P. v. Wong

Filed 5/15/07 P. v. Wong CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Erik S. Wong contends the trial court erred by imposing penalty assessments in connection with a laboratory analysis fine (Health and Safety Code,  11372.5, subd. (a))[1] and a drug program fine ( 11372.7, subd. (a)). We affirm.

Facts & Procedural Background

In a sting operation organized by the Napa Special Investigations Bureau in September 2005, appellant was apprehended in possession of 50.1 grams of cocaine and 15 grams of marijuana. On December 5, 2005, the Napa County District Attorney filed an information charging appellant as follows: count one felony possession for sale of cocaine ( 11351); count two felony sale/transportation of cocaine ( 11352, subd. (a)); count three misdemeanor furnishing of marijuana ( 11360, subd. (b)). At a bench trial on March 20, 2006, the trial court found appellant guilty on all counts after appellants counsel stipulated the preliminary hearing transcript could be received into evidence and the evidence therein supported all counts.

The probation report recommended appellants sentence should be suspended and he should be placed on formal probation for a period of three years. The probation report also recommended various terms and conditions be imposed. These included, as pertinent here: 21. Pay a Drug Program Fee in the amount of $1,395.00 pursuant to Section 11372.7 H&S, which includes penalty assessment fees. [] 22. Pay a Laboratory Analysis Fee in the amount of $310 pursuant to Section 11372.5 H&S which includes penalty assessment fees. At the sentencing hearing on April 26, 2006, the trial court suspended imposition of sentence as recommended and placed appellant on formal probation of three years with the condition he serve 90 days in jail. The trial court amended a few of the conditions of probation set forth in the probation report, but with respect to numbers 21 and 22 stated: Number 22 is correct. Its a hundred and fifty five dollars per count for a total of $310 under 11372.5. And thats for the 11351 and 11352 only. There is no such fee for the 11360. And probation has number 21 correct also, $1395, because there are three different drug counts. Theyre all in a chapter where 11372.7 is found. And that fee is $465 per count, including state and county penalty assessments.[2] Appellant agreed to the conditions of probation as recited by the trial court. Notice of appeal was timely filed on May 16, 2006.

Discussion

Section 11372.5, subdivision (a) requires persons convicted of specified drug offenses to pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. Subject to a determination of a defendants ability to pay, subdivision (a) of section 11372.7 requires persons convicted of a certain drug offenses to pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. Appellant does not dispute his offenses qualify for assessments of laboratory analysis and drug program fees. Rather, he contends the trial court erred by adding penalty assessments onto these fees because they do not constitute punishment and are not fines to which penalty assessments apply. Accordingly, he asserts the penalty assessments must be stricken and fees be assessed under sections 11372.5 and 11372.7 at their base amounts of $100 and $450, respectively. We disagree.

Additional penalties, or assessments, are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses. This requirement is mandated by Penal Code section 1464 and Government Code section 76000. (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694 (Sierra).) In Sierra, the Court of Appeal for the Fifth Appellate District directly addressed the question of whether a penalty assessment may be charged on a drug program fee imposed under section 11372.7. The court pointed out that the fee imposed under section 11372.7, subdivision (a) is described as both a fine and a penalty within that subdivision. (Sierra, supra, 37 Cal.App.4th at p. 1695.) However, the court held that [t]he only reasonable interpretation of Health and Safety Code section 11372.7 is that it is a fine and/or penalty to which the penalty assessment provisions of Penal Code section 1464 and Government Code section 76000 apply. (Id. at p. 1696.) Moreover, in People v. Martinez (1998) 65 Cal.App.4th 1511 (Martinez), Division Five of the Court of Appeal for the Second Appellate District extended the reasoning of Sierra to the laboratory analysis fee imposed under section 11372.5. The court held: Under 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 section 1464 and Government Code section 76000. (Martinez, supra, 65 Cal.App.4th at p. 1522; see also People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [describing laboratory fee as a fine which must be recorded in the abstract of judgment].)

