Filed 4/10/18 P. v. Sedgwick CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yuba)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN KEITH SEDGWICK,

Defendant and Appellant.


C081181

(Super. Ct. Nos. CRF15608, CRF15403)


Defendant’s initial contention on appeal is that the trial court improperly imposed a penalty assessment of $450 on the drug program fee imposed pursuant to Health and Safety Code section 11372.7. He argues the language of section 11372.7 demonstrates it is a fee, not a fine. And, as a fee, it is not subject to penalty assessments.
For each conviction of enumerated drug offenses, section 11372.5 imposes on defendants a criminal laboratory analysis fee not to exceed $50, and section 11372.7 imposes a drug program fee not to exceed $150. In our decision in People v. Moore (2017) 12 Cal.App.5th 558, review granted September 13, 2017, S243387 (Moore), we concluded the criminal laboratory analysis fee is a fine or penalty, subject to additional penalty assessments under Penal Code section 1464 and Government Code section 76000. (Moore, at p. 571.) In Moore we expressly did not resolve the question whether the drug program fee also is a fine or penalty subject to additional penalty assessments. (Id. at p. 572, review granted Sept. 13, 2017, S243387.) In this appeal, we conclude it is.
In a supplemental brief, defendant contends he is entitled to benefit from recent amendments to the law regarding sentencing enhancements for prior drug-related convictions. The People argue defendant agreed to the sentence imposed and thus cannot benefit from recent changes to the law unless, at the time of sentencing, the trial court lacked fundamental jurisdiction to sentence defendant. We conclude defendant’s sentencing enhancement for a prior drug-related conviction must be stricken and remand the matter for resentencing. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, in Yuba County Superior Court case No. CFR15403, defendant Brian Keith Sedgwick pleaded no contest to inflicting corporal injury on a spouse or cohabitant in violation of Penal Code section 273.5, subdivision (a).
In December 2015, in Yuba County Superior Court case No. CFR15608, defendant pleaded no contest to possession of heroin for sale in violation of section 11351, and admitted a prior drug-related conviction (§ 11370.2, subd. (a)).
On January 11, 2016, the trial court sentenced defendant to serve an aggregate term of seven years in state prison: three years for the domestic violence conviction, one year for the possession conviction, and an additional three years for the prior drug-related conviction. The court also imposed various fines and fees. Included in those fines and fees were a laboratory fee (§ 11372.5) to which the court added penalty assessments, and a drug program fee (§ 11372.7) to which the court also added penalty assessments. Defendant appealed.
Shortly after filing his notice of appeal, defendant contacted the trial court and asked the court to “strike the penalty assessments” levied on the laboratory and drug program fees. In support of his request, defendant relied on People v. Watts (2016) 2 Cal.App.5th 223 (Watts), which held the laboratory fee is a fee and not a fine, subject to penalty assessments. The trial court granted defendant’s request with regard to the laboratory fee but not the drug program fee.
DISCUSSION
I
Penalty Assessments on Drug Program Fee
Defendant contends the trial court improperly imposed a penalty assessment of $450 on the drug program fee imposed pursuant to section 11372.7. He argues the language of section 11372.7 demonstrates it is a fee, not a fine. And, as a fee, it is not subject to penalty assessments. We disagree.
Section 11372.7, subdivision (a), provides: “Except as otherwise provided in subdivision (b) or (e), each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law.”
Based on similar statutory language, we concluded the laboratory analysis fee imposed pursuant to section 11372.5 “constitutes a fine or penalty for purposes of the penalty assessments imposed by Penal Code section 1464 and Government Code section 76000.” (Moore, supra, 12 Cal.App.5th at p. 571, review granted Sept. 13 2017, S243387.) We reach the same conclusion here with regard to the drug program fee.
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.) (People v. Alford (2017) 12 Cal.App.5th 964, 968-969, review granted Sept. 13, 2017, S243340 (Alford), citing People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154 (Talibdeen).) The language of both sections is inconsistent, variously referring to the levy as a fee that increases “the total fine,” and also as a “fine” “which shall be in addition to any other penalty.” (§§ 11372.5, subd. (a), 11372.7.)
Defendant urges us to follow Watts, supra, 2 Cal.App.5th 223 and determine the section 11372.7 levies are not subject to penalty assessments because they are neither a fine nor a penalty. (Watts, at pp. 234-237.) We decline the invitation.
We remain persuaded by our analysis in Moore, supra, 12 Cal.App.5th 558, review granted September 13, 2017, S243387, and the other appellate courts that have reached the same conclusion. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1520 (Martinez); People v. Terrell (1999) 69 Cal.App.4th 1246, 1257; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414; People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1252; People v. Sharret (2011) 191 Cal.App.4th 859, 869; Alford, supra, 12 Cal.App.5th at pp. 974-977, review granted Sept. 13, 2017, S243340.) As we recently explained in Moore, “[a]lthough Watts advances a thoughtful interpretation of section 11372.5, we conclude the language of the statute and the weight of case authority leads to the conclusion the criminal laboratory analysis fee constitutes a fine or penalty for purposes of penalty assessments.” In addition, “the Legislature, which is presumed to be aware of longstanding judicial interpretations of statute [citation], has not amended section 11372.5 to abrogate the holding the section constitutes a fine or penalty in the nearly two decades since the decision in Martinez, supra, 65 Cal.App.4th at pages 1520-1522.” (Moore, at pp. 569, 571, review granted Sept. 13, 2017, S243387.)
