Opinion
E067543
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. YOLANDA WITTEKIND, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR059268) OPINION APPEAL from the Superior Court of San Bernardino County. Victor R. Stull, Judge. Affirmed as modified. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Yolanda Wittekind pled no contest to one count of possession of methamphetamine for sale. (Health & Saf. Code, § 11358, count 1.) She also admitted that she was in violation of her probation in another case. A trial court sentenced her to three years on count 1, with eight months to be served in county prison and the remaining time on mandatory supervision. The court imposed a consecutive term of eight months in custody on the probation violation. The court also ordered defendant to pay certain fines and fees, including a criminal laboratory analysis fee under section 11372.5, subdivision (a).
All further statutory references will be to the Health and Safety Code, unless otherwise noted.
The amount the court imposed for the criminal laboratory analysis fee under section 11372.5 appears to include penalty assessments under a number of statutory provisions. Relying on People v. Watts (2016) 2 Cal.App.5th 223 (Watts), defendant argues the fee is not penal in nature and, accordingly, not subject to the imposition of penalty assessments. We disagree. In the alternative, she argues, and the People concede, that the criminal laboratory analysis fee should be $205, not $295. We agree and therefore modify the amount of the fee imposed. In all other respects, we affirm.
After defendant filed her briefing, the Supreme Court overruled Watts in part in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz).
ANALYSIS
The Criminal Laboratory Analysis Fee is Properly Considered a Fine, Subject to Penalty
Assessments
The California Supreme Court has granted review of two recent opinions that concluded the criminal laboratory analysis fee under Health and Safety Code section 11372.5 is a fine subject to penalty assessments under Penal Code section 1464 and Government Code section 76000. (People v. Moore (2017) 12 Cal.App.5th 558, review granted September 13, 2017, S243387, and People v. Alford (2017) 12 Cal.App.5th 964, review granted September 13, 2017, S243340.)
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).) Although defendant did not object to the penalty assessments at the time of the plea or sentencing, she subsequently filed with the trial court a request for correction of the criminal laboratory analysis fee under Health and Safety Code section 11372.5, subdivision (a) (hereinafter, the lab analysis fee). The court denied the motion. Thus, we may consider her argument on appeal. (Pen. Code, § 1237.2.)
Defendant contends the lab analysis fee is not a fine or penalty, and, therefore, the court should not have applied penalty assessments to it. However, the plain language of the statute describes the fee as a fine. Section 11372.5, subdivision (a), provides that every person who is convicted of one of the enumerated offenses "shall pay a criminal laboratory analysis fee in the amount of fifty ($50) for each separate offense." The statute then states: "The court shall increase the total fine necessary to include this increment." If no other fine is applicable, "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." (§ 11372.5, subd. (a).) Thus, under the plain terms of the statute, this fee is a fine and penalty for purposes of imposing penalty assessments. (See People v. Prunty (2015) 62 Cal.4th 59, 72 [the text of the statute " 'generally provide[s] the most reliable indicator' " of the Legislature's intended purpose].) The fact that the statute also describes this amount as a fee is not dispositive.
As the People point out, the court in People v. Sierra (1995) 37 Cal.App.4th 1690 (Sierra) came to the same conclusion with regard to the drug program fee imposed pursuant to section 11372.7. The Sierra court noted that section 11372.7, subdivision (a), "describe[d] itself as both a fine and/or a penalty." (Sierra, at p. 1695.) The court then reasoned as follows: "Government Code section 76000 creates a mandatory levy in dollars prescribed by law that must be imposed pursuant to Penal Code section 1464 'upon every fine, penalty, or forfeiture.' (Italics added.) This is the identical language used in subdivision (a) of Penal Code section 1464. Health and Safety Code section 11372.7, subdivision (a) is simply one more fine and/or penalty prescribed by law. As such, it is subject to the mandatory penalty assessments set forth in Government Code section 76000 and Penal Code section 1464." (Ibid.)
Although Sierra, supra, 37 Cal.App.4th 1690 concerned the drug program fee under section 11372.7, subdivision (a), the same analysis applies to the fee under section 11372.5. A host of courts have followed the reasoning of Sierra and have consistently treated the lab analysis fee as a fine subject to penalty assessments. The court in People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 (Martinez) explained that section 11372.7 (concerning the drug program fee) states that " '[t]he court shall increase the total fine . . to include this increment . . . .' " Section 11372.5, the lab analysis fee provision, contains that same language in subdivision (a): "The court shall increase the total fine . . . to include this increment." The Martinez court declared that "[u]nder the reasoning of Sierra, we conclude Health and Safety Code section 11372.5, defines the criminal laboratory analysis fee as an increase to the total fine and therefore is subject to penalty assessments under [Penal Code] section 1464 and Government Code section 76000." (Martinez, at p. 1522; see People v. Jordan (2003) 108 Cal.App.4th 349, 368; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.)
