Opinion
C086352
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. LEONARD WAYNE STIDMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE007251)
A jury convicted defendant Leonard Wayne Stidman on one count of possession for sale of heroin (Health & Saf. Code, § 11351), and one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378). The trial court suspended imposition of judgment and granted defendant formal probation for five years including up to one year in Sacramento County jail. Included among the terms of probation was a requirement that defendant allow law enforcement or probation officers to search his electronic storage devices without a warrant. The trial court also imposed various fines and fees.
On appeal, defendant contends (1) the trial court erred in omitting an element of the lesser included offenses of simple possession of methamphetamine, (2) the electronics search condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad in violation of the Fourth Amendment, (3) the prosecutor committed error during closing arguments by misstating the burden of proof and pressuring jurors to reject defendant's testimony, (4) he received ineffective assistance of counsel because his trial attorney did not make a timely objection to the admission of his out-of-court statements, and (5) the penalty assessments on the criminal laboratory analysis fee and drug program fee, as well as a urinalysis fee, must be stricken as not actually imposed by the trial court.
We conclude the trial court's jury instructions, taken as a whole, fully instructed the jury on the elements of simple possession of methamphetamine. We conclude defendant has forfeited his challenge under Lent, supra, 15 Cal.3d 481 and as-applied constitutional challenge because he did not object to the electronics search condition at sentencing. As for his facial constitutional challenge to the electronics search condition, we conclude the condition is not facially overbroad. We determine that the prosecutor's closing argument did not erroneously shift the burden of proof or pressure jurors to reject defendant's testimony. Even if defendant's attorney would have been able to exclude defendant's out-of-court statements, the exclusion of this evidence would not have affected the outcome. As to fines and fees, the trial court erroneously omitted the mandatory criminal laboratory analysis fee and the penalty assessments. However, on this silent record, we presume the trial court exercised its statutory discretion not to impose the urinalysis fee.
We affirm defendant's convictions. We shall remand with instructions that the trial court impose the criminal laboratory analysis fee and penalty assessments.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
Around 9:30 p.m. on April 19, 2017, Fulton El Camino Park District Police Department Officer Taylor Magaziner saw a brown pickup truck parked at the intersection of Burney Way and Moretti Way in Sacramento. Officer Magaziner ran a registration check and found out the vehicle's registration had expired in 2015. The officer activated his patrol vehicle's overhead emergency lights and approached the truck. Inside the truck, Officer Magaziner saw a single individual - later identified as defendant - with his head down "as if he was doing something in his lap."
When defendant saw Officer Magaziner, he put his vehicle in reverse and attempted to drive away. However, the patrol vehicle was positioned behind the truck, and defendant took the truck out of reverse. Defendant then "made a diving motion" to the right and out of the officer's sight. Defendant next attempted to exit the truck. The officer commanded defendant to stay in the truck. At Officer Magaziner's request, defendant provided his personal identification. Officer Magaziner explained that the stop was based on the expired registration. Defendant explained he was in the area to walk his dog. Defendant stated he had nothing illegal in the truck and there was no need to conduct a search.
Officer Magaziner detained defendant in his patrol vehicle and gave defendant a Miranda advisement. Defendant said he understood his rights. Defendant asked the officer to give him "a break."
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Inside the pickup truck, Officer Magaziner found a banker's bag underneath the passenger seat at the location toward which defendant had moved when he first saw the officer. The banker's bag contained a clear plastic bag holding a crystalline substance and an orange sheet of plastic holding a black tar-like substance. A field test of the tar-like substance yielded a presumptive positive for heroin. The tar-like substance weighed 4.19 grams. The crystalline substance was also field tested and yielded a presumptive positive for methamphetamine. The substance weighed approximately 22 grams.
Officer Magaziner also found the following additional items inside the pickup truck: a digital scale that had methamphetamine on it, a methamphetamine pipe, and approximately 100 small plastic bags. One of the small plastic bags contained 0.2 grams of methamphetamine.
