Opinion
C081960
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. KELLY DEANNE BELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF15-6101)
Defendant Kelly Deanne Bell pleaded no contest to multiple drug-related charges. She also admitted allegations she served three prior terms in prison. The trial court struck one of the prior prison term enhancements and sentenced defendant to an aggregate term of five years to be served as a split sentence: 913 days in custody and 912 days on mandatory supervision.
Defendant raises three claims on appeal: the trial court erred in (1) failing to strike the remaining prior prison term enhancements; (2) imposing penalty assessments on the laboratory fee imposed pursuant to Health and Safety Code section 11372.5, subdivision (a); and (3) imposing a term of probation that is unconstitutionally vague. We accept the People's concession that defendant's prior prison term enhancements must be stricken, but conclude defendant's remaining claims lack merit. We will modify the judgment, affirm the judgment as modified, and direct the trial court to amend the abstract of judgment.
We dispense with a recitation of background facts because they are not relevant to the claims raised on appeal.
DISCUSSION
A. Sentencing Enhancements
Defendant contends that because her underlying felony convictions were redesignated as misdemeanors under Proposition 47 before they were adjudicated here as prior prison term enhancements, the trial court should have granted her motion to strike those enhancements. Defendant relies on this court's recently published decision in People v. Kindall (2016) 6 Cal.App.5th 1199 (Kindall), to support her argument.
In Kindall, we concluded that under Proposition 47, once a felony conviction is reduced to a misdemeanor, it is a misdemeanor for all purposes going forward. (Id. at pp. 1204-1205.) Accordingly, if a felony conviction is reduced to a misdemeanor before it is adjudicated as a prior prison term, a defendant cannot be subject to additional punishment for that prior conviction. (Ibid.)
The People concede that Kindall applies to the circumstances presented here. We accept the People's concession. Defendant's prior felony convictions were reduced to misdemeanors in January 2015. She pleaded no contest to the current offenses in February 2016, preserving the right to litigate her prior felony convictions. The court denied her motion to strike the prior prison term enhancements in April 2016 and sentenced her to an additional two years on those enhancements.
In short, defendant's prior felony convictions were reduced to misdemeanors before the enhancement allegations were adjudicated. Accordingly, the trial court erred in denying her motion to strike those allegations. We modify the judgment to strike the two prior prison terms erroneously imposed.
B. Penalty Assessments
Defendant also challenges imposition of the penalty assessments on the criminal laboratory analysis fee imposed under Health and Safety Code section 11372.5, subdivision (a) ("the lab fee"). Defendant's challenge lacks merit.
Penal Code section 1464 and Government Code section 76000 mandate penalties or assessments upon every fine, penalty, or forfeiture imposed by the trial court in a criminal case. Health and Safety Code section 11372.5, subdivision (a), provides "[e]very person who is convicted of a violation of [these enumerated offenses] 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."
"Health and Safety Code section 11372.5, defines the criminal laboratory analysis fee as an increase to the total fine and therefore is subject to penalty assessments under section 1464 and Government Code section 76000." (People v. Martinez (1998) 65 Cal.App.4th 1511, 1521 (Martinez).) In 2002, this court found the issue "settled" and reaffirmed that the lab fee is a fine and thus imposition of the penalty assessments mandatory. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413, 1414, fn. 3 (Turner).)
Defendant now challenges our decision in Turner and all subsequent decisions on this issue, arguing that we should reevaluate our decision in light of the recent decision in People v. Watts (2016) 2 Cal.App.5th 223 (Watts). We are not persuaded.
Defendant also relies on a decision from the appellate division of the Nevada County Superior Court, People v. Moore (2015) 236 Cal.App.4th Supp. 10, to support her argument. While we do not agree with much of the First District's analysis in Watts, supra, 2 Cal.App.5th 223, we do agree that the analysis in Moore is wholly unpersuasive. (Id. at p. 233.)
In Watts, the First District Court of Appeal concluded, contrary to the weight of authority, that the lab fee is not subject to penalty assessments because it is neither a "fine" nor a "penalty." (Compare Watts, supra, 2 Cal.App.5th at pp. 234-236 with People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332, Martinez, supra, 65 Cal.App.4th at p. 1522, Turner, supra, 96 Cal.App.4th at p. 1416, fn. 5, People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1252, People v. Terrell (1999) 69 Cal.App.4th 1246, 1257, and People v. Sharret (2011) 191 Cal.App.4th 859, 863-864 (Sharret).)
