Opinion
D069613
04-12-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVEN M. BEHNKE, Defendant and Appellant.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen A. Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD260344) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed as modified. Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen A. Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION AND PROCEDURAL BACKGROUND
A jury found Steven M. Behnke guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 1), unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)) (count 2), and possession of cocaine (§ 11350, subd. (a)) (count 3). After the jury returned its verdicts, Behnke admitted that he had suffered a prior conviction for a violation of section 11378, and a prior conviction for a violation of section 11351. Based on these admissions, the trial court found that Behnke had suffered two prior drug-related convictions within the meaning of section 11370.2, subdivision (c). The trial court sentenced Behnke to prison for a total term of three years and eight months, consisting of the upper term of three years on count 1, plus a consecutive eight-month sentence on count 2. In imposing the upper term on count 1, the court relied in part on Behnke's prior convictions. The trial court sentenced Behnke to time served on count 3, and stayed the imposition of the sentences on the two prior drug-conviction enhancements (§ 11370.2, subd. (c)). The trial court also imposed a criminal laboratory analysis fine and related penalty assessments totaling $205.
All subsequent statutory references are to the Health and Safety Code, unless otherwise specified.
On appeal, Behnke contends that because the trial court relied on his prior convictions as a basis for imposing an upper term sentence on count 1, the trial court erred in staying rather than striking the enhancements premised on the prior convictions. The People concede the error. We agree that the trial court erred in staying, rather than striking, the enhancements, and modify Behnke's sentence accordingly.
Behnke also contends that the trial court erroneously imposed a penalty assessment on a crime laboratory fee under section 11372.5, subdivision (a). Behnke maintains that the penalty assessment was improper because penalty assessments may be applied only to fines, and a criminal laboratory fee under section 11372.5, subdivision (a) is a fee and not a fine. We reject this argument. Accordingly, we modify Behnke's sentence and affirm the judgment as so modified.
II.
DISCUSSION
A. The trial court erred in staying rather than striking the prior drug-conviction enhancements
Behnke claims that the trial court erred in staying, rather than striking, the two prior drug-conviction enhancements (§ 11370.2, subd. (c)). The People concede the error.
1. Factual and procedural background
The probation officer filed a probation report recommending that the court impose a term of nine years, consisting of the upper term of three years on count 1 and two consecutive three-year enhancements pursuant to section 11370.2, subdivision (c).
At sentencing, the prosecutor requested that the court impose an aggregate sentence of three years and eight months, comprised of a sentence of the upper term of three years on count 1 and a consecutive term of eight months on count 2. The prosecutor stated, "I . . . [am] asking for three years on Count 1, and the reason we're asking for the upper term, as the Court knows, that does involve striking two three-year priors . . . ." (Italics added.)
In sentencing Behnke, the trial court stated that it had considered the probation report, but found that the imposition of a nine-year sentence would be "totally unreasonable." The court then stated, "[S]o [Mr. Prosecutor], I do appreciate that [this is] the first time I've actually had a prosecutor underbid the probation officer, and I appreciate that because you are intimately familiar with the case . . . ." The following colloquy then occurred:
"[The court]: So based upon the probation report and a statement in aggravation, the Court is going to impose the upper term on Count 1, which is . . . Section 11378, and I do that based upon the fact that his statements in aggravation [sic], the Court relies on [California Rules of Court,] Rule 4.421(b)(2), the defendant's prior convictions are numerous, and [California Rules of Court,] Rule 4.4[21](b)(3), he has served a prior prison term.Thereafter, the court stated that it would "use [its] discretion," to stay the enhancements under section 11370.2, subdivision (c).
"The Court is going to impose one-third the midterm as to Count 2, and sentence eight months consecutive to that. With the allegation under . . . [section 11370.2 subdivision (c)], do I strike that or do I just - are you asking me to strike that?
"[The prosecutor]: You stay the punishment, your Honor." (Italics added.)