Officer Magaziner went to defendant and said, "[W]e need to talk." The officer stated he knew defendant was selling drugs and wanted to know if defendant was selling drugs in the area where the truck was parked. Defendant hung his head and said, "Yeah" he was selling drugs. Defendant stated he was selling drugs to provide food but not selling in the area. He acknowledged he had already sold drugs to people. At the time he was contacted by Officer Magaziner, defendant was cutting up the methamphetamine to get it ready for sale. Defendant said he does not use heroin. He also stated he got the methamphetamine and heroin from the same person.
Defendant attempted to change his story to claim that he had the drugs only for his personal use. The officer pointed out a trail of methamphetamine inside the truck and talked about honesty. Defendant re-acknowledged that he was packaging the drugs for sale.
After giving his qualifications as an expert on narcotics sales, Officer Magaziner testified that a typical street level dose of methamphetamine is approximately 0.1 gram to produce a user high. The same amount of heroin also produces a user high. Thus, defendant was caught with amounts of methamphetamine sufficient for 220 user highs and with enough heroin for 42 user highs. Officer Magaziner rejected the suggestion that the amounts of methamphetamine and heroin were for defendant's personal use. In the officer's experience, users who purchase more than single-use amounts of methamphetamine or heroin typically buy a total of $30 to $50 of the drugs for a quantity discount, but not in the amounts possessed by defendant. In response to a hypothetical question based on the facts of this case, the officer expressed his opinion that the amounts of methamphetamine and heroin in this case were possessed for purposes of sale.
Defense Evidence
Defendant testified on his own behalf as follows: He was parked Moretti Way and Burney Way on April 19, 2017. Defendant was there to take his dog for a walk and saw Officer Magaziner as he was about to get out of the truck. Defendant denied owning the truck. The truck's owner is Peter Kennedy, who defendant knows "through some jobs that [he's] done." Defendant borrowed the truck because his sedan was unable to pull a trailer needed to complete defendant's errands.
Defendant did not look under the seat of the truck and did not notice any white powder on the floor of the passenger compartment. Officer Magaziner accused defendant of selling drugs and had already made up his mind about defendant. Defendant testified, ". . . I didn't really say much. I said a few things, I told him to give me a break, you know. That's about it at the time." Defendant denied telling the officer that he sold or dealt drugs.
DISCUSSION
I
Jury Instruction
Defendant contends the trial court misinstructed the jury by giving a single, erroneous instruction on the lesser included offenses of simple possession of methamphetamine and simple possession of heroin. Specifically, he argues the trial court failed to state all the elements of simple possession of methamphetamine. Viewing the jury instructions as a whole, we reject the argument.
A.
Jury Instructions Given
The trial court instructed the jury with CALCRIM No. 2302 on the two charged offenses: possession of methamphetamine for sale and possession of heroin for sale. The trial court also instructed the jury with CALCRIM No. 2304 on the lesser included offenses of the charged offenses. Thus, the trial court used a single jury instruction to instruct the jury on two separate lesser included offenses. In pertinent part, the trial court instructed on the lesser included offenses as follows:
"The defendant is charged in Count 1 with possessing Heroin for sale, a controlled substance in violation of Health and Safety [C]ode [section] 11351. Simple possession of Heroin is a lesser crime to this offense.
"The defendant is charged in Count 2 with possessing Methamphetamine for sale, a controlled substance in violation of [Health and Safety Code section] 11378. Simple Possession of Methamphetamine is a lesser crime to this offense.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant possessed heroin, a controlled substance;
"2. The defendant knew of its presence;
"3. The defendant knew of the substance's nature or character as a controlled substance;
"AND
"[4.] The controlled substance was in a usable amount." (Italics added.)
The written jury instructions did not mention possession of methamphetamine was necessary for a conviction of the lesser included offense of simple possession of methamphetamine. However, the trial court's oral instruction to the jury, stated:
"To prove that the defendant is guilty of this crime, the People must prove that:
"One, the defendant possessed a controlled substance; and
"Two, the defendant knew of its presence;
"Three, the defendant knew of the substance's nature or character as a controlled substance; and
"[Four], this substance was in a usable amount.
"(Finished reading.)
"With regard to the first element that the defendant possessed a controlled substance, that substance needs to be heroin for Count One and methamphetamine for Count Two, the lesser offenses." (Italics added.)
B.
