Filed 10/18/18 P. v. Anderson CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from judgments of the Superior Court of Los Angeles County, Stanley Blumenfeld, Judge. Affirmed as modified, with directions.

Brad Kaiserman, under appointments by the Court of Appeal, for Defendants and Appellants.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Colleen M. Tiedemann and Rene Judkiewicz, Deputies Attorney General, for Plaintiff and Respondent.

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Defendant and appellant Kenneth Demont Anderson was convicted by jury of sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)).[1] Defendant was sentenced to nine years in state prison. The court imposed the low term of three years, which it doubled under the three strikes law due to defendant’s prior conviction of robbery (Pen. Code, § 211). The court imposed an additional three years pursuant to section 11370.2 based on defendant’s prior conviction under section 11352. The court imposed a $50 laboratory fine pursuant to section 11372.5 plus a $145 penalty assessment.

Defendant raised two issues on appeal. First, he argued, and the People conceded, that an amendment to section 11370.2, operative January 1, 2018, eliminated the three-year enhancement for prior convictions under section 11352. Second, he asserted that the $145 penalty assessment was improperly imposed on the section 11372.5 laboratory fine, but that if it was correctly imposed, the amount of the penalty assessment was not properly detailed in the abstract of judgment.

In our opinion filed on March 13, 2018, we modified the judgment to strike the three-year prior conviction enhancement pursuant to section 11370.2. We further concluded that the penalty assessment was properly imposed under section 11372.5, and that the abstract of judgment must be amended to reflect the penalty assessment. In all other respects, we affirmed the judgment.

The California Supreme Court granted review and transferred the case back to us with directions to vacate our decision and reconsider the cause in light of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). We vacated our original decision in compliance with the Supreme Court’s direction. The parties filed supplemental briefs following transfer back to this court. (Cal. Rules of Court, rule 8.200(b).) Defendant argues that although Ruiz held a criminal laboratory fee is punitive, it did not decide the specific question of whether penalty assessments may be applied to a laboratory fee. The People take the opposite position.

We have now reconsidered the cause in light of Ruiz. Because Ruiz concluded a criminal laboratory analysis fee is punishment (see Ruiz, supra, 4 Cal.5th at p. 1122), we conclude the trial court did not err in imposing a penalty assessment on the criminal laboratory analysis fee.

We will modify the judgment to strike the three-year prior conviction enhancement pursuant to section 11370.2, and order the abstract of judgment amended to properly reflect the penalty assessment. In all other respects, we affirm the judgment.

DISCUSSION

Application of Amended Section 11370.2

At the time of defendant’s probation and sentence hearing, section 11370.2 provided for a three-year enhancement for specified felony convictions, including defendant’s prior conviction under section 11352. The trial court imposed the statutory enhancement.

Section 11370.2 was amended effective January 1, 2018, to eliminate the three-year enhancement for prior convictions under section 11352.[2] Defendant contends, and the Attorney General properly concedes, that defendant is entitled to the ameliorative benefit of the statutory amendment. (People v. Brown (2012) 54 Cal.4th 314, 323 [“When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, [fn. omitted] that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date”].)

The three-year enhancement under section 11370.2 must be stricken upon issuance of the remittitur.

Penalty Assessment Under Section 11372.5

Defendant next contends the criminal laboratory analysis fee is not subject to penalty assessments. Defendant does not challenge the trial court’s imposition of that fee; rather, he contends the trial court erred in imposing a penalty assessment on the fee. (§ 1202.4, subd. (a)(2); Gov. Code, § 76000; Pen. Code, § 1464.) Defendant’s claim lacks merit.

Pursuant to section 11372.5, subdivision (a), a person convicted of certain enumerated offenses—such as section 11352, for which defendant was convicted—must pay a criminal laboratory analysis fee in the amount of $50 for each separate offense. Although 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), defendant noted in his opening brief that there was a split of authority regarding whether a criminal laboratory analysis fee constitutes punishment and thus supports the imposition of an associated penalty assessment.

In Ruiz, the California Supreme Court considered the applicable statutory language and legislative history and determined that the Legislature understood and intended the criminal laboratory analysis fee to be a fine and a penalty. (Ruiz, supra, 4 Cal.5th at pp. 1108–1109.) The Supreme Court disapproved of People v. Watts (2016) 2 Cal.App.5th 223, 237, on which defendant relied in this case. (Ruiz, supra, at pp. 1113, 1122, fn. 8.) Because the criminal laboratory analysis fee is punishment, we conclude the trial court did not err in imposing a penalty assessment on the criminal laboratory analysis fee. (Id. at p. 1122.)

The Abstract of Judgment

Defendant’s remaining contention is that the abstract of judgment does not identify each component of the penalty assessments that attach to the section 11372.5 fee. In People v. Sharret (2011)191 Cal.App.4th 859, at page 864, we observed that “[i]n Los Angeles County, trial courts frequently orally impose the penalties and surcharge discussed above by a shorthand reference to ‘penalty assessments.’ The responsibility then falls to the trial court clerk to specify the penalties and surcharge in appropriate amounts in the minutes and, more importantly, the abstract of judgment. This is an acceptable practice.” In a similar vein, our colleagues in the Third District have held, “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [laboratory fee]; People v. Hong (1998) 64 Cal.App.4th 1071, 1080 [(Hong)] [restitution fine].) The abstract of judgment form used here, Judicial Council form CR–290 (rev. Jan.1, 2003) provides a number of lines for ‘other’ financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. (Hong, supra, 64 Cal.App.4th at pp. 1078–1079.) At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (Pen. Code, § 1205, subd. (c).)” (People v. High (2004) 119 Cal.App.4th 1192, 1200.)

Here, the minute order from the probation and sentence hearing reflects a penalty assessment of $145 based on the $50 crime laboratory analysis fee, but it does not identify the component parts of the penalty assessment. The abstract of judgment reflects the $50 section 11372.5 fee, but contains no mention of the $145 penalty assessment. An amended abstract of judgment is required to set forth the total amount and component parts of the $145 penalty assessment.

DISPOSITION

The three-year enhancement under Health and Safety Code section 11370.2 is stricken. The clerk of the superior court is to prepare an amended abstract of judgment reflecting the new term of imprisonment and the component parts of the $145 penalty assessment on the crime laboratory analysis fee. In all other respects, the judgment is affirmed.

MOOR, J.

We concur:

BAKER, Acting P.J.

KIM, J.