In reaching its decision, the First District found the analysis in Martinez and its progeny was "not compelling." (Watts, supra, 2 Cal.App.5th at p. 234.) The First District notes that the Martinez court relied heavily on the analysis in People v. Sierra (1995) 37 Cal.App.4th 1690, discussing Health and Safety Code section 11372.7's drug program fee, and concluded the lab fee "must also be subject to the penalty assessments because [Health and Safety Code] section 11372.5 'defines the [lab] fee as an increase to the total fine.' " (Watts, supra, at p. 232.) This, the First District concluded, is illogical: "we fail to perceive how the fact that the [lab fee] increases the 'total fine' necessarily means the fee is itself a 'fine' subject to penalty assessments." (Id. at p. 234.)
The First District also disagreed with the Martinez decision and its progeny because none of those decisions "differentiate" between the first and second paragraphs in section 11372.5, subdivision (a), which the court reasoned is critical to interpreting the statute. (Watts, supra, 2 Cal.App.5th at pp. 231, 234.) It is only in the second paragraph of Health and Safety Code section 11372.5, subdivision (a) that the legislature included the word "fine" and the phrase "any other penalty." (Watts, supra, at pp. 231, 234.) Thus, the court reasoned, the lab fee is a fine or penalty only when it is imposed pursuant to the second paragraph, i.e., when it is imposed on an offense "for which a fine is not authorized by other provisions of law." (Health & Saf. Code, § 11372.5, subd. (a); Watts, supra, at p. 234.)
Moreover, Watts reasoned, the legislature's decision to characterize the lab fee as a " 'criminal laboratory analysis fee' reflects an intent to treat the charges as an administrative fee not subject to penalty assessments in circumstances that are not governed by the second paragraph of subdivision (a)." (Watts, supra, 2 Cal.App.5th at p. 234.)
The First District found further support for its decision in People v. Vega (2005) 130 Cal.App.4th 183 (Vega), although the issue in Vega was different than the one presented here. In Vega the issue was whether a lab fee plus penalty assessments was properly imposed on a defendant who was convicted of conspiracy to transport or conspiracy to possess cocaine for sale. (Vega, supra, at pp. 193-194.) Section 182, which defines and describes the punishment for crimes of conspiracy, states that those convicted "shall be punish[ed] in the same manner and to the same extent as is provided for the punishment of that felony." (§ 182, subd. (a).) Whether the lab fee could be imposed depended on whether the fee was properly considered a punishment. Vega concluded the fee was not a punishment, since it interpreted that the fee was imposed to defray administrative costs, not to deter or make retribution. (Vega, supra, at p. 195.) Accordingly, Vega held that the criminal laboratory analysis fee was improperly imposed on the defendant. (Ibid.)
Not all courts have agreed with Vega. In Sharret, supra, 191 Cal.App.4th 859, another division of the Second Appellate Court, did not analyze Vega in its analysis and concluded that "[t]he [Health and Safety Code] section 11372.5 criminal laboratory analysis fee constitutes punishment and must be stayed under section 654." (Sharret, supra, at p. 869.)
None of the First District's reasoning in Watts compels us to revise our long-settled interpretation of the lab fee as a fine subject to penalty assessments. (Turner, supra, 96 Cal.App.4th at p. 1416, fn. 5.) Indeed, and despite the First District's contrary conclusion, we find ongoing support for our interpretation of the lab fee as a fine subject to penalty assessments in our Supreme Court's decision in People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen).
In Talibdeen, the trial court "imposed, among other things, a laboratory analysis fee of $50 pursuant to Health and Safety Code section 11372.5, subdivision (a). Although subdivision (a) of . . . section 1464 and subdivision (a) of Government Code section 76000 called for the imposition of state and county penalties based on such a fee, the trial court did not levy these penalties, and the People did not object at sentencing." (Talibdeen, supra, 27 Cal.4th at p. 1153, fns. omitted.) The appellate court imposed the penalties after concluding they were mandatory and not discretionary sentencing choices. Our Supreme Court affirmed the appellate court's judgment, holding that the trial court had no discretion to waive penalties in the matter. (Talibdeen, supra, 27 Cal.4th 1157.)
We read the Supreme Court's discussion in Talibdeen as approving the interpretation of lab fees imposed under Health and Safety Code section 11372.5 as fines subject to penalty assessments. Defendant's claim thus fails.
C. Conditions of Probation
Defendant contends probation condition 13 requiring that she "abstain from the use or possession of alcohol & not be in or about places where it is the main item of sale or use" is unconstitutionally vague. She claims the condition is not "sufficiently precise," making it impossible for her to determine what places apply. She requests that the condition be modified to include an express knowledge requirement.
The People contend no such modification is necessary in light of our opinion in People v. Patel (2011) 196 Cal.App.4th 956 (Patel). There, we held: "We construe every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly. It will no longer be necessary to seek a modification of a probation order that fails to expressly include such a scienter requirement." (Id. at pp. 960-961, fn. omitted.) The probation conditions at issue here fall squarely within the "presence, possession, association, or similar action" described in Patel.