Review of Claims of Instructional Error
"[U]nder the due process guarantees of both the California and United States Constitutions, the prosecution has the burden of proving beyond a reasonable doubt each essential element of the crime . . . ." (People v. Flood (1998) 18 Cal.4th 470, 481.) However, proof that a defendant has committed one offense does not also prove he or she committed another. (People v. James (2000) 81 Cal.App.4th 1343, 1353.) As the United States Supreme Court has noted, "trial by jury has been understood to require that 'the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours . . . .' " (Apprendi v. New Jersey (2000) 530 U.S. 466, 477 , quoting 4 Blackstone's Commentaries 343.)
We review a claim of error in instructing the jury under the independent standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) And we presume the jury is "able to understand and correlate instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
C.
The Trial Court Properly Instructed on Simple Possession of
Heroin and Methamphetamine
We reject the argument in defendant's opening brief that the trial court's written jury instruction failed to state the requirement that a conviction of possession of methamphetamine required defendant to possess methamphetamine. The trial court's oral instruction to the jury supplied this element of the charged offense. The trial court expressly stated the evidence in "regard to the first element that the defendant possessed a controlled substance" had to show "that substance needs to be . . . methamphetamine" for the lesser included offense of simple possession of methamphetamine.
We reject defendant's argument, raised for the first time in the reply brief, that the oral instruction to the jury did not cure the deficiency in the written jury instruction. The California Supreme Court has "established that neither the state nor the federal Constitution guarantees a criminal defendant the delivery of written instructions in addition to oral ones. (People v. Seaton (2001) 26 Cal.4th 598, 674; People v. Ochoa (2001) 26 Cal.4th 398, 447; People v. Samayoa (1997) 15 Cal.4th 795, 845 ['the provision of written instructions to the jury (although generally beneficial and to be encouraged) is not guaranteed by, and therefore does not implicate, any provision of the state or federal Constitution'].) The failure to provide written instructions is not tantamount to giving no instructions at all." (People v. Trinh (2014) 59 Cal.4th 216, 234 (Trinh).)
In Trinh, the trial court gave oral - but not written - instructions admonishing the jury not to draw inferences from defendant's election not to testify. (Trinh, supra, 59 Cal.4th at pp. 233-234.) The California Supreme Court held that the failure to deliver the same instructions in written form did not constitute error. (Id. at p. 235.) In the absence of any indication the jury was confused by the difference between the written and oral instructions, or that the jury failed to understand the instructions as a whole, the Trinh court determined there was no instructional error. (Ibid..) The same reasoning applies here: the oral instruction by the trial court instructed the jury on a point omitted in the written instructions. We reject defendant's contention - raised for the first in the reply brief - that the written instruction controlled so that the oral instruction was a mere nullity. The oral instruction to the jury supplied all of the elements of the offense of simple possession of methamphetamine. As the Trinh court noted, we presume the jury heard the oral instructions and followed them. (Ibid.)
We also reject defendant's attempt to claim there was a discrepancy between the written and oral instructions so that the written instruction prevailed. Here, there was no conflict between the written and oral instructions on simple possession of methamphetamine. In other words, there was no part of one instruction that contradicted the statement of the other instruction on simple possession of methamphetamine. The oral instruction was perfectly congruent with the written instruction and it supplied that additional required element for count two: simple possession of methamphetamine. Considered as a whole, the written and oral instructions complemented each other to provide all of the elements of the lesser included offense of simple possession of methamphetamine. There was no error.
II
Electronics Search Condition
Defendant contends the electronics search condition imposed by the trial court is invalid under Lent, supra, 15 Cal.3d 481 and also unconstitutionally overbroad. Defendant concedes he did not object to this condition at sentencing, but asks this court to address his facial challenge that the condition is unconstitutionally overbroad. We conclude defendant had forfeited his challenge under Lent and as-applied constitutional challenge. As to his facial challenge to the electronics search condition, we reject his challenge.
A.
Condition of Probation
The trial court granted defendant formal probation for five years, subject to terms that included an electronics search condition. In relevant part, the electronics search condition states:
"Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent.
"Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices.
"Defendant shall provide acces[s] to any electronic storage devices and data contained therein, including disclosing and providing any and all necessary to conduct a search."
