Filed 9/14/18 P. v Moore CA3

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

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For each conviction of enumerated drug offenses, Health and Safety Code section 11372.5[1] 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. This appeal presents the issue of whether these fees are subject to additional penalty assessments under Penal Code section 1464 and Government Code section 76000. The trial court added penalty assessments to the criminal laboratory analysis fee imposed on defendant Zack Uriah Moore III, after his conviction of section 11550, subdivision (a), for being under the influence of a controlled substance. In a published decision, the Appellate Division of the Nevada County Superior Court concluded neither section 11372.5 nor 11372.7 was subject to penalty assessments. (People v. Moore (2015) 236 Cal.App.4th Supp. 10 (Moore).)

On our own motion, we transferred this matter for our review and issued an opinion holding that the levy imposed under section 11372.5 constitutes a fine or penalty that is subject to penalty assessments imposed by Penal Code section 1464 and Government Code section 76000. We also held that the appellate division erroneously construed a silent record as indicating a failure by the trial court to exercise its discretion in considering whether to impose the drug program fee.

The California Supreme Court granted review on the court’s own motion and deemed defendant to be the petitioner. Briefing was deferred. Upon deciding People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz), the Supreme Court transferred the matter back to this court with directions to vacate our decision and to reconsider in light of the guidance provided in Ruiz. Consistent with the Supreme Court’s instructions, we vacated our original opinion and reconsidered the matter. Because the reasoning and result in Ruiz comport with our original opinion, we again reverse the appellate division’s decision and affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL HISTORY

The facts of the underlying offense are not germane to the issue presented on appeal. Thus, it suffices to recount that defendant was convicted of being under the influence of a controlled substance in violation of section 11550, subdivision (a), and trespassing in violation of Penal Code section 602, subdivision (o). (Moore, supra, 236 Cal.App.4th at p. Supp. 13) The trial court granted defendant three years of summary probation with 110 days in custody, and imposed various fines and fees. Included among the fines and fees was a criminal laboratory analysis testing fee to which the trial court added penalty assessments. However, the trial court did not impose a drug program fee under section 11372.7.

Defendant appealed his conviction to the appellate division. The appellate division sua sponte ordered the parties to brief whether the trial court erred in imposing penalty assessments on the criminal laboratory analysis fee. (Moore, supra, 236 Cal.App.4th at p. Supp. 13.) Defendant argued penalty assessments do not apply to the criminal laboratory analysis fee, and the appellate division agreed. (Ibid.) The appellate division’s analysis determined there to be a split of authority between People v. Vega (2005) 130 Cal.App.4th 183 and People v. Sierra (1995) 37 Cal.App.4th 1690. (Moore, supra, 236 Cal.App.4th at p. Supp. 15.) The appellate division dismissed the textual analysis of the applicable statutes advanced by Vega and Sierra as a “mission [that] amounted to a fool’s errand.” (Moore, at p. Supp. 16.)

The appellate division embarked on its own analysis that it tethered to subdivision (l) of Penal Code section 1463. (Moore, supra, at p. Supp. 17.) The appellate division focused on subdivision (l)’s distinction between a “base fine” that is subject to penalty assessments, and a “total fine” to which penalty assessments may not be added again. (Moore, at p. Supp. 17.) Concluding criminal laboratory analysis fees and drug program fees were to “be added to the ‘total fine,’ ” the appellate division held the trial court erred by adding a penalty assessment to the criminal laboratory analysis fee. (Id. at pp. Supp. 17-18.) The appellate division’s disposition affirmed defendant’s convictions, struck the penalty assessments on the criminal laboratory analysis fee, and remanded the matter to the trial court with directions to consider imposing the drug program fee. (Id. at pp. Supp. 18-19.)

On our own motion, we ordered this case transferred and limited the issue for briefing and argument to the question of “whether or not penalty assessments may be properly imposed for fines or fees assessed pursuant to . . . sections 11372.5 and 11372.7.” (Cal. Rules of Court, rule 8.1012(e).) We received a brief from the Attorney General but no brief from defendant’s appointed appellate counsel.

