Opinion
C083981
12-10-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS CRUZ TORRES, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. S14CRF0012) OPINION ON TRANSFER
After pleading no contest to possession of a controlled substance for sale, the trial court imposed drug education program and crime lab fees, and attendant penalty assessments. Defendant Jesus Cruz Torres appeals the imposition of the penalty assessments, contending the drug education program and crime lab fees are not fines, and are not subject to penalty assessments.
In an unpublished opinion, we rejected defendants' claim that the trial court erred by imposing the penalty assessments and affirmed the judgment. (People v. Torres (Jan. 30, 2018, C083981) [nonpub. opn.].) Defendant petitioned the Supreme Court for review of the matter on the propriety of the penalty assessments. The Supreme Court granted his petition for review and deferred the matter pending consideration and disposition of a related issue in People v. Ruiz, S235556, or pending further order of the court.
The Supreme Court transferred the matter back to this court with directions to vacate our opinion and reconsider the cause in light of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). The People have filed a supplemental brief. (Cal. Rules of Court, rule 8.200(b)(1) ["Within 15 days after finality of a Supreme Court decision remanding or order transferring a cause to a Court of Appeal for further proceedings, any party may serve and file a supplemental opening brief in the Court of Appeal. Within 15 days after such a brief is filed, any opposing party may serve and file a supplemental responding brief"], rule 8.528(f).)
After consideration of Ruiz, supra, 4 Cal.5th 1100, we again conclude the trial court properly imposed penalty assessments on the criminal lab and drug program fees.
BACKGROUND
In April 2014, defendant pleaded no contest to possession of a controlled substance for sale, methamphetamine. (Health & Saf. Code, § 11378.) Pursuant to the plea agreement, the trial court granted defendant three years' formal probation, and imposed various fines and fees, including a drug education program fee under section 11372.7 and a crime lab fee under section 11372.5. The drug education program and crime lab fees included base fines of $150 and $50, respectively, and various penalty assessments and surcharges. The penalty assessments included: (1) a matching state penalty assessment (Pen. Code, § 1464, subd. (a)(1)); (2) a $10 state surcharge (id., § 1465.7); (3) a $25 state court construction penalty (Gov. Code, § 70372); (4) a $35 additional penalty (id., § 76000, subd. (a)(1)); (5) a $10 emergency medical services penalty (id., § 76000.5, subd. (a)(1)); (6) a $5 penalty for the implementation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (id., § 76104.6, subd. (a)(1)); and (7) a $20 forensic laboratories penalty (id., § 76104.7).
The substantive facts underlying the offense, and the probation violation, are not relevant to any issue raised on appeal and are therefore not recounted.
Undesignated statutory references are to the Health and Safety Code.
In September 2016, defendant admitted violating probation by committing assault with a deadly weapon, spousal abuse, and misdemeanor battery. At sentencing on the probation violation, the trial court imposed a sentence of two years, and reimposed the fines and fees from the original sentencing, including the drug education and crime lab fees. After sentencing and filing the notice of appeal, defendant requested the trial court to delete the penalty assessments imposed on the section 11372.5 and 11372.7 fines. The trial court denied the request.
DISCUSSION
Defendant contends the trial court erred by imposing penalty assessments on the crime lab and drug program fees under sections 11372.5 and 11372.7, respectively. Given the similarity of the language in the two statutes for purposes of this issue, the legal analysis is the same for each.
In pertinent part, section 11372.5, subdivision (a), provides: "Every person who is convicted of a violation of Section . . . 11378 . . . 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."
In pertinent part, 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." --------
Penalties or assessments must be imposed upon every fine, penalty, or forfeiture imposed by the trial court in a criminal case. (Gov. Code, § 76000; Pen. Code, § 1464; People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154 (Talibdeen).) The language of both sections is inconsistent, variously referring to the levy as a fee that increases "the total fine," and also as a "fine" "which shall be in addition to any other penalty." (§§ 11372.5, subd. (a), 11372.7.)