Defendant acknowledges our decision in Patel, but nevertheless invites us to reconsider our decision in light of the First District's more recent decision People v. Gaines (2015) 242 Cal.App.4th 1035 (review granted Feb. 17, 2016, S231723). After briefing was completed in this matter, however, our Supreme Court ruled, consistent with our decision in Patel, that particular probation conditions include an implicit scienter requirement. (See People v. Hall (2017) 2 Cal.5th 494, 497 ["we conclude . . . that the probation conditions already include an implicit requirement of knowing possession, and thus afford defendant fair notice of the conduct required of him."].) This opinion resolves the split in authority on this issue. We will therefore continue to adhere to the rule that scienter is implied in particular conditions of probation.
Thus, we construe probation condition 13, which falls squarely within the "presence, possession, association, or similar action" described in Patel, to require the proscribed conduct to be undertaken knowingly. (Patel, supra, 196 Cal.App.4th at pp. 960-961; see People v. Hall, supra, 2 Cal.5th at p. 497.) Therefore, there is no need to modify the condition to include an express knowledge requirement because scienter is already implied.
DISPOSITION
The judgment is modified to strike the two prior prison term enhancements previously imposed as described by this opinion. As modified, the judgment is affirmed. The trial court is directed to prepare an amended and corrected abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
NICHOLSON, Acting P. J. I concur: HULL, J. Concurring opinion of Hoch, J.
I concur with the majority that defendant Kelly Deanne Bell's prior prison term enhancements must be stricken under this court's recent decision in People v. Kindall (2016) 6 Cal.App.5th 1199. (Maj. opn., ante, at pp. 2-3.) I also agree that defendant's conditions of probation are not unconstitutionally vague. (Maj. Opn., ante, at pp. 7-8.) I write separately because I would apply a different analysis as to whether the criminal laboratory analysis fee under Health and Safety Code section 11372.5 is subject to penalty assessments. (Maj. opn., ante, at pp. 3-6.)
Undesignated statutory references are to the Health and Safety Code. --------
Here, defendant's convictions included violations of sections 11351, 11364, and 11357. For each conviction of these offenses, section 11372.5 imposes a criminal laboratory analysis fee not to exceed $50. Subdivision (a) of section 11372.5 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 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."
Section 11372.5 uses four different terms to refer to the same levy. Subdivision (a) describes the levy as a "criminal laboratory analysis fee," "a fine," an "increment," and a penalty to be imposed "in addition to any other penalty prescribed by law." (Italics added; see also People v. Watts (2016) 2 Cal.App.5th 223, 228 (Watts) ["Making sense of the system is particularly difficult because the Legislature has described criminal monetary charges with a variety of terms, such as fine, fee, assessment, increment, and penalty, while sometimes assigning different meanings to the same term"].) Thus, the labels used by section 11372.5, by themselves, do not clearly answer whether the levy is a fee or a fine. However, the distinction is important because "[a]dditional penalties, or assessments, are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses." (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694, citing Pen. Code, § 1464.)
Penal Code section 1464, subdivision (a)(1), imposes a penalty assessment by requiring that, with exceptions not pertinent in this case, "there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." (Italics added.)
Similarly, Government Code section 76000, subdivision (a)(1), imposes an additional penalty assessment by requiring that, with exceptions not pertinent in this case, "there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." (Italics added.) Subdivision (a)(2) of Government Code section 76000 further provides that "[t]his additional penalty shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code. These moneys shall be taken from fines and forfeitures deposited with the county treasurer prior to any division pursuant to Section 1463 of the Penal Code."
Thus, if the criminal laboratory analysis fee constitutes a fine, penalty, or forfeiture, then it is subject to the additional penalty assessments of Penal Code section 1464 and Government Code section 76000. The Legislature's use of the term "fee" does not preclude the determination that the levy is in the nature of a fine because "the label the Legislature places on a charge, whether 'fee' or 'fine,' is not determinative, especially where as here the Legislature used both terms." (People v. Vega (2005) 130 Cal.App.4th 183, 195 (Vega); see also In re Alva (2004) 33 Cal.4th 254, 266-267.) As the Vega court noted, "In most cases the determination can be made on the basis of the purpose of the charge imposed. Fines are imposed for retribution and deterrence; fees are imposed to defray administrative costs." (Vega, at p. 195.)
The language of section 11372.5 redundantly establishes the Legislature intended levy to constitute a fine or penalty. First, subdivision (a) of section 11372.5 provides that, to impose the criminal laboratory analysis fee, "[t]he court shall increase the total fine necessary to include this increment." (Italics added.) As a component of the total fine, the levy under section 11372.5 is itself a fine. If the levy under section 11372.5 were not a fine, there would be no need to include this sentence to authorize the trial court to increase the total fine. Deeming the criminal laboratory analysis fee to be anything other than a fine would render the sentence mere surplusage. "Interpretations that lead to absurd results or render words surplusage are to be avoided." (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037, quoting People v. Loeun (1997) 17 Cal.4th 1, 9.)