Defendant did not object to the imposition of the electronics search condition.
B.
Analysis
Challenges to probation conditions ordinarily must be raised in the trial court; if they are not, appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Because the defendant did not object to the electronics search condition in the trial court, he has forfeited his ability to challenge both the probation condition's reasonableness and any claim concerning its constitutionality as applied to him. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) However, a defendant who did not object to a probation condition at sentencing may raise a challenge to that condition on appeal if that claim "amount[s] to a 'facial challenge,' " i.e., a challenge that the "phrasing or language . . . is unconstitutionally vague and overbroad," (id. at p. 885) that is, a " ' "pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Id. at p. 889.) Such a claim "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts . . . ." (Id. at p. 885.) Here, defendant raises a facial challenge to the condition and accordingly, this claim is not forfeited.
"A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) "Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights." (People v. Mason (1971) 5 Cal.3d 759, 768, disapproved of on unrelated grounds by Lent, supra, 15 Cal.3d at p. 486, fn. 1, italics omitted.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights . . . ." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We independently review defendant's constitutional challenge to the electronics search condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
In a facial overbreadth challenge to an electronics search condition, the issue is whether the search condition, in the abstract, and not as applied to the particular probationer, is insufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (Sheena K., supra, 40 Cal.4th at p. 885.) The answer here is "no." While the Supreme Court has not directly reached this issue, its recent decision in In re Ricardo P. provides some insight. There, our high court noted, "Our holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the . . . court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (In re Ricardo P. (2019) 7 Cal.5th 1113, 1128-1129 (Ricardo P.).) In reaching this conclusion, Ricardo P. relied on In re Malik J. (2015) 240 Cal.App.4th 896 and People v. Ebertowski (2014) 228 Cal.App.4th 1170, cases in which similar search conditions were upheld. (Ricardo P., at p. 1129.) In In re Malik J., the court concluded an electronics search condition was reasonable in light of the defendant's criminal history. (In re Malik J., at p. 902.) Similarly, in People v. Ebertowski, the court held an electronics search condition was valid under the circumstances of the case. (Ebertowski, at pp. 1173, 1176-1177; see also People v. Patton (2019) 41 Cal.App.5th 934, 945, 946 [reasoning that because electronics search conditions may be constitutionally imposed under some circumstances, they are not facially invalid].) Accordingly, we cannot conclude the electronics search condition imposed in this case is facially overbroad in all possible cases.
Defendant relies on the United States Supreme Court's decision in Riley v. California (2014) 573 U.S. 373 to contend the electronics search condition is unconstitutionally overbroad on its face. In Riley, the Supreme Court held that a warrant is generally required prior to the search of a cell phone incident to arrest. (Id. at p. 403.) However, the Riley case did not address any issues regarding probation search conditions. The privacy expectation of an arrestee is significantly different than that of a probationer. (See United States v. Knights (2001) 534 U.S. 112, 119 ["Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled" ' "].) Defendant also relies extensively on People v. Appleton (2016) 245 Cal.App.4th 717, to support his argument that this condition is facially overbroad. Appleton, however, did not involve a facial challenge to an electronics device search condition. (Id. at pp. 721, 727.) Accordingly, both of these authorities are distinguishable.
We conclude that although application of this search condition could be constitutionally overbroad as applied to certain probationers, in other circumstances it may be entirely appropriate and constitutional. The criminal offense or defendant's personal history may provide a sufficient basis on which to conclude the condition is a proportional means of deterring future criminality. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) In those cases, the imposition of such probation conditions would be constitutional. Because there could be circumstances in which such a condition was appropriate, we reject defendant's claim that the electronics search condition is facially overbroad.
III
Prosecutorial Error
Defendant argues that the prosecutor engaged in reversible error during closing argument by arguing four times to the jury that to accept defendant's version of events was to "take the easy way out." He argues these statements shifted the burden to the defense. We are not persuaded.
Although defendant describes the substance of his claim as prosecutorial misconduct, his argument is better described as alleging prosecutorial error. In People v. Centeno (2014) 60 Cal.4th 659, the California Supreme Court noted: " '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (Id. at pp. 666-667, quoting People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
A.