DISCUSSION

I

Review

“ ‘General standards of appellate review apply to appeals transferred from the superior court appellate division for decision in the Court of Appeal.’ ” (Huntington Continental Townhouse Assn., Inc. v. Miner (2014) 230 Cal.App.4th 590, 598, quoting People v. Disandro (2010) 186 Cal.App.4th 593, 599.) Among these standards of review is the familiar axiom that “[w]e review issues of statutory interpretation de novo. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) [¶] The fundamental task of statutory interpretation is to ascertain the Legislature’s intent to effectuate the statute’s purpose. (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) In ascertaining the Legislature’s intent, we first consider the language of the statute itself, giving the words used their ordinary meaning. (Ibid.) The statutory language must be construed in the context of the statute as a whole and the overall statutory scheme, giving significance to every word, phrase, sentence, and part of the statute. (Ibid.) [¶] If the statutory language is unambiguous, the plain meaning controls and consideration of extrinsic sources to determine the Legislature’s intent is unnecessary. (Kavanaugh[] at p. 919.) ‘When the words are susceptible to more than one reasonable interpretation, we consider a variety of extrinsic aids, including the statutory context and the circumstances of the statute’s enactment, in determining legislative intent.’ (Levy v. Superior Court (1995) 10 Cal.4th 578, 582.) We read the statute as a whole to harmonize and give effect to all parts. (Ste. Marie v. Riverside County Regional Park & Open–Space Dist. (2009) 46 Cal.4th 282, 289.)” (Huntington, at pp. 598-599.)

II

Penalty Assessments under Penal Code Section 1464 and Government Code Section 76000

The Attorney General argues the criminal laboratory analysis fee under section 11372.5 and drug program fee under section 11372.7 are subject to penalty assessments. We agree.

As the California Supreme Court recently explained in Ruiz, “Section 11372.5, subdivision (a), establishes a $50 ‘criminal laboratory analysis fee’ for persons ‘convicted of a violation of’ specified statutes relating to drugs, including section 11379. Section 11372.7, subdivision (a), establishes a ‘drug program fee,’ not to exceed $150, for persons ‘convicted of a violation of’ chapter 6 of division 10 of the Health and Safety Code, which includes section 11379.” (Ruiz, supra, 4 Cal.5th at p. 1105.)

As the Ruiz court noted, “the question . . . is whether the fees at issue are part of ‘the punishment’ ‘provided for’ the underlying target felony . . . . [¶] Regarding the term’s ordinary meaning, we have observed that ‘[c]ommonly understood definitions of punishment are intuitive: there is little dispute that additional jail time or extra fines are punishment. [Citation.] However, punishment has historically included a variety of methods limited only by human imagination . . . .’ (People v. McVickers (1992) 4 Cal.4th 81, 84.) Dictionaries have typically defined the term broadly to include any ‘ “pain, suffering, loss, confinement or other penalty inflicted on a person for a crime or offense, by the authority to which the offender is subject.” ’ (Gunning v. People (1899) 86 Ill. App. 174, 178.) Similarly, ‘[a]s a legal term of art, “punishment” has always meant a “fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him [or her].” ’ (Helling v. McKinney (1993) 509 U.S. 25, 38, 125 L.Ed.2d 22 (dis. opn. of Thomas, J.), quoting Black’s Law Dict. (6th ed. 1990) p. 1234.)” (Ruiz, supra, 4 Cal.5th at p. 1107.)

The Supreme Court considered the language of section 11372.5 as a whole and concluded it established the criminal laboratory analysis fee as a punishment. “After setting forth the ‘criminal laboratory analysis fee’ in the first sentence of section 11372.5, subdivision (a), the Legislature specified in the very next sentence that ‘[t]he court shall increase the total fine necessary to include this increment.’ (Italics added.) The next paragraph of the subdivision provides that, as to specified offenses ‘for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law.’ (Ibid., italics added.) Reading the first sentence of the subdivision in the context of the rest of the subdivision, it appears that the Legislature understood and intended ‘the criminal laboratory analysis fee’ to be a ‘fine’ and a ‘penalty.’ (Ibid.) . . . This language is significant because ‘fines’ and ‘penalties’ are commonly understood to be ‘punishment.’ ” (Ruiz, supra, 4 Cal.5th at pp. 1109-1110.)

