Filed 10/17/18 P. v. Lopez CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE CARLOS LOPEZ,
Defendant and Appellant.
|
F073203
(Super. Ct. No. BF160722A)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.
Kelly C. Martin and Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Jose Carlos Lopez contended on appeal that the trial court erred in imposing penalty assessments attached to a criminal laboratory analysis fee (lab fee) and a drug program fee (program fee). In response to defendant’s letter, the trial court struck the lab fee penalty assessment, and defendant asked that we, likewise, strike the program fee penalty assessment. Disagreeing with defendant’s view of the law, we reinstated the lab fee penalty assessment and affirmed the judgment as modified.
After we filed our opinion, the Supreme Court granted review and held the case pending resolution of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). After deciding Ruiz, the court remanded this case to us with directions to vacate our decision and reconsider the matter in light of Ruiz. We have reconsidered our opinion and find it to be consistent with the holding and analysis in Ruiz. We will again reinstate the lab fee penalty assessment and affirm the judgment as modified.
PROCEDURAL SUMMARY
On September 25, 2015, defendant pled no contest to transportation for sale of 14.25 grams or more of heroin (Health & Saf. Code, § 11352, subd. (a);[1] Pen. Code, § 1203.07, subd. (a)(1)); count 2). He admitted having suffered two prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)(1)) and having served one prior prison term (Pen. Code, § 667.5, subd. (a)).
On December 14, 2015, the trial court sentenced defendant to seven years in prison. The court ordered defendant to register as a narcotics offender (§ 11590). The court imposed various fines and fees, including a $50 lab fee (§ 11372.5, subd. (a) (hereafter § 11372.5(a)),[2] plus $155 in related penalty assessments, and a $100 program fee (§ 11372.7, subd. (a) (hereafter § 11372.7(a)),[3] plus $310 in related penalty assessments.[4]
On February 10, 2016, defendant filed a notice of appeal.
On November 16, 2016, defendant filed a letter with the trial court pursuant to People v. Fares (1993) 16 Cal.App.4th 954 and People v. Clavel (2002) 103 Cal.App.4th 516, requesting that the court strike the penalty assessments attached to the lab fee and the program fee on the ground that the fees were not penalties to which the assessments could attach. On November 18, 2016, the court agreed with defendant’s argument under People v. Watts (2016) 2 Cal.App.5th 223 (Watts),[5] and vacated the $155 lab fee (§ 11372.5(a)) penalty assessment, but declined to vacate the $310 program fee (§ 11372.7(a)) penalty assessment because it was not addressed in Watts.
DISCUSSION
Penalty assessments apply to any “fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses” and increase such fines, penalties, or forfeitures by a specified amount. (E.g., Pen. Code, § 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).)
Defendant contended we should vacate the penalty assessments attached to the program fee (§ 11372.7(a)) because the lab and program fees are not fines, penalties, or forfeitures, and thus they do not trigger any penalty assessments. Defendant relied on Watts, supra, 2 Cal.App.5th 223 and People v. Vega (2005) 130 Cal.App.4th 183,[6] and he urged us to depart from our decision in People v. Sierra (1995) 37 Cal.App.4th 1690. The People responded that defendant forfeited this issue, and that both penalty assessments were, nevertheless, proper and mandatory.
The Supreme Court resolved this issue in Ruiz, holding that both the lab fee imposed pursuant to section 11372.5 and the drug program fee imposed pursuant to section 11372.7 constitute punishment. (Ruiz, supra, 4 Cal.5th at p. 1122.) Accordingly, they are subject to penalty assessments, and in this case, the penalty assessments on both the program fee and the lab fee were properly imposed.
DISPOSITION
The lab fee (Health & Saf. Code, § 11372.5, subd. (a)) penalty assessment of $155 is reinstated. As so modified, the judgment (including the program fee (Health & Saf. Code, § 11372.7, subd. (a)) penalty assessment of $310) is affirmed. The trial court is directed to amend the abstract of judgment and to forward certified copies to the appropriate entities.
* Before, Levy Acting P.J., Peña, J. and Meehan J.
[1] All statutory references are to the Health and Safety Code unless otherwise noted.
[2] Section 11372.5(a) provides: “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 [lab fee] in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment. [¶] With respect to those offenses specified in this subdivision 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.”
[3] Section 11372.7(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.”
[4] The probation officer’s report itemized the components of both sets of penalty assessments.
[5] Watts was disapproved by the Supreme Court in Ruiz, supra, 4 Cal.5th at page 1122, footnote 8.
[6] People v. Vega, supra, 130 Cal.App.4th 183 was disapproved by the Supreme Court in Ruiz, supra, 4 Cal.5th at page 1122, footnote 8.