2. Governing law
Section 11370.2, subdivision (c) provides in relevant part:
"Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 . . . shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior
felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, . . . [or] 11378 . . . whether or not the prior conviction resulted in a term of imprisonment."
" 'Unless a statute says otherwise, an enhancement may be imposed or stricken, but . . . may not be stayed; to do so is an illegal sentence.' " (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) A trial court retains discretion pursuant to Penal Code section 1385 to strike an enhancement "unless there is 'clear language' evincing a legislative intention to deny a trial court the authority to dismiss a particular enhancement." (People v. Thomas (2013) 214 Cal.App.4th 636, 641 (Thomas).) There is no statutory language restricting a trial court's authority to strike the enhancement contained in section 11370.2, subdivision (c). Accordingly, a trial court retains discretion to strike a section 11370.2, subdivision (c) enhancement. (See Thomas, supra, at p. 641.)
Penal Code section 1170, subdivision (b) provides in relevant part, "[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law."
California Rules of Court, rule 4.420(c), provides in relevant part:
"To comply with [Penal Code section 1170, subdivision (b)], a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term."
3. Application
The People concede that the trial court erred in staying rather than striking the section 11370.2, subdivision (c) enhancements. From the record quoted above, it is clear that the trial court did not intend to impose the punishment mandated by the enhancements, and that the court intended to impose an aggregate sentence of three years and eight months, as the prosecutor requested. The court was merely uncertain as to the method by which to accomplish this goal, namely, whether to strike or stay the enhancements. The law cited above makes clear that the trial court's intended sentence would properly be achieved by striking, rather than staying, the section 11370.2, subdivision (c) enhancements.
While the People suggest that we should remand the matter to the trial court for resentencing, when a trial court's intention is clear, we "need not remand for resentencing, but can modify the judgment to reflect the intent of the trial court." (People v. Gutierrez (1996) 46 Cal.App.4th 804, 816; see also Pen. Code, § 1260.) A remand would "waste judicial resources on an unnecessary proceeding." (People v. Kelly (1985) 163 Cal.App.3d 619, 622.) We may give effect to the trial court's intention by modifying Behnke's sentence to strike the two section 11370.2, subdivision (c) enhancements.
We also note that remand is not required because a trial court is not allowed to increase a defendant's aggregate sentence on remand. On remand after a sentencing error, a trial court may not impose an aggregate sentence that exceeds the original sentence. (People v. Castaneda (1999) 75 Cal.App.4th 611, 613-614.)
Accordingly, we conclude that the trial court erred in staying, rather than striking, the two prior drug-conviction enhancements (§ 11370.2, subdivision (c)) and that Behnke's sentence shall be modified to strike the enhancements. B. A criminal laboratory fine imposed under the second paragraph of section 11372 .5 is subject to penalty assessments
Behnke contends that the trial court erroneously imposed penalty assessments of $105 on the $100 criminal laboratory monetary charges (§ 11372.5) that the court imposed based upon Behnke's two drug-related convictions, possession of methamphetamine for sale (§ 11378) (count 1) and possession of cocaine (§ 11350, subd. (a)) (count 3). Behnke maintains that the penalty assessments were improper because penalty assessments may be applied only to fines, and a criminal laboratory monetary charge under section 11372.5, subdivision (a) is a fee and not a fine.
We use the term monetary charge here as a generic term meaning either fee or fine. (See People v. Watts (2016) 2 Cal.App.5th 223, 227 (Watts) [describing fines, fees, and penalty assessments as "monetary charges"].)
1. Governing law
Section 11372.5, subdivision (a) provides in relevant part:
"Every person who is convicted of a violation of Section 11350 . . . [or] 11378, . . . shall pay a criminal laboratory analysis 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."
In Watts, the Court of Appeal outlined "three different categories of monetary charges that may be imposed on a criminal defendant." (Watts, supra, 2 Cal.App.5th at p. 227.)