Also, People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen) addressed a closely related issue of whether a trial court has discretion to waive penalties under Penal Code section 1464. (Talibdeen, supra, 27 Cal.4th at p. 1153.) The court noted at sentencing the trial court imposed . . . a laboratory analysis fee of $50 pursuant to Health and Safety Code section 11372.5, subdivision (a) [and] [a]lthough 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. (Ibid, fn. omitted.) Thus, in Talibdeen, the court proceeded on the basis penalty assessments applied to a laboratory analysis fee imposed under section 11372.5 did not constitute an illegal sentence. (Talibdeen, supra, 27 Cal.4th at p. 1153 & fn. 2.) Moreover, the court held the trial court has no discretion in this matter and such assessment of penalties is mandatory. (Ibid.) Under a narrow exception, however, the trial court may waive such penalties if the defendant is in the midst of serving a sentence imposed because he failed to a pay a fine. (Talibdeen, supra, 27 Cal.4th at p. 1155.)

Appellant asserts Talibdeen, supra, is not controlling, because it did not directly decide the issue at hand, and the reasoning of Sierra, supra, is faulty. Appellant urges we reject those cases and follow People v. Vega (2005) 130 Cal.App.4th 183 (Vega). According to appellant, Vega held a laboratory analysis fee was not punishment and therefore not subject to penalty assessments.

In Vega, the defendants were convicted of conspiracy to transport cocaine and to possess cocaine for sale, but they were not convicted (or charged) with the offenses of transporting cocaine or possessing cocaine for sale. (Vega, supra, 130 Cal.App.4th at pp. 186-187.) The issue on appeal was whether the trial court was authorized to impose a laboratory analysis fee under section 11375.2, where the section expressly required such a fee for transportation or possession for sale convictions, but was silent as to whether the fee applied to a conviction for conspiracy to commit those same crimes. (Vega, supra, 130 Cal.App.4th at pp. 193-194.) Although the failure to list conspiracy in section 11372.5 suggested the fee was inapplicable, the court held that because conspiracies under Penal Code section 182 are punished in the same manner and to the same extent as the underlying felony, the dispositive question was whether the laboratory analysis fee constituted punishment. (Vega, supra, 130 Cal.App.4th at p. 194.) The court held the fee is not punishment, reasoning in part that the charges purpose is not retribution or deterrence but is instead to defray administrative costs. Because the court held the laboratory analysis fee was not properly imposed, it ordered the fee as well as the associated penalty assessments stricken. (Id. at p. 195.) Plainly, Vega addressed whether the laboratory analysis fee applied to the conviction in the first instance, not whether penalty assessments were properly appended to the fee. Vega did not decide or even consider whether penalty assessments apply to a properly imposed laboratory analysis fee. Accordingly, it does not control here.[3]

DISPOSITION

The judgment is affirmed.

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Parrilli, J.

We concur:

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McGuiness, P. J.

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Pollak, J.

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[1] Further statutory references are to the Health and Safety Code unless otherwise specified.

[2] Appellant does not dispute the amounts the trial court arrived at for fees and penalty assessments per count. The trial courts figures appear to be accurate. Drug Program fee: $150 base ( 11372.7) plus 20% (PC 1465.7) = $180 x 2 ($10 penalty for every $10 fine, 1464) = $360 + $105 ($7 penalty for every $10 of base fine, Gov. Code 76000) = $465 x 3 counts = $1395. Laboratory Analysis Fee: $50 base ( 11372.5) plus 20% (PC 1465.7) = $60 x 2 ($10 penalty for every $10 fine, 1464) = $120 + $35 ($7 penalty for every $10 of base fine, Gov. Code 76000) = $155 x 2 counts = $310.

[3] Indeed, the Vega court formulated the holding of Talibdeen, supra, as follows: [T]he penalty assessments applicable to every fine, penalty, or forfeiture applied to the laboratory analysis fee in Health and Safety Code section 11372.5. (Vega, supra, 130 Cal.App.4th at p. 194, citing Talibdeen, supra, 27 Cal.4th at pp. 1153-1154.) Also, Division Five of the Court of Appeal for the Second Appellate District very recently reaffirmed drug laboratory fees under section 11372.5 are subject to penalty assessments. (People v. Chavez (April 19, 2007, B190270), 2007 Cal.App. Lexis 608, 2007 WL 1152988.)