The Ruiz court then surveyed the legislative history of sections 11372.5 and 11372.7. (Ruiz, supra, 4 Cal.5th at pp. 1114-1118.) This legislative history, the Supreme Court held, indicated the levies imposed by sections 11372.5 and 11372.7 constituted fines. “[A] finding that the Legislature intended a particular sanction to constitute punishment ‘ “ends the inquiry.” ’ ([People v.] Mosley [2015)] 60 Cal.4th [1044,] 1063.) Because, for reasons explained above, it is clear the Legislature intended the fees at issue here to be punishment, it is ‘unnecessary to pursue any additional inquiry into their underlying character.’ (People v. Hanson (2000) 23 Cal.4th 355, 361 [finding, for purposes of applying the double jeopardy clause, that Legislature intended restitution fines to be ‘punishment’].)” (Ruiz, supra, 4 Cal.5th at p. 1122.)

With the benefit of the guidance of Ruiz, 4 Cal.5th 1100, we conclude the criminal laboratory analysis fee constitutes a fine or penalty for purposes of the penalty assessments imposed by Penal Code section 1464 and Government Code section 76000. Consequently, the trial court properly imposed the penalty assessments on the criminal laboratory analysis fee it ordered defendant to pay.

B.

Drug Program Fee

Based on the similarity in statutory language used for the criminal laboratory analysis fee under section 11372.5 and the drug program fee under section 11372.7, the appellate division concluded the penalty assessments imposed by Penal Code section 1464 and Government Code section 76000 do not apply to the drug program fee. (Moore, supra, 236 Cal.App.4th at pp. Supp. 15, 17-18.) However, as the appellate division noted, the trial court did not actually impose a drug program fee and the record is silent as to why the drug program fee was not included. (Id. at p. Supp. 15, fn. 3.) The appellate division remanded the matter to the trial court with instructions to consider imposing the drug program fee (but without adding penalty assessments). (Id. at pp. Supp. 18-19) Despite the similarity of language employed in imposing the criminal laboratory analysis fee and drug program fee under sections 11372.5 and 11372.7, we do not have occasion to consider whether section 11372.7 imposes a fine or penalty unless defendant in this case is subject to the drug program fee.

Unlike the criminal laboratory analysis fee that is mandatory regardless of a defendant’s ability to pay, the drug program fee may be imposed only if the trial court finds the defendant has an ability to pay. “The drug program fee is mandatory, provided the trial court determines the defendant has the ability to pay the fee. (. . . § 11372.7, subd. (b); People v. Clark (1992) 7 Cal.App.4th 1041, 1050.) Subdivision (b) of section 11372.7 . . . provides: ‘The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. If the court determines that the person has the ability to pay, the court may set the amount to be paid and order the person to pay that sum to the county in a manner that the court believes is reasonable and compatible with the person’s financial ability. In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee.’ (Italics added.) No express finding as to a defendant’s ability or inability to pay is required. (. . . § 11372.7, subd. (b); People v. Staley (1992) 10 Cal.App.4th 782, 785.)” (Martinez, supra, 65 Cal.App.4th at p. 1516.)

Because no express finding on ability to pay is required, the appellate division erred in remanding the matter for the trial court to make an express ability to pay determination. (Moore, supra, 236 Cal.App.4th at p. Supp. 18.) Thus, the lack of a drug program fee does not result in an unauthorized judgment that requires reversal and remand on a silent record. As the Martinez court explained, “ ‘[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.]’ Under . . . section 11372.7, subdivision (b), a trial court may, without expressly so stating, and taking into account any fine or restitution amount imposed, conclude that a defendant does not have the ability to pay a drug program fee. . . . [O]n a silent record, we presume the trial court resolved those issues in favor of not imposing the fee. . . . We conclude that because a trial court must determine whether the defendant has the ability to pay a drug program fee (. . . § 11372.7), and is not required to state its finding on the record, a judgment that fails to impose the fee is not a legally unauthorized judgment.” (Martinez, supra, 65 Cal.App.4th 1511, 1516-1518.)

The appellate division erred in remanding this case to the trial court to make an ability to pay determination for the drug program fee. Because defendant is not subject to the drug program fee, we do not reach the issue of whether it is subject to the penalty assessments of Penal Code section 1464 and Government Code section 76000.

DISPOSITION

The trial court’s judgment is affirmed, and the appellate division’s decision in People v. Moore, supra, 236 Cal.App.4th Supp. 10 is reversed.

/s/

HOCH, J.

We concur:

/s/

MAURO, Acting P. J.

/s/

MURRAY, J.