"The first category of monetary charges that may be imposed includes charges to punish the defendant for the crime. . . . [¶] The second category of charges that may be imposed includes charges to cover a particular governmental program or administrative cost. . . . [¶] The third category of charges includes penalty assessments, which, when applicable, inflate the total sum imposed on the defendant by increasing certain charges by percentage increments." (Id. at p. 228.)
Penalty assessments inflate only fines, penalties, or forfeitures, and do not inflate fees. (Watts, supra, 2 Cal.App.5th at p. 228.)
The Watts court concluded, contrary to the weight of authority (see, e.g., People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1252; People v. Terrell (1999) 69 Cal.App.4th 1246, 1257; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522), that a monetary charge imposed pursuant to section 11372.5 is a fee rather than a fine, and thus, is not subject to penalty assessments. (Watts, supra, 2 Cal.App.5th at p. 231.) In reaching this conclusion, the Watts court noted that section 11372.5 is textually inconsistent. (See Watts, supra, at p. 231 ["The first paragraph of the provision characterizes the crime-lab fee as a 'criminal laboratory analysis fee,' but the second paragraph characterizes the $50 charge as a 'fine.' (§ 11372.5(a), italics added.)"].) The Watts court also acknowledged that "the second paragraph [of section 11372.5, subdivision (a)] establishes that in the case of an offense 'for which a fine is not authorized by other provisions of law,' the crime-lab fee acts as a fine and is, in turn, subject to penalty assessments." (Id. at p. 235, italics added.) However, the Watts court noted that Penal Code section 672 provides that "a trial court may impose a fine of up to $10,000 for any felony or up to $1,000 for any misdemeanor 'punishable by imprisonment in any jail or prison . . . in relation to which no fine is [otherwise] prescribed,' " (Watts, at p. 236, quoting Pen. Code, § 672.) Thus, according to the Watts court, the "second paragraph of section 11372.5(a) has no current application and, in that sense, is surplusage." (Watts, at p. 236.)
We note that the second sentence of the first paragraph of section 11372.5, subdivision (a) also states, "The court shall increase the total fine necessary to include this increment." (Italics added.) This language is in tension with the Legislature's use of the term "fee" in the first sentence of the first paragraph. (§ 11372.5, subd. (a).)
The Supreme Court is currently considering a related issue in People v. Ruiz, review granted on specified issues September 14, 2016, S235556 ["May a trial court properly impose a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (Heath & Saf. Code, § 11372.7, subd. (a)) based on a defendant's conviction for conspiracy to commit certain drug offenses?"]. --------
2. Application
We agree with the Watts court that the text of section 11372.5, subdivision (a) is ambiguous with respect to whether the Legislature intended for a monetary charge imposed pursuant to the statute to constitute a fee or a fine. However, in light of the "interpretative difficulty" (Watts, supra, 2 Cal.App.5th at p. 237), posed by the Watts court's interpretation of the second paragraph in section 11372.5 as "surplusage" (Watts, supra, at p. 236), as well as the improbability that the Legislature intended for the same monetary charge to be a fee if imposed pursuant to the first paragraph of section 11372.5, subdivision (a) but a fine if imposed pursuant to the second, we follow the weight of authority and conclude that the criminal laboratory monetary charge specified in section 11372.5, subdivision (a) is best characterized as a fine, rather than a fee. Therefore, a criminal laboratory fine imposed pursuant to section 11372.5, subdivision (a) is subject to penalty assessments.
Accordingly, we conclude that the trial court did not err in imposing penalty assessments premised on the criminal laboratory fines imposed pursuant to section 11372.5, subdivision (a).
III.
DISPOSITION
With respect to count 1, the judgment is modified to strike the enhancements under section 11370.2, subdivision (c). The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
AARON, J. WE CONCUR: MCCONNELL, P. J. O'ROURKE, J.