Closing Argument
In discussing the reasonable doubt standard, the prosecutor told the jury: "[Y]ou have to consider all the evidence. Not just the fact that the defendant came up and what he stated today in court; all of it. [¶] The defense did not mention once about the defendant's content of the statements that night and explained why he was saying all that. When I cross-examined the defendant, every time I was asking, did you say that that night or at least a couple of times, he started with, The officer wouldn't let me talk. And, I pointed out to him, No, you actually said a lot that night. You gave a lot of detail."
The portion of the prosecutor's closing remarks to which defendant assigns misconduct occurred shortly thereafter, when the prosecutor argued:
"As we talked about since voir dire, you are part of the process, too. Don't take the easy way out. The easy way out is what the defendant is doing in saying it wasn't mine that night, everybody else is a liar, everything else you saw was wrong, ignore all the other evidence. It is time to put in the work and not just think, okay, this is a possible story that could happen. Possibility is not a reasonable doubt. It would be the easy way out to just say okay
"[Defense counsel]: Objection. Improper burden shifting. Misstates the law.
"THE COURT: Overruled.
"[Prosecutor]: It would be the easy way out to just take the possible story and say, oh, that's a possibility, it's out of our hands. That's not what the law says. The law says that you can only consider whether there are reasonable doubts and you have to consider all the evidence and actually put in the work to say, well, who do I believe in this case?
"Because if you believe everything the defendant said from that stand today, if you believe all of that, then yeah, he's not guilty, I didn't meet my burden. But it's impossible to believe all of that when we have all this other evidence glaring at us in the face."
B.
Analysis
A prosecutor engages in error when misstating the law during closing argument. (People v. Marshall (1996) 13 Cal.4th 799, 831.) Misstatement of the law is particularly problematic when the misstatement has the effect of "absolve[ing] the prosecution from its prima facie obligation to overcome reasonable doubt on all elements." (Ibid.)
We reject defendant's argument that the prosecutor shifted the burden of proof to the defense. During the portion of the argument focused on by the defendant, the prosecutor expressly noted the prosecution bore the burden of proof. The prosecutor additionally acknowledged the burden was to establish guilt beyond a reasonable doubt. There was no suggestion that the defense bore any burden of proof.
Any misstatement of the burden of proof by the prosecution was cured when the trial court instructed the jury with CALCRIM No. 220, which provided in pertinent part: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. . . . [¶] . . . [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." We presume the jury followed the court's instructions. (People v. Johnson (2015) 61 Cal.4th 734, 770.)
We also reject defendant's assertion that the prosecutor denigrated jurors who might have believed defendant's testimony. The prosecutor exhorted jurors to consider the evidence as a whole and to shoulder their responsibility to determine the credibility of all the witnesses. Rather than urging jurors to unthinkingly convict defendant, the prosecutor acknowledged that if jurors believed defendant's testimony a not guilty verdict was required. These statements were in harmony with CALCRIM No. 220 as given by the trial court.
The prosecutor did characterize defendant's version of the events as "impossible" in light of the other evidence introduced in the case. However, this characterization was within the wide latitude of the prosecution to comment on the evidence. "Regarding the scope of permissible prosecutorial argument, ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (People v. Stanley (2006) 39 Cal.4th 913, 951-952, quoting People v. Williams (1997) 16 Cal.4th 153, 221.) Here, the characterization was within the scope of fair argument in a case where defendant confessed he was selling drugs, was caught with a large amount of methamphetamine and heroin, and had drug sales paraphernalia including a digital scale and 100 small baggies for packaging.
IV
Defendant's Out-of-court Statements
Defendant argues he received ineffective assistance of counsel because his trial attorney did not object to the admission into evidence of his confession to Officer Magaziner that defendant had been selling drugs. We are not persuaded.
A.
Ineffective Assistance of Counsel
As the California Supreme Court has explained, "A criminal defendant's federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) On this point, we note the California Supreme Court has "reiterate[d] that '[f]ailure to object rarely constitutes constitutionally ineffective legal representation.' " (People v. Gray (2005) 37 Cal.4th 168, 209, quoting People v. Boyette (2002) 29 Cal.4th 381, 424, italics added.)
