Filed 8/27/18 P. v. Alford CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed.

Michelle C. Rogers, 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, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

Luis Alford pled guilty to possessing methamphetamine for sale. (Health & Saf. Code,[1] § 11378.) The court sentenced Alford to eight years in custody, plus three years four months on mandatory supervision. The court also imposed various fines and assessments. Alford's appellate challenge concerns the court's imposition of monetary penalties (Pen. Code, § 1464; Gov. Code, § 76000, together "penalty statutes") based on two statutory assessments: (1) a criminal laboratory analysis fee (laboratory fee) (§ 11372.5); and (2) a drug program fee (§ 11372.7).

Alford acknowledges the court properly assessed him for the laboratory and drug program fees, but contends the court erred in concluding the penalty statutes applied to require additional penalties on top of those fees. When we initially filed our opinion, there was a split in authority in the Courts of Appeal on this precise issue. (See People v. Watts (2016) 2 Cal.App.5th 223, 229-237 [imposition of additional penalty not permitted] (Watts); People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1696 [additional penalty upheld on drug program fee]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [additional penalty required on laboratory fee].) After reviewing these decisions, the applicable statutes, and prior California Supreme Court authority, we held the court's assessment of the additional penalties were proper. We disagreed with the Watts court's conclusion on this issue.

Alford then petitioned for review to the California Supreme Court. The high court granted and held Alford's petition pending its decision in People v. Ruiz, which involved a similar but not identical issue. (People v. Ruiz, S235556, review granted Sept. 14, 2016.) Ruiz concerned whether it was proper to impose laboratory and drug program fees under sections 11372.5 and 11372.7 for a conviction of conspiracy to transport a controlled substance.

In May 2018, the high court filed Ruiz, holding that the laboratory and drug program fees were properly imposed for a conspiracy to commit the underlying offense. (People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz).) The court reasoned that in enacting sections 11372.5 and 11372.7, the Legislature intended the laboratory and drug program fees to constitute punishment and a conspiracy is " 'punishable' " in the same manner as the underlying felony. (Ruiz, at pp. 1104, 1109-1111.) The court expressly disapproved Watts's conclusion that the assessments under sections 11372.5 and 11372.7 do not constitute punishment. (Ruiz, at pp. 1112-1113, 1122, fn. 8.) But the Ruiz court declined to decide the (unbriefed) issue whether the laboratory and drug program fees are specifically subject to assessments under the penalty statutes. (Id. at p. 1122.)

The California Supreme Court then transferred this case with directions to vacate our decision and to reconsider the cause in light of Ruiz. We provided both parties the opportunity to file supplemental briefs, but neither party filed a responsive brief.

Based on Ruiz's holding and reasoning, we adhere to our prior conclusion. The additional penalty assessments were properly imposed. Accordingly, we affirm the judgment, but remand for the court to correct a clerical error to itemize the fines and penalties in the abstract of judgment.

RELEVANT FACTS AND PROCEDURE

As the factual basis for his plea, Alford admitted he possessed methamphetamine for sale and distribution, in an amount greater than 10 kilograms. The court imposed various fines and assessments, including a $205 laboratory fee under section 11372.5, subdivision (a), and a $615 drug program fee under section 11372.7, subdivision (a).

Alford moved to strike portions of these two assessments. He noted the statutes limit the laboratory fee to $50 and drug program fee to $150 (§§ 11372.5, 11372.7), and argued the court erred in adding the Penal Code section 1464 and Government Code section 76000 penalties to these fees. Alford relied primarily on Watts, supra, 2 Cal.App.5th 223.

The trial court denied the motion. On appeal, Alford reasserts his challenge to the penalty assessments. He argues the court erred in adding $155 to the laboratory fee and $465 to the drug program fee.

DISCUSSION

I. Assessments Under the Penalty Statutes

A. Applicable Law

The penalty statutes (Pen. Code, § 1464; Gov. Code, § 76000) mandate that a court impose a penalty assessment "upon every fine, penalty, or forfeiture imposed and collected . . . for all criminal offenses" with certain exceptions not applicable here.[2] (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154.)

