Opinion
F072964
10-11-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY BRENT SHACKELFORD, Defendant and Appellant.
Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14907197)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Peña, J.
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A jury convicted appellant Jeffrey Brent Shackelford of transportation for sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)/count 1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a lesser included offense of the possession for sale offense charged in count 2, possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)/count 3), and carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1)/count 4). On December 1, 2015, the court sentenced Shackelford to a prison term of three years consisting of the middle term of three years on count 1, time served on count 2, and concurrent two-year terms on each of his convictions in counts 3 and 4.
All further statutory references are to the Penal Code unless otherwise noted.
On July 29, 2016, Shackelford's appellate counsel filed a brief requesting that we review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Shackelford did not respond to this court's invitation to submit additional briefing.
On May 18, 2017, we issued a letter informing the parties that they could file a brief addressing certain issues. On June 1, 2017, Shackelford's appellate counsel filed a letter brief.
On November 3, 2017, this court issued an unpublished opinion in this matter.
On December 5, 2017, Shackelford filed a petition for review in the California Supreme Court.
On January 11, 2018, the Supreme Court granted Shackelford's petition for review.
On July 26, 2018, the Supreme Court transferred the matter back to this court with directions to vacate our opinion and reconsider the cause in light of the court's opinion in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz).
Pursuant to the Supreme Court's remand order, the unpublished opinion in this matter that was filed on November 3, 2017, is vacated and the instant opinion is substituted in its stead. Further, having reconsidered the cause in light of the Supreme Court's decision in Ruiz, we conclude that the court imposed an unauthorized sentence by its failure to: (1) stay one of the terms it imposed on Shackelford's convictions in counts 3 and 4; (2) impose corresponding assessments on the laboratory fees on his convictions in counts 1 and 2; and (3) stay one of these fees and corresponding assessments. We also modify the judgment accordingly and affirm as modified.
FACTUAL AND PROCEDURAL HISTORY
On July 5, 2014, at approximately 11:32 p.m., Fresno Police Officer Miguel Archan was on patrol when he noticed a large truck without a front license plate, which was a violation of Vehicle Code section 5200. The truck was being driven by Shackelford with an elderly man in his 70's in the front passenger's seat. Archan stopped the vehicle and informed Shackelford of the reason for the stop. Archan conducted a license and warrant check and discovered that Shackelford had an outstanding warrant. The officer had Shackelford step out of the truck, handcuffed him, and placed him in the back of his patrol car. The passenger was then asked to step out while Archan conducted an inventory check because the truck was going to be impounded. When Archan opened the center console, he noticed a large baggie containing a crystal substance that was later determined to be methamphetamine with a net weight of 27.86 grams. He continued to search and found a baggie that contained a scale with white residue and 32 pills that were later determined to be Vicodin. The officer also located marijuana in the center console.
Archan then searched the back part of the truck. Behind the driver's seat he found a .22-caliber Ruger handgun in a green bag. The green bag and another bag in the backseat area were full of watches, gold chains, copper jewelry, and cellphones. During a search of Shackelford, Archan found $600 in his wallet. The officer arrested Shackelford and let the passenger go.
On January 28, 2015, the Fresno County District Attorney filed an information in this matter.
On October 27, 2015, the jury rendered its verdict.
On December 1, 2015, the court sentenced Shackelford to a three-year prison term as previously noted. Although the court imposed a laboratory fee in counts 1 and 2, it did not impose any corresponding assessments on these fees.
The Concurrent Terms Imposed on Counts 3 and 4
Shackelford contends the court should have stayed one of the terms imposed on counts 3 or 4 and we agree.
Section 654, subdivision (a), in pertinent part, provides:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
" 'It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.' [Citation.] Instead, the accepted 'procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' " (People v. Jones (2012) 54 Cal.4th 350, 353 (Jones).)
In Jones, the court held that section 654 prohibits multiple punishment for a single physical act that violates different provisions of law. (Jones, supra, 54 Cal.4th at p. 358.) Shackelford's convictions in count 3 for being a felon in possession of firearm and in count 4 for possession of a concealed weapon were based on his singular possession of the handgun found in his truck. Thus, the court violated section 654 when it imposed concurrent terms on his convictions in each of those counts and we will stay the term imposed on count 4.