Significantly, the Supreme Court has likewise approved of penalty assessments imposed on the lab analysis fee. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153 (Talibdeen).) The issue in Talibdeen was whether the Court of Appeal erred in imposing the penalties based on the lab analysis fee (§ 11372.5), even though the People did not object to the trial court's failure to impose the penalties at sentencing. (Talibdeen, at p. 1153.) The Supreme Court stated: "At sentencing, the trial court imposed, among other things, a laboratory analysis fee of $50 pursuant to Health and Safety Code section 11372.5, subdivision (a). Although subdivision (a) of Penal Code section 1464 and subdivision (a) of Government Code section 76000 called for the imposition of state and county penalties based on such a fee, the trial court did not levy these penalties, and the People did not object at sentencing. Nonetheless, the Court of Appeal imposed the penalties because they were mandatory—and not discretionary—sentencing choices." (Ibid., italics added, fns. omitted.) After noting that the penalty assessments were "called for" by statute, the Supreme Court in a footnote provided the applicable calculations: "Based on the $50 laboratory fee, the state penalty would have been $50 (see Pen. Code, § 1464, subd. (a)), and the county penalty would have been $35 (see Gov. Code, § 76000, subd. (a))." (Ibid. & fn. 2.)
The Supreme Court in Talibdeen clearly treated the lab analysis fee as a fine subject to penalty assessments. The court stated: "[A]t the time of sentencing, the trial court had no choice and had to impose state and county penalties in a statutorily determined amount on defendant. The erroneous omission of these penalties therefore 'present[ed] a pure question of law with only one answer . . . .' [Citation.] Accordingly, we follow our lower courts and hold that the Court of Appeal properly corrected the trial court's omission of state and county penalties even though the People raised the issue for the first time on appeal." (Talibdeen, supra, 27 Cal.4th at p. 1157.) Thus, the Supreme Court concluded that the penalties were mandatory, and the trial court's omission of them was erroneous. (Ibid.)
As defendant points out, Watts, supra, 2 Cal.App.5th 223 disagreed with the well-established consensus that the lab analysis fee is a fine subject to penalty assessments. (Id. at p. 227.) As to Talibdeen, Watts pointed out that the Supreme Court in that case "assumed, but never decided, that sentencing courts are required to impose penalty assessments on the crime-lab fee. Consequently, Talibdeen is not authority for the proposition that penalty assessments apply to the fee." (Watts, supra, 2 Cal.App.5th at p. 231.)
However, Watts was recently overruled in part by the Supreme Court in Ruiz, supra, 4 Cal.5th 1100. In Ruiz, the defendant argued that the lab analysis fee was not punishment for purposes of Penal Code section 182, subdivision (a), which provides that persons convicted of conspiring to commit a felony "shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony." Thus, he claimed the fee was unauthorized. (Ruiz, supra, 4 Cal.5th at pp. 1104-1105.) The issue was whether the lab analysis fee was part of " 'the punishment' " " 'provided for' " the underlying target felony. (Id. at p. 1107.) The Supreme Court concluded that both the statutory language and the legislative history of Health and Safety Code section 11372.5 demonstrated the Legislature's intent that the lab analysis fee constituted punishment. (Id. at pp. 1108-1112.) The Supreme Court expressly rejected Watts' conclusion that the lab analysis fee " 'is by its nature not punishment and therefore not a "fine" or "penalty" except,' as the second paragraph of section 11372.5, subdivision (a), specifies, 'in the case of an offense "for which a fine is not authorized by other provisions of law." ' " (Ruiz, at p. 1113; see id. at p. 1122, fn 8.)
We note that the defendant in Ruiz, filed a request to submit supplemental briefing on the issue of whether the lab analysis fee was subject to penalty assessments. However, the Supreme Court denied his request, stating that it would leave it to the Court of Appeal to decide how to address that issue. (Ruiz, supra, 4 Cal.5th at p. 1122.)
Pursuant to Talibdeen, supra, 27 Cal.4th 1151 and Ruiz, supra, 4 Cal.5th 1100, we conclude the lab analysis fee is punishment and is subject to penalty assessments. Therefore, the trial court here did not err by imposing penalty assessments on the lab analysis fee.
Defendant additionally argues, and the People concede, that the lab analysis fee should be $205 instead of $295. We agree. The record indicates that the court asked the clerk the amount of the lab analysis fee, and the clerk stated it was $205. However, later in the hearing, when the court was ordering the various fines and fees, it imposed a "$295 lab analysis fee." Thus, it appears that the court misspoke when imposing $295 instead of $205. We will modify the judgment accordingly.
The lab analysis fee was apparently subject to the seven penalty assessments: "(1) the 100 percent state penalty under Penal Code section 1464, subdivision (a)(1); (2) the 20 percent state surcharge under Penal Code section 1465.7, subdivision (a); (3) the 50 percent court-construction penalty under Government Code section 70372, subdivision (a)(1); (4) the 70 percent county penalty under Government Code section 76000, subdivision (a)(1); (5) the 20 percent emergency-medical-services penalty under Government Code section 76000.5, subdivision (a)(1); (6) the 10 percent Proposition 69 DNA penalty under Government Code section 76104.6, subdivision (a)(1); and (7) the 40 percent state-only DNA penalty under Government Code section 76104.7, subdivision (a). All together, these assessments increase the charges to which they apply by a total of 310 percent." (Watts, supra, 2 Cal.App.5th at p. 229.) --------
DISPOSITION
The judgment is modified to impose a criminal laboratory analysis fee under section 11372.5 in the amount of $205. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.