-upon six years four months, awarded credits, and imposed various fines and fees, including a $50 lab fee pursuant to section 11372.5 and a $100 drug program fee pursuant to section 11372.7, plus penalty assessments, as itemized in the probation officer's report recommendation No. 10.
On October 30, 2017, defendant filed a notice of appeal. The trial court denied his request for a certificate of probable cause.
The notice of appeal sent by the prison was received by the trial court on October 27, 2017. A prisoner's notice of appeal is deemed timely filed if delivered to prison authorities within the 60-day filing period. (In re Jordan (1992) 4 Cal.4th 116, 118-119.) --------
On April 10, 2018, 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.
On April 30, 2018, in response, the trial court modified the fees imposed by changing the abstract of judgment's "$585 criminal laboratory analysis fee" to "$150, Criminal Laboratory Analysis Fee," thereby eliminating the penalty assessments attached to both fees. This supplemental record was filed with this court on June 6, 2018, the day before defendant filed his reply brief.
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. During briefing in this case, 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. The assessments attached to the lab fee and drug program fee in this case were properly imposed. Thus, we will instruct the trial court to reimpose the penalty assessments on the fees.
DISPOSITION
The matter is remanded to the trial court with directions to reimpose the penalty assessments attached to the lab fee and the drug program fee imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7, respectively. In all other respects, the judgment is affirmed.