Defendant urges us to follow People v. Watts (2016) 2 Cal.App.5th 223 and determine the section 11372.5 and 11372.7 levies are not subject to penalty assessments because they are neither a fine nor a penalty. (Watts, at pp. 234-237.) In Ruiz, supra, 4 Cal.5th 1100, the Court explicitly rejected and disapproved of People v. Watts, supra, 2 Cal.App.5th 223.
In Ruiz, supra, 4 Cal.5th 1100, the Supreme Court reviewed whether it was appropriate to impose a criminal laboratory analysis fee and a drug program fee for a conviction of conspiracy to transport a controlled substance. (§ 11379, subd. (a).) Because neither fee statute referred to a person convicted of a conspiracy, the answer to this question relied on whether the fees came within the meaning of punishment in the conspiracy statute. (Ruiz, at p. 1104.) The Supreme Court detailed the statutory language and legislative history of both statutes and determined the Legislature "understood and intended the 'criminal laboratory analysis fee' to be a 'fine' and a 'penalty.' [Citation.] The same conclusion appears from the language of section 11372.7, subdivision (a) . . . ." (Id. at p. 1109.)
"Initially, neither the language of the statutes nor their legislative history persuades us to adopt defendant's view of the Legislature's 'main purpose' [of offsetting administrative costs of laboratory testing and government programs] in establishing these charges. As already explained, both statutes refer to the charges as 'fine[s]' and provide that, in some cases, the fine 'shall be in addition to any other penalty prescribed by law.' (§§ 11372.5, subd. (a), 11372.7, subd. (a), italics added.) In terms of legislative history, several analyses of the legislation that enacted section 11372.7 emphasized that the statute 'seeks to provide an enhanced penalty for those convicted of drug violations.' [Citations.] And an analysis of the legislation that amended section 11372.5, subdivision (a) in 1983—by adopting the term 'criminal laboratory analysis fee' and expanding the list of offenses subject to that charge (Stats. 1983, ch. 626, § 1, p. 2527)—explained that a purpose of the fee was to 'provide an additional reminder to offenders of the true cost of their acts.' [Citation.] This description discloses a legislative intent to promote one of 'the traditional aims of punishment' [citation]—deterrence—'by warning the offender, and others tempted to commit the same violation, of the price to be paid for such actions' [citation]. Thus, the statutory language and legislative history undermine defendant's claim regarding the Legislature's 'main purpose' in establishing the criminal laboratory analysis and drug program fees." (Ruiz, supra, 4 Cal.5th at pp. 1118-1119.)
Although noting it was not dispositive, Ruiz also relied on the Supreme Court's earlier decision in Talibdeen, supra, 27 Cal.4th 1151. (Ruiz, supra, 4 Cal.5th at p. 1120.) "As noted above, the central issue [in Talibdeen] was whether imposition of the additional penalties was 'mandatory'—in which case they could be imposed on appeal notwithstanding the People's failure to object below—or 'discretionary'—in which case they could not be imposed on appeal. (Talibdeen, supra, 27 Cal.4th at p. 1153.) A prerequisite to our holding that the penalties were, in fact, mandatory was that section 11372.5's criminal laboratory analysis fee constituted a 'fine, penalty, or forfeiture' within the meaning of Penal Code section 1464, subdivision (a)(1), and Government Code section 76000, subdivision (a)." (Ruiz, at p. 1120.) The Ruiz court found that whether or not Talibdeen compelled the conclusion that the criminal laboratory fees and drug program fees were punishment for purposes of Penal Code section 182, the reasoning in Talibdeen supported the conclusion. (Ruiz, at p. 1121.)
The reasoning of Ruiz and Talibdeen support the conclusion here that the criminal laboratory analysis fee and drug program fee are punishment for purposes of the penalty assessments of Penal Code section 1464 and Government Code section 76000, subdivision (a). That is, "it is clear the Legislature intended the fees at issue here to be punishment." (Ruiz, supra, 4 Cal.5th at p. 1122.) Because they were intended to be punishment, the penalty assessments are mandatory. Accordingly, we conclude the trial court did not err in imposing penalty assessments on the crime lab and drug program fees.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MAURO, J.