Alford contends the court erred in adding these statutory penalties to the amounts assessed under sections 11372.5 and 11372.7 because these latter code sections do not impose a "fine" or "penalty" within the meaning of the penalty statutes, and instead levy only a "fee." The Attorney General counters that the court properly added the penalty assessments "because those two fees are actually fines." The resolution of this dispute depends on the meaning of sections 11372.5 and 11372.7. Did the Legislature intend these statutes to impose administrative fees, or did it intend the statutes to impose punitive fines or penalties?

The Ruiz court addressed this precise issue. (Ruiz, supra, 4 Cal.5th at pp. 1105-1122.) In reviewing whether it was appropriate to impose laboratory and drug program fees for a conviction of conspiracy to transport a controlled substance, the court found the answer to this question depended on whether the fees under sections 11372.5 and 11372.7 were "part of 'the punishment' 'provided for' the underlying target felony . . . ." (Ruiz, at p. 1107, italics added.) This issue in turn depended on the meaning of these two statutes. The high court thus examined in great detail the statutory language of sections 11372.5 and 11372.7, and the legislative intent underlying these statutes. (Ruiz, at pp. 1109-1118.) Based on this exhaustive analysis, the court concluded the Legislature intended the section 11372.5 and 11372.7 assessments to constitute punishment, and not administrative fees. (Ruiz, at pp. 1109-1118.)

In reaching this conclusion, the California Supreme Court disapproved the reasoning of several Court of Appeal decisions. (Ruiz, supra, 4 Cal.5th at pp. 1112-1113, 1122, fn. 8; see People v. Martinez (2017) 15 Cal.App.5th 659; People v. Webb (2017) 13 Cal.App.5th 486; Watts, supra, 2 Cal.App.5th 223; People v. Vega (2005) 130 Cal.App.4th 183.) Three of those decisions concerned the precise issue in this case: whether the penalty statutes apply to require an additional penalty on top of the section 11372.5 and section 11372.7 fees. (Martinez, at pp. 662-669; Webb, at pp. 497-499; Watts, at pp. 227-237.) After examining the statutory language and legislative "evolution" of section 11372.5 and 11372.7, the Watts court concluded that the Legislature intended the sections 11372.5 and 11372.7 assessments to be administrative fees, rather than punitive measures, and thus held the penalty statutes did not apply. (Watts, at pp. 227-237.) The Martinez and Webb courts adopted Watts's analysis and reached the same conclusion. (Martinez, at pp. 662-669; Webb, at pp. 497-499.) The Ruiz court disagreed, expressly rejecting Watts's reasoning that the criminal laboratory fee " 'is by its nature not punishment and therefore not a "fine" or "penalty" . . . .' " (Ruiz, at p. 1113). The Ruiz court made clear its view that Watts's interpretation of the meaning of sections 11372.5 and 11372.7 was inconsistent with the language and legislative history of these statutes. (Ruiz, at pp. 1112-1113.)

B. Analysis

In his appellate briefs (before Ruiz was filed) Alford relied on Watts to contend the court erred in adding the assessments under the penalty statutes to the laboratory and drug program fees because these fees are administrative, rather than punitive, measures. Although we expressly provided Alford the opportunity to file a brief after Ruiz was final and transferred to this court, he did not do so.

Alford's appellate contention is without merit. Ruiz found that the laboratory fee and drug program fee were penalties, and not administrative fees. (Ruiz, supra, 4 Cal.5th at pp. 1105-1122.) This determination resolves the issue here. The assessments under sections 11372.5 and 11372.7 fall within the meaning of the penalty statutes' "fine, penalty, or forfeiture" language and therefore were properly imposed. (Pen. Code, § 1464, subd. (a)(1); Gov. Code § 76000, subd. (a).) After Ruiz, Watts is no longer viable authority on this issue.

II. Abstract of Judgment Must Be Modified

Generally, an abstract of judgment must identify the amount and statutory grounds for each base fine plus the amount and statutory basis for each penalty assessment. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) This itemization allows the Department of Corrections and Rehabilitation to "fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency." (Ibid.)

The trial court did not itemize the fines and penalty assessments. The Attorney General agrees this case should be remanded for the court to modify the abstract of judgment to reflect the itemization of the fines and fees. (See People v. High, supra, 119 Cal.App.4th at p. 1200.) We agree and remand on this limited basis.

DISPOSITION

The matter is remanded with directions to the trial court to prepare an amended abstract of judgment that itemizes, with the statutory grounds, all imposed fines, fees, and penalties. The judgment is affirmed in all other respects. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.