Filed 9/6/18 P. v. Ramos CA4/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Appeal from a judgment of the Superior Court of San Diego County, Ana L. Espana, Judge. Affirmed.

Tanya Dellaca, 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, Eric A. Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.

After transfer to this court from the California Supreme Court with directions to vacate our earlier decision and to reconsider this case in light of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz), we vacate our earlier decision and find that the criminal laboratory analysis fee of $50 per offense and the drug program fee of $150 per offense are fines that are punishment for Ramos's felony conviction, and thus are subject to penalty assessments. Accordingly, we affirm the decision of the trial court.

BACKGROUND

Defendant Andrea Marie Ramos pled guilty to one count of transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a).[1] In addition to imposing a four-year term of imprisonment, the court ordered that Ramos pay a drug program fee as provided under section 11372.7, subdivision (a), and a criminal laboratory analysis fee as provided under section 11372.5, subdivision (a). The amounts imposed—$615 for the drug program fee and $205 for the criminal laboratory analysis fee—appear to include penalty assessments under a number of statutory provisions. In accordance with the Supreme Court's ruling in Ruiz, supra, 4 Cal.5th at

p. 1122, and other appellate cases, we find that these two fees are fines that are subject to penalty assessments.[2]

DISCUSSION

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. There are multiple penalty assessments to be imposed, and they can collectively more than triple the fine. (See People v. Watts (2016) 2 Cal.App.5th 223, 229 (Watts) [list of applicable penalty assessments], overruled in Ruiz, supra, 4 Cal.5th at p. 1113 [disapproving Watts's finding that crime lab fee was not punitive].)

Ramos did not object to the penalty assessments in the trial court, but we may consider her argument on appeal because the erroneous imposition of penalty assessments is an unauthorized sentence that may be raised for the first time in the appellate court. (See People v. Anderson (2010) 50 Cal.4th 19, 26; People v. Walz (2008) 160 Cal.App.4th 1364, 1369.)

In our earlier opinion, we decided that sections 11372.5, subdivision (a), and 11372.7, subdivision (a), both imposed fines that were punishment for drug offenses, and thus the penalty assessments were applicable. (People v. Ramos (July 14, 2017, D070165 [nonpub. opn.] (Ramos I).) The Supreme Court granted review and deferred further action pending disposition of a related issue in Ruiz. The court has now issued its decision in Ruiz and transferred this case back to us to reconsider in light of Ruiz, supra, 4 Cal.5th 1100.

In Ruiz, the court reviewed whether it was appropriate to impose a criminal laboratory analysis fee and a drug program fee on 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, supra, 4 Cal.5th 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.)

As we noted in our earlier opinion, a number of appellate cases had concluded that those two sections created fines that were subject to penalty assessments. (Ramos I, supra, at pp. 3–4) discussing People v. Sierra (1995) 37 Cal.App.4th 1690, 1695–1696 [penalty assessments apply to drug program fees]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [penalty assessments apply to criminal laboratory analysis fees]; People v. Jordan (2003) 108 Cal.App.4th 349, 368 [same]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256–1257 [same]; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [criminal laboratory analysis fee is a fine]; see also People v. Sharret (2011) 191 Cal.App.4th 859, 869 [criminal laboratory analysis fee was punitive in context of Penal Code, § 654].) We also discussed and disagreed with Watts, supra, 2 Cal.App.5th at

p. 227, which concluded that the criminal laboratory analysis fee was not a fine or penalty and therefore, not subject to penalty assessments. (See Ramos I, at pp. 4–6.)

The Supreme Court in Ruiz explicitly rejected and disapproved of People v. Watts, supra, 2 Cal.App.5th 223, and other cases that held these fines were not

punishment—People v. Webb (2017) 13 Cal.App.5th 486, People v. Martinez (2017) 15 Cal.App.5th 659, and People v. Vega (2005)130 Cal.App.4th 183. (Ruiz, supra, 4 Cal.5th at p. 1122, fn. 8.) In finding that the drug fees were punitive in nature, the Ruiz court exhaustively discussed the statutes and their legislative history, and concluded that "[nothing] 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.) The high court also found, as we did, that the Supreme Court's earlier decision in People v. Talibdeen (2002) 27 Cal.4th 1151, was not dispositive, but the reasoning in Talibdeen supported the conclusion that the drug-related fees were punitive. (Ruiz, at pp. 1220–1221.)

The reasoning in Ruiz supports our earlier and current conclusion that the criminal laboratory analysis fee and drug program fee are punishment for purposes of the penalty assessments of the Penal Code and Government Code. As the Ruiz court stated, "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, the trial court did not err by imposing penalty assessments on these fees imposed following Ramos's conviction.

DISPOSITION

The judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.