Filed 10/2/18 P. v. Carter CA6

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. KELLY TERINA CARTER, Defendant and Appellant.

H043251 (Santa Clara County Super. Ct. No. C1518626)

Defendant Kelly Terina Carter appeals following her no contest pleas to unauthorized use of a vehicle and possessing drug paraphernalia. Defendant challenges certain fees imposed in connection with her grant of felony probation. We affirmed the judgment with modifications, and defendant petitioned for review. The Supreme Court has transferred the matter with instructions to consider our previous decision in this appeal in light of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). Consistent with Ruiz, we will again affirm the judgment with modifications.

• I. Trial Court Proceedings

Because the facts of defendant’s convictions do not affect the issues in this appeal, we summarize only the procedural history of the case. Defendant was charged with the unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)) and misdemeanor possessing drug paraphernalia (Health & Saf. Code, § 11364; unspecified references are to this Code). Defendant pleaded no contest to both counts.

The court suspended imposition of sentence and placed defendant on three years of formal probation with a condition that she serve 90 days in county jail. The court ordered defendant to pay several fines and fees, including: a $50 monthly probation supervision fee (Pen. Code, § 1203.1b); a $259.50 criminal justice administration fee (booking fee) (Gov. Code, §§ 29550, 29550.1, 29550.2); a $50 criminal laboratory analysis fee (§ 11372.5, subd. (a)) with $155 in penalty assessments; a $150 drug program fee (§ 11372.7, subd. (a)) with $465 in penalty assessments; and a $4 emergency medical air transportation fee (Gov. Code, § 76000.10).

• II. Discussion

Defendant argues the booking fee must be stricken because the record does not show the identity of the arresting agency, and that the penalty assessments added to the crime lab fee and drug program fee must be stricken because the purpose of those underlying fees is not to punish but to raise revenue. Defendant identifies other errors with certain fines and fees that the People have conceded. This appeal is proper despite raising solely fine and fee issues because defendant first sought to correct them in the trial court. (Pen. Code, § 1237.2.)

1. Booking Fee

Defendant argues that the $259.50 booking fee must be stricken for lack of evidence of which agency arrested defendant and the amount of its actual administrative costs of booking. The waived referral summary probation report recommended a “$259.50 Criminal Justice Administration fee to the County of Santa Clara be imposed pursuant to Government Code [sections] 29550, 29550.1 and 29550.2,” which supports a finding that Santa Clara County was the arresting agency. Documents submitted by the People (of which we took judicial notice by separate order) show that the booking fee amount of $259.50 is based on the county’s actual costs as determined by the Santa Clara County Board of Supervisors.

2. Penalty Assessments Apply to Sections 11372.5 & 11372.7

The Supreme Court’s reasoning in Ruiz forecloses the argument defendant raised in her original briefing in this appeal, and she has not filed a supplemental brief after the case was transferred from the Supreme Court.

In Ruiz, the defendant pleaded no contest to conspiring to transport a controlled substance (§ 11379, subd. (a)). (Ruiz, supra, 4 Cal.5th at p. 1104.) As part of his sentence, the trial court imposed a criminal laboratory analysis fee (§ 11372.5, subd. (a)) and a drug program fee (§ 11372.7, subd. (a)). Ruiz argued that the trial court could not impose those fees because they applied only to certain drug crimes and he was convicted merely of conspiring to violate one of those enumerated crimes. (Ruiz, at p. 1105.) The Supreme Court focused on Penal Code section 182, subdivision (a), “which states in relevant part that persons convicted of conspiring to commit a felony ‘shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony.’ ” (Ruiz, at p. 1105.) The court identified the dispositive issue as whether the fees at issue constituted punishment such that they would be “part of ‘the punishment’ ‘provided for’ the underlying target felony.” (Id. at p. 1107.) The court analyzed the statutory language, reviewed relevant legislative history, and concluded “it is clear the Legislature intended the fees at issue here to be punishment.” (Id. at p. 1122.) As relevant here, the Ruiz court also disapproved a line of appellate decisions which found the fees at issue did not constitute punishment and therefore were not subject to penalty assessments, stating those decisions “broke with settled law holding to the contrary.” (Id. at p. 1112, fn. 5, disapproving People v. Watts (2016) 2 Cal.App.5th 223.)

Defendant argued in her original briefing that the fees under sections 11372.5 and 11372.7 were not punishment and therefore not subject to penalty assessments (e.g., Pen. Code, § 1464, subd. (a)(1)). Ruiz disapproved the decisions defendant cited in her original briefing and unequivocally determined that the fees under sections 11372.5 and 11372.7 are punishment subject to penalty assessments. (Ruiz, supra, 4 Cal.5th at p. 1122.) Consistent with Ruiz (and our original opinion in this case), we confirm that the trial court did not err in imposing penalty assessments on the section 11372.5 and section 11372.7 fees. The conclusion in Ruiz that the fees are punitive also forecloses defendant’s argument that they could not be ordered as conditions of probation.

3. Conceded Errors

Defendant makes three additional arguments conceded by the People. The parties agree the $50 monthly probation supervision fee should be reduced to $40 per month, because the minute order is inconsistent with the court’s oral pronouncement. The parties agree the $4 emergency medical air transportation was incorrectly ordered as a condition of probation. (Citing People v. Kim (2011) 193 Cal.App.4th 836, 842–843.) And the parties agree the penalty assessments were calculated incorrectly and must be reduced. Instead of calculating the Government Code section 76000, subdivision (e) assessment at the correct Santa Clara County rate of 55 percent ($5.50 for every $10), the trial court applied a 70 percent rate. Applying the correct formula will reduce the total penalty assessments on the Health and Safety Code section 11372.5 crime lab fee to $147.50 and on the Health and Safety Code section 11372.7 drug program fee to $442.50.

• III. Disposition

The judgment is modified as follows: The probation supervision fee is reduced to $40 per month, the penalty assessments on the crime lab fee are reduced to $147.50, the penalty assessments on the drug program fee are reduced to $442.50, and the $4 emergency air transportation fee is removed as a condition of probation and added to the fees imposed by separate order. The superior court is directed to prepare a new minute order reflecting those modifications. As so modified, the judgment is affirmed.