Filed 11/20/18 P. v. Mendoza CA5

Opinion on transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Benjamin Mendoza pled no contest in case No. BF149024A to possession of methamphetamine for sale (Health & Saf. Code, § 11378).[1] In case No. BF153404A, he pled no contest to maintaining a place for selling, giving away or using methamphetamine (§ 11366).

On September 15, 2015, Mendoza’s appellate counsel filed a brief which asked this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Mendoza did not respond to this court’s invitation to submit additional briefing.

However, on August 8, 2016, the Court of Appeal, First Appellate District, Division One filed its opinion in People v. Watts (2016) 2 Cal.App.5th 223 (Watts), which held that the $50 assessment imposed pursuant to section 11372.5 is a fee, not a fine, penalty or forfeiture, and thus not subject to penalty assessments. (Id. at pp. 229, 237.)

On September 6, 2016, appellate counsel filed a request for leave to file a supplemental opening brief seeking to challenge $145 in penalty assessments imposed on the $50 laboratory fee the court ordered Mendoza to pay in case No. BF149024A.

On October 26, 2016, this court granted Mendoza’s request and allowed the parties to file a supplemental brief. On that date, Mendoza filed a supplemental brief in which he relied on Watts to contend the $145 in penalty assessments imposed on the $50 laboratory assessment in case No. BF149024A must be stricken because the laboratory fee is not a penalty.

On December 29, 2016, in an unpublished opinion, this court rejected appellant’s claim that the laboratory fee is not subject to penalty assessments.

On January 31, 2017, Mendoza filed a petition for review with the Supreme Court.

On March 22, 2017, the Supreme Court granted Mendoza’s petition.

On July 26, 2018, the Supreme Court ordered the matter transferred to this court with directions to vacate our decision and reconsider the cause in light of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). Also on that date, this court sent a letter to counsel allowing them to file supplemental briefing. Having considered the cause in light of Ruiz and a supplemental brief filed by respondent, we again affirm the judgment.

FACTS

On June 12, 2013, Kern County sheriff’s deputies conducted a probation search of Mendoza’s room at the Garden Suites Hotel while Mendoza and codefendant, Annabelle Miller, were present. During the search, the deputies found three baggies that contained a total of 142.6 grams of methamphetamine, six cellphones, a digital scale with suspected methamphetamine residue, hypodermic needles and syringes, some of which were loaded with suspected methamphetamine, and $449 in currency (case No. BF149024A).

On December 16, 2013, the district attorney filed an information in case No. BF149024A charging Mendoza and Miller with possession for sale of methamphetamine (count 1), possession of a controlled substance (count 2/§ 11377, subd. (a)), and possession of drug paraphernalia (count 3/§ 11364.1), a misdemeanor. The information also charged Mendoza with a prior conviction enhancement (§ 11370.2, subd. (c)).

On February 7, 2014, Mendoza entered his no contest plea in case No. BF149024A to possession for sale of methamphetamine in exchange for the dismissal of the remaining counts and allegations against him and for a stipulated, local term of three years, split into one year in local custody and two years on supervised release.

On February 20, 2014, based on an incident that occurred the previous day, the district attorney filed a six-count complaint against Mendoza and three codefendants (case No. BF153404A). The complaint charged Mendoza with maintaining a place for the purpose of selling, giving away or using methamphetamine (count 1/§ 11366), possession of methamphetamine (count 2/§ 11377, subd. (a)), possession of ammunition by a felon (count 3/Pen. Code, § 30305, subd. (a)(1)), and possession of narcotics paraphernalia (count 6/§ 11364.1).

On March 19, 2014, Mendoza failed to appear for his sentencing hearing in case No. BF149024A and the court issued a warrant for his arrest.

On July 28, 2014, in case No. BF153404A, Mendoza pled no contest to count 1 in exchange for the dismissal of the remaining counts in that case, the prosecutor’s agreement not to charge Mendoza with felony failure to appear, and a stipulated, combined prison term of three years eight months in both cases.

On September 18, 2014, the court sentenced Mendoza pursuant to his plea bargain to an aggregate term of three years eight months, the aggravated term of three years on his possession for sale of methamphetamine conviction in case No. BF149024A and a consecutive eight months (one third the middle term of two years) on his conviction in case No. BF153404A for violating section 11366. In case No. BF149024A, the court imposed a $50 laboratory fee pursuant to section 11372.5, subdivision (a) and $145 in penalty assessments. The court also imposed a $50 lab fee and $145 in penalty assessments on Mendoza’s conviction in case No. BF153404A. However, the court “deleted” this fee and the penalty assessments when it was advised by the probation officer that section 11372.5 did not apply to a violation of section 11366. (See § 11372.5, subd. (a).)[2]

DISCUSSION

Mendoza relies on People v. Watts, supra, 2 Cal.App.5th 223, to contend that the laboratory fee provided for by section 11372.5 is not subject to penalty assessments because it is a fee and not a fine. Thus, according to Mendoza, the $145 in penalty assessments must be stricken because they constitute an unauthorized sentence. We disagree.

Section 11372.5 imposes a “criminal laboratory analysis fee” on defendants who are convicted of enumerated drug offenses, including a violation of section 11378. (§ 11372.5, subd. (a).) 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., Pen. Code, § 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 drug program fee provided by section 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 section 11372.5: “Under the reasoning of Sierra[, supra, 37 Cal.App.4th 1690], we conclude … section 11372.5, defines the [lab] 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, supra, at p. 1522; see People v. Sharret (2011) 191 Cal.App.4th 859, 869-870 [because lab fee was punitive in nature, court was required to stay its imposition under Pen. Code, § 654]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1257 [court required to impose state and county penalty assessments on lab fee]; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [abstract of judgment had to be amended to include lab fee imposed because it was “an increment of a fine”]; see also People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [dictum noting that the trial court “had no choice and had to impose” penalties upon the lab fee].)

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.)

Recently, in Ruiz, supra, 4 Cal.5th 1100, the Supreme Court held that the laboratory fee and drug program fee (§ 11372.7) were punishment for purposes of the conspiracy statute (Pen. Code, § 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 several other cases to the extent they were inconsistent with the court’s holding. (Ruiz, at p. 205, fn. 8.) Thus, in accord with Martinez, we conclude the laboratory fee is a fine or penalty that is subject to penalty assessments, and that the trial court properly imposed penalty assessments on this fee.

DISPOSITION

The trial court is directed to issue an amended minute order for Mendoza’s September 18, 2014, sentencing in case No. BF153404A and an amended abstract of judgment for both cases that do not indicate that the court imposed a laboratory fee and corresponding penalty assessments in case No. BF153404A. The court is further directed to forward a certified copy of the abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.