B.
Lack of Prejudice
Even if defendant's trial attorney could have raised a successful objection to the admission of his statements to Officer Magaziner, the exclusion of his out-of-court statements would not have resulted in a different outcome.
Exclusion of defendant's statements to Officer Magaziner still left the prosecution with evidence that the officer saw defendant lunge toward the passenger side of the truck - exactly where the methamphetamine and heroin were discovered. There was an obvious trail of methamphetamine on the floorboard of the truck. In addition to the trail of methamphetamine on the floorboard, Officer Magaziner discovered enough methamphetamine for 220 doses and enough heroin for 42 doses. Officer Magaziner's testimony established that the quantity of drugs found in the truck far exceeded amounts possessed by drug users for their own consumption. Further showing defendant intended to sell the drugs was evidence he had a digital scale with methamphetamine still on it and approximately 100 small bags (one of which already contained 0.2 grams of methamphetamine). No one else was in the truck with the defendant, the drugs, and the packaging materials.
Defendant points to his testimony that the truck was not his and he did not know of the drugs' presence. However, his testimony was undermined by the methamphetamine trail that was in plain sight and defendant's furtive motion directly toward the place where the drugs were found. And the presence of a methamphetamine pipe does not disprove defendant's possession of the drugs for sale. The large quantity of doses represented by the amounts of methamphetamine and heroin possessed by defendant established their possession for purposes of sale. The evidence of defendant's guilt was so strong that, even without the introduction of his statements to Officer Magaziner, the result would have been the same.
V
Criminal Laboratory Analysis Fee and Penalty Assessments
Defendant argues that penalty assessments on a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5) and on a drug program fee (Health & Saf. Code, § 11372.7), as well as a urinalysis fee (Pen. Code, § 1203.1ab), must be stricken because the trial court did not actually impose the penalty assessments during sentencing. The Attorney General counters that the penalty assessments are mandatory and must therefore be imposed by the trial court on remand. The Attorney General further argues, for the first time on appeal, that the trial court must also impose a criminal laboratory analysis fee because it is mandatory but was not imposed by the trial court. We remand for the trial court to impose the mandatory criminal laboratory analysis fee and the penalty assessments.
A.
Sentencing
The trial court referenced the probation officer's report in imposing fines and fees. The trial court imposed the drug program fee, but not a criminal laboratory fee or a urinalysis fee.
The probation officer's report recommended that defendant "pay a drug program fee in the amount of $150.00 pursuant to Section 11372.7 of the Health and Safety Code, plus $130 penalties and assessments as prescribed by law . . . ." However, the probation officer's report does not state the statutory basis for the $130 in penalties and assessments. The minute order differs in referring to a "lab fee $100" and explains that it is "$50X2." And a more detailed minute order states defendant is to "pay a mandatory laboratory fee fine in the amount of $50.00 ($50.00 x 1 offense) pursuant to Section 11372.5(a) of the Health and Safety Code, plus $130 penalties and assessments as prescribed by law . . . ." This detailed minute order includes a $25 urinalysis testing fee. The record sheds no light on the discrepancies between the minute orders and the probation officer's report.
B.
Criminal Laboratory Analysis Fees
Defendant argues that the penalty assessments for the criminal laboratory fee and the drug program fee should not have been included in the abstract of judgment because the trial court never imposed the penalty assessments. In response, the Attorney General notes the trial court did not actually impose the mandatory criminal laboratory analysis fee. We agree the criminal laboratory analysis fee is mandatory and must be imposed in this case.
Health and Safety Code section 11372.5, subdivision (a), provides in pertinent part: "Every person who is convicted of a violation of Section . . . 11351, . . . 11378, . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense." Here, defendant was convicted of possession of heroin for sale in violation of section 11351 and possession of methamphetamine for sale in violation of section 11378. Even though the prosecutor did not raise the issue in the trial court, the Attorney General may raise the issue for the first time on appeal as a statutorily unauthorized sentence. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 (Talibdeen).) Accordingly, we conclude a criminal laboratory analysis fee must be imposed for each of defendant's two convictions.
C.
