P. v. Hunter

Filed 7/19/07 P. v. Hunter CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant appeals from the conviction entered after his guilty plea and challenges the judgment pursuant to Penal Code section 1237.5, asserting that the trial court exceeded its jurisdiction by imposing a fine under Health and Safety Code section 11372.5.[1] Respondent concedes the issue; and we shall modify, but otherwise affirm, the judgment.

Background

On January 3, 2006, an informant called the Del Norte County Sheriffs Office and informed the office that a vehicle at the Les Schwab tire shop in Crescent City contained marijuana. Based on this information, Sergeant Stevens and Detective Fleshman went to the tire shop and found the described vehicle parked on the business premises. They walked around the vehicle and observed a small amount of marijuana inside the vehicle on its center console.

The officers returned to their car and waited until the vehicle departed the tire shop, after which the officers pulled the vehicle over and conducted a search of the vehicle and its contents. A white plastic trash bag was found on the rear seat of the vehicle containing 10 one-gallon zip-lock bags, each holding about half a pound of marijuana buds. Approximately $8,000 in cash was found inside a suitcase in the rear of the vehicle.

The driver of the vehicle, appellant Robert E. Hunter, was arrested and charged with the felony offenses of possession of marijuana for sale ( 11359) and sale or transportation of marijuana ( 11360). Appellant was held to answer at the preliminary hearing on March 21, 2006. On April 7, 2006, appellant pleaded not guilty to both of the charged offenses and waived his right to a speedy trial.

Appellant decided to change his plea on August 11, 2006, and pleaded guilty to the amended count of maintaining a place for unlawful manufacture, storage, or distribution of controlled substance ( 11366.5). The previously charged offenses of possession of marijuana for sale and sale or transportation of marijuana were dismissed, and the court agreed to sentence appellant to probation conditioned upon his spending no more than 90 days in county jail. In addition, appellant agreed to forfeit the $8,000 in cash and the marijuana seized upon his arrest.

Appellants counsel requested to be present at appellants presentence interview with the probation officer because appellant has a hearing impairment. The request for appellants attorney to be present at the interview was denied but the interview was ordered to be conducted in writing to accommodate appellants hearing loss. Appellant reserved the right to contest the courts decision.

On October 5, 2006, the court sentenced appellant to the lower term of 16 months, suspended execution of sentence, and placed him on probation for three years. As a condition of the probation, appellant was ordered to serve 15 days in county jail with credit for time served. The court also imposed a restitution fine of $200 (Pen. Code,  1202.4, subd. (b)), a court security fee of $20 (Pen. Code,  1465.8), and a criminal laboratory analysis fee of $50 ( 11372.5).

Appellant filed a timely notice of appeal on October 23, 2006.

Discussion

Appellant asserts the trial court exceeded its jurisdiction by imposing the $50 criminal laboratory analysis fee pursuant to section 11372.5. We agree and respondent concedes the issue.

Section 11372.5 requires the trial court to impose a criminal laboratory analysis fee in the amount of $50 for each violation of the enumerated statutory provisions. Subdivision (a) provides in pertinent part: Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the Business and Professions Code shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment. The laboratory analysis fee is mandatory. ( 11372.5, subd. (a); People v. Clark (1992) 7 Cal.App.4th 1041, 1050.) The fee must be imposed along with mandatory penalty assessment even if the trial court failed to do so or the prosecution did not request imposition of the fee. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) There is no requirement that a defendant be found to have the ability to pay a laboratory analysis fee before such a fee can be imposed. (People v. Staley (1992) 10 Cal.App.4th 782, 784-785.) The main purpose of the laboratory analysis fee is not to exact retribution against drug dealers or deter drug activities, but rather to defray administrative cost of testing purported drugs. (People v. Vega (2005) 130 Cal.App.4th 183, 193.)

However, in this case appellant was convicted of one count of maintaining a place for unlawful manufacture, storage, or distribution of controlled substance in violation of section 11366.5. While the laboratory analysis fee applies to persons convicted of various controlled substance offenses, there is no mention in section 11372.5 of convictions for maintaining a place for controlled substances.

The laboratory analysis fee is mandatory (People v. Clark, supra, 7 Cal.App.4th at p. 1050), but the fee can only apply to the enumerated statutory violations. It is a fundamental rule of statutory interpretation that the inclusion of the one is the exclusion of another (i.e., inclusio unius est exclusio alterius) and the Legislatures express enumeration of qualifying statutory offenses in section 11372.5, subdivision (a), suggests the Legislature intended to exclude offenses not mentioned from the provision.

We note that the offense of maintaining a place for controlled substance under section 11366.5 is a specific statute in relation to the more general statute of aiding and abetting the manufacture of a controlled substance under section 11379.6, which is listed as a qualifying offense for imposing the laboratory analysis fee. ( 11372.5, subd. (a).) A specific or special statute is one that covers much of the same ground as a more general statute. (People v. Jenkins (1980) 28 Cal.3d 494, 505.) There is clear overlap between sections 11366.5 and 11379.6; and both statutes can encompass the act of maintaining a place for the manufacture of a controlled substance. ( 11366.5, subd. (a); 11379.6, subd. (a).) Because the statutes involve the same type of conduct, an argument can be made that the Legislature intended to prescribe the laboratory analysis fee with reference to both the more general statute and its special counterpart, section 11366.5. Following this reasoning, a trial court might impose the laboratory analysis fee in connection with a conviction under section 11366.5, even though that statute is not enumerated as one of the offenses qualifying for the fee.

However, this argument is deflated by People v. Sanchez (1994) 27 Cal.App.4th 918 and People v. Glenos (1992) 7 Cal.App.4th 1201, which held that a conviction under section 11366.5 does not supplant prosecution under section 11379.6, because the two statutes do not have corresponding elements and because they define different crimes described with different legislative intentions and purposes in mind. (People v. Jenkins, supra, 28 Cal.3d at p. 505; Sanchez, at p. 918.; Glenos, at p. 1210.) In other words, both statutes may be prosecuted contemporaneously; and they are distinct crimes. Therefore, section 11379.6 cannot draw the instant offense within the ambit of section 11372.5; and only convictions under the statutes listed therein can support imposition of the fee. The imposition of the laboratory analysis fee could not be lawfully authorized in this case because the judgment did not include any of the statutory offenses enumerated by section 11372.5.

As the Supreme Court explained in People v. Scott (1994) 9 Cal.4th 331, 354, a sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. The reasoning is that such error is clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.] (Ibid.) The imposition of a fee not lawfully authorized is jurisdictional error that is subject to correction whenever it comes to a courts attention. (People v. Dotson (1997) 16 Cal.4th 547, 554; People v. Karaman (1992) 4 Cal.4th 335, 345-346, 349; In re Ricky H. (1981) 30 Cal.3d 176, 191; People v. Davis (1981) 29 Cal.3d 814, 827; In re Sandel (1966) 64 Cal.2d 412, 414-418.) For these reasons, the judgment shall be modified to vacate the imposition of the unauthorized fee.

Disposition

Accordingly, the criminal laboratory analysis fee is stricken, and the rest of the judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P. J.

_________________________

Richman, J.

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[1]All further statutory references are to the Health and Safety Code unless otherwise indicated.