The Laboratory Fees and Assessments
Shackelford relies on People v. Watts (2016) 2 Cal.App.5th 223 (Watts) to contend that because a laboratory fee imposed pursuant to Health and Safety Code section 11372.5 does not constitute punishment, the court should not have imposed any penalty assessments on either laboratory fee it imposed on his convictions in counts 1 and 2. We conclude the laboratory fee and the assessments constitute punishment, that the court should have imposed the assessments on each of the laboratory fees it imposed, and that it should have stayed the laboratory fee and assessments imposed on one of those counts.
Health and Safety Code section 11372.5, subdivision (a) imposes a "criminal laboratory analysis fee" on defendants who are convicted of enumerated drug offenses, including violations of Health and Safety Code sections 11377 and 11379. The sentencing court is to "increase the total fine necessary to include this increment." (Ibid.) 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).) 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., § 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).)
In People v. Sierra (1995) 37 Cal.App.4th 1690, 1696 (Sierra), we concluded that the program fee (Health & Saf. Code, § 11372.7) is a fine or penalty to which penalty assessments are applicable. In People v. Martinez (1998) 65 Cal.App.4th 1511 (Martinez), the court applied our reasoning to the lab fee specified in Health and Safety Code section 11372.5: "Under the reasoning of Sierra[, supra, 37 Cal.App.4th 1690], we conclude Health and Safety Code section 11372.5, defines the [lab] fee as an increase to the total fine and therefore is subject to penalty assessments under section 1464 and Government Code section 76000." (Martinez, supra, 65 Cal.App.4th at p. 1522.) Some courts, however, have held to the contrary. Watts, which itself noted that its holding was "contrary to the weight of authority," held that the lab fee "is not subject to penalty assessments." (Watts, supra, 2 Cal.App.5th at p. 226; see People v. Vega (2005) 130 Cal.App.4th 183, 193-195 [lab fee is not punishment for purposes of § 182, subd. (a)] (Vega).)
Recently, in Ruiz, supra, 4 Cal.5th 1100, the Supreme Court held that the laboratory fee and drug program fee (Health & Saf. Code, § 11372.7) were punishment for purposes of the conspiracy statute (§ 182). (Ruiz, at p. 203.) Although the court declined to decide whether these fees were subject to penalty assessments (id. at p. 205), it nevertheless disapproved of Watts and Vega to the extent they were inconsistent with the court's holding. (Id. at p. 205, fn. 8.) Thus, in accord with Martinez, we conclude that the laboratory fee is a fine or penalty that it is subject to penalty assessments. Further, since Shackelford was convicted in counts 1 and 2 of drug offenses enumerated in Health and Safety Code section 11372.5, the court should have imposed the corresponding penalty assessments on the laboratory fee it imposed pursuant to that section in each count.
However, section 654 prohibited the imposition of additional punishment on count 2 because Shackelford's convictions for transportation of methamphetamine in count 1 and possession of methamphetamine in count 2 were both based on his singular possession of 27.86 grams of methamphetamine. (Jones, supra, 54 Cal.4th at p. 358.) Therefore, to comply with section 654's prohibition against multiple punishment, the court should have imposed a laboratory fee and corresponding assessments on each count and stayed the fee and assessments it imposed on count 2. By failing to do so, the court imposed an unauthorized sentence that we will direct it to correct.
The court should also have stayed the time it imposed on count 2, but this issue is moot because the court sentenced Shackelford to time served on that count. --------
Further, following an independent review of the record, we find that with the exception of the issues discussed above, no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is modified to stay the concurrent two-year term the court imposed on Shackelford's conviction in count 4 for possession of a concealed handgun. The judgment is also modified to impose mandatory penalty assessments on the laboratory fees imposed on counts 1 and 2, and to stay the fee and assessments imposed in count 2. The trial court is directed to file an amended abstract of judgment that incorporates these modifications and to forward certified copies to the appropriate authorities. As modified, the judgment is affirmed.