Penalties and Assessments
Penal Code section 1464, subdivision (a)(1), and Government Code section 76000, subdivision (a)(1), each require the trial court to impose a penalty on other fines that attach on a criminal conviction. Specifically, subdivision (a)(1) of Penal Code section 1464 provides that "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, including all offenses, except parking offenses . . . ." (Italics added; see also Gov. Code, § 76000, subd. (a)(1) [containing nearly identical language].) In examining these two statutory provisions, the California Supreme Court held that "imposition of these penalties is mandatory" except when the defendant is in the midst of serving a sentence due to the defendant's failure to pay a fine. (Talibdeen, supra, 27 Cal.4th at p. 1155.)
Defendant argues that penalty assessments may not be imposed on the criminal laboratory and drug program fees. In so arguing, defendant relies on People v. Watts (2016) 2 Cal.App.5th 223 (Watts) and People v. Webb (2017) 13 Cal.App.5th 486 (Webb). Defendant acknowledges that, in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz), the California Supreme Court disapproved of Watts and Webb. However, defendant contends that enough of Watts and Webb remain valid authority to preclude the penalty assessments from being applied to him. We reject the contention.
In Ruiz, the California Supreme Court addressed the issue of whether the criminal laboratory analysis fee and the drug program fee constitute punishment or are nonpunitive administrative fees used to offset costs incurred by drug and crime labs. (Ruiz, supra, 4 Cal.5th at pp. 1103, 1105.) Based on the language in Health and Safety Code section 11372.5, the Ruiz court concluded that "the Legislature understood and intended the 'criminal laboratory analysis fee' to be a 'fine' and a 'penalty.' ([Health & Saf. Code, § 11372.5, subd. (a)].) The same conclusion appears from the language of section 11372.7, subdivision (a), which sets forth the 'drug program fee' in its first sentence and provides in its second sentence that '[t]he court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law.' (Italics added.) This language is significant because 'fines' and 'penalties' are commonly understood to be 'punishment.' " (Ruiz, supra, 4 Cal.5th at pp. 1109-1110.) In so holding, the California Supreme Court disapproved of published decisions holding that these fees are not subject to penalty assessments because they are not fines or penalties. (Id. at p. 1122, fn. 8, disapproving inter alia Webb, supra, 13 Cal.App.5th 486; Watts, supra, 2 Cal.App.5th 223.)
The laboratory analysis fee and the drug program fee are fines or penalties as those terms are used in the penalty assessment statutes. Therefore, defendant is subject to the penalty assessments on these fees as required by Penal Code section 1464 and Government Code section 76000. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [holding that "the criminal laboratory analysis fee [is] an increase to the total fine and therefore is subject to penalty assessments under [Penal Code] section 1464 and Government Code section 76000"]; People v. Sierra (1995) 37 Cal.App.4th 1690, 1696 [holding that "[t]he only reasonable interpretation of Health and Safety Code section 11372.7 is that it is a fine and/or a penalty to which the penalty assessment provisions of Penal Code section 1464 and Government Code section 76000 apply"].)
D.
Urinalysis Fee
Defendant challenges the inclusion of the urinalysis fee in one of the minute orders - pointing out that the fee was not imposed by the trial court. The Attorney General argues the fee should be imposed. Under Penal Code section 1203.1ab, the trial court may find in the interest of justice that a defendant may be excused from paying the cost of drug testing during probation. Thus, the trial court has discretion to impose the urinalysis fee. Here, the trial court omitted imposition of the urinalysis fee. On a silent record, we presume the trial court exercised its discretion not to impose this nonmandatory fee. (People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
DISPOSITION
Defendant's convictions are affirmed. The matter is remanded for the trial court to impose the criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and penalty assessments under Penal Code section 1464, subdivision (a)(1), and Government Code section 76000, subdivision (a)(1), on the criminal laboratory analysis fee and the drug program fee (Health & Saf. Code, § 11372.7). The judgment is affirmed in all other respects. The trial court shall forward an amended abstract of judgment to the relevant governing body. The amended abstract of judgment shall reflect that the urinalysis fee was not imposed on defendant.
/s/_________
HOCH, J. We concur: /s/_________
MURRAY, Acting P. J. /s/_________
BUTZ, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.