Also as noted in Moore, review granted September 13, 2017, S243387, interpreting the section 11372.5 and 11372.7 levies as fees would be inconsistent with the outcome in Talibdeen, where the Supreme Court affirmed the Court of Appeal’s decision to add penalty assessments to a section 11372.5 levy. (Talibdeen, supra, 27 Cal.4th at pp. 1153-1154, 1157.) Although the issue in Talibdeen was whether a trial court could waive the Penal Code section 1464 and Government Code section 76000 penalties on the crime lab fee (Talibdeen, at p. 1153), in reaching its conclusion the penalty assessments were mandatory--and their omission could be corrected on appeal despite the lack of objection--the Talibdeen court said it was following appellate court decisions, including Martinez and Terrell, that addressed the issue presented here. (Talibdeen, at p. 1157.) As the Alford court found, “Because the holdings of these Court of Appeal decisions constituted the logical predicate to the high court’s ultimate conclusion on the mandatory nature of the penalty as applied to a section 11372.5 assessment, we necessarily conclude they were encompassed within the Talibdeen court’s holding. [Citation.] If the high court had intended to disavow [these] holdings on this issue or suggest it was not reaching the propriety of these rulings, it could have said so. It did not.” (Alford, supra, 12 Cal.App.5th at pp. 974-975, review granted Sept. 13, 2017, 243340.) Accordingly, we conclude the trial court did not err in imposing penalty assessments on the drug program fee.
II
Sentencing Enhancement for Prior Drug-related Conviction
Defendant contends the three-year sentencing enhancement he received in case No. CRF15608 for his prior conviction for violating section 11378 should be stricken pursuant to the recent amendments to section 11370.2. We agree.
At the time of defendant’s conviction, section 11370.2 provided that any person convicted of several enumerated offenses “shall receive, in addition to any other punishment authorized by law, . . . a full separate and consecutive three-year term for each prior felony conviction of, or for each felony conviction of conspiracy to violate, . . . section 11378 . . . .” (Former § 11370.2, subds. (a)-(c), Stats. 1998, ch. 936, § 1, p. 6846; eff. until Jan. 1, 2018, Stats. 2017, ch. 677, § 1.)
Effective January 1, 2018, after defendant’s conviction, the legislature amended section 11370.2 to limit the scope of prior drug-related convictions that could be used to increase a defendant’s prison term to those prior convictions in which a defendant was convicted for using or conspiring to use “a minor in the commission of offenses involving specified controlled substances,” in violation of section 11380. (Legis. Counsel Dig., Sen. Bill No. 180 (2017-2018 Reg. Sess.).)
“Generally, ‘where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed’ if the amended statute takes effect before the judgment of conviction becomes final.” (People v. Eagle (2016) 246 Cal.App.4th 275, 278-279.)
Here, the People concede the recent amendments to section 11370.2 are to be applied retroactively to judgments that are not yet final. The People also concede defendant’s conviction is not final. The People nevertheless argue that because defendant agreed to the sentence he received, he is not entitled to benefit from the recent amendments unless he can show the trial court lacked fundamental jurisdiction to sentence him. We disagree.
This is not, as the People argue, a circumstance where defendant agreed to a specified sentence and now is using the appellate process to “trifle with the courts” and attempt to better his bargain. (See People v. Hester (2000) 22 Cal.4th 290, 295 [defendants who plead guilty and agree to specified sentence are prohibited from arguing on appeal that the sentence was in excess of the trial court’s jurisdiction].) The People rely on cases where the sentence was unauthorized at the time of sentencing and from which the defendant benefited. This reliance is misplaced. Here, defendant agreed to a sentence that was lawful at sentencing, but later became unlawful after a change in the law.
“The general rule in California is that a plea agreement is ‘ “deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.” ’ ” (Doe v. Harris (2013) 57 Cal.4th 64, 73 (Doe); see Harris v. Superior Court (2016) 1 Cal.5th 984, 991 [entering into a plea agreement does not insulate parties “from changes in the law that the Legislature has intended to apply to them”].) Thus, “[i]t follows, also as a general rule, that requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law.” (Id. at pp. 73-74; Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888-889, fn. 10 [requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of their plea agreement].)
We conclude this general rule applies to defendant. Here, nothing in the parties’ plea agreement provided or implied defendant’s admission to being previously convicted of possessing methamphetamine with the intent to sell would be unaffected by subsequent changes in the law. (See Doe, supra, 57 Cal.4th at pp. 71, 73-74 [parties to a plea agreement may expressly or impliedly agree the plea agreement will be unaffected by subsequent changes in the law]; People v. Smith (2014) 227 Cal.App.4th 717, 728-730 [same]; cf. People v. Arata (2007) 151 Cal.App.4th 778, 787-788 [because it found the plea agreement contained an implied promise the defendant’s lewd act conviction would be expunged following his completion of probation, the court refused to apply a subsequent change in the Penal Code disallowing expungement upon completion of probation to the plea agreement].)
Furthermore, this case does not involve a situation where the offense underlying the plea bargain has been decriminalized. Although the amendments to section 11370.2 rendered the conduct to which defendant admitted in case No. CFR15608 no longer punishable as an enhancement, defendant has not gained “total relief from his vulnerability to sentence.” (People v. Collins (1978) 21 Cal.3d 208, 214, 215.) Even without the enhancement for his prior drug-related conviction, defendant still faces a four year prison sentence for his current convictions.
We conclude the amendments to section 11370.2 apply to defendant and the enhancement must be stricken.
DISPOSITION
The three year sentencing enhancement imposed in case No. CFR15608 for defendant’s prior drug-related conviction is stricken. The matter is remanded for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
RAYE, P. J.



/s/
MURRAY, J.