Second, subdivision (a) of section 11372.5 further provides the levy "shall be in addition to any other penalty prescribed by law." Thus, the subdivision equates the levy with other penalties. A conclusion that the criminal laboratory analysis fee were not a fine or penalty would render this phrase unnecessary. I decline to relegate this phrase to mere surplusage. The express purpose of the phrase is to ensure that the criminal laboratory analysis fee be imposed in addition to other penalties required by law.
As a fine or penalty, the levy under section 11372.5 is subject to the penalty assessments imposed by Penal Code section 1464 and Government Code section 76000. This conclusion comports with the result in the California Supreme Court's decision in People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen). In Talibdeen, the Supreme Court considered whether the trial court had discretion to waive the criminal laboratory analysis fee imposed by Penal Code section 1464. (Id. at pp. 1153-1154.) The Talibdeen court concluded that, "at the time of sentencing, the trial court had no choice and had to impose state and county penalties in a statutorily determined amount on defendant." (Id. at p. 1157, italics added.) Accordingly, the Supreme Court held "that the Court of Appeal properly corrected the trial court's omission of state and county penalties even though the People raised the issue for the first time on appeal." (Ibid., italics added.)
The conclusion that the criminal laboratory analysis fee under section 11372.5 constitutes a fine or penalty also comports with the reasoning in Sierra, supra, 37 Cal.App.4th 1690. Sierra involved the question of whether penalty assessments apply to the drug program fee imposed by section 11372.7. (Sierra, at p. 1694.) Section 11372.7 imposes the drug program fee with language similar to that used to impose the criminal laboratory analysis fee. With enumerated exceptions, section 11372.7, subdivision (a), provides that "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." (Italics added.) Based on this language, the Sierra court rejected the contention the levy was not a penalty. Sierra reasons, "The problem with appellant's construction of . . . section 11372.7, subdivision (a) is that the very sentence appellant attempts to interpret defines the drug program fee as an increase to the 'total fine' and later as a fine in addition 'to any other penalty.' (Italics added.) In other words, section 11372.7, subdivision (a) describes itself as both a fine and/or a penalty." (Sierra, at p. 1695.)
The same statutory interpretation applies to the criminal laboratory analysis fee that also requires the trial court to "increase the total fine necessary" and to impose the fine in addition to any other penalty. (§ 11372.5, subd. (a)(1).) (People v. Martinez (1998) 65 Cal.App.4th 1511, 1520 [following the reasoning of Sierra in holding the criminal laboratory analysis fee constitutes a fine for purposes of penalty assessments].) Following this line of authority, this court has previously determined the issue "settled" and reaffirmed the lab fee is a fine to which penalty assessments apply. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413, 1414, fn. 3.)
Nonetheless, there are published decisions that draw a different conclusion. (E.g., Vega, supra, 130 Cal.App.4th 183; Watts, supra, 2 Cal.App.5th 223.) The Vega court held the criminal laboratory analysis fee does not apply to defendants convicted of conspiracy to transport cocaine because it is not a punishment. (Vega, supra, at p. 185.) The Vega court reached this conclusion by reasoning: "It is clear to us the main purpose of . . . section 11372.5 is not to exact retribution against drug dealers or to deter drug dealing (given the amount of money involved in drug trafficking a $50 fine would hardly be noticed) but rather to offset the administrative cost of testing the purported drugs the defendant transported or possessed for sale in order to secure his [or her] conviction. The legislative description of the charge as a 'laboratory analysis fee' strongly supports our conclusion, as does the fact the charge is a flat amount, it does not slide up or down depending on the seriousness of the crime, and the proceeds from the fee must be deposited into a special 'criminalistics laboratories fund' maintained in each county by the county treasurer." (Vega, at p. 195.)
However, the Vega court's analysis ignores key parts of section 11372.5, subdivision (a)(1), where the statute allows the criminal laboratory analysis fee to increase the total fine and be imposed in addition to any other penalty. Rather than divine the purpose of section 11372.5 from the magnitude of or manner of calculating the fine, I prefer to allow the Legislature to express the purpose for the statute. By expressly allowing the total fine to be increased to allow for the criminal laboratory analysis fee in addition to any other penalty, the Legislature has used language that only makes sense if the levy is a fine or penalty. Consequently, I do not adopt the Vega court's reasoning on section 11375.2. (Vega, supra, 130 Cal.App.4th 867.)
Recently, the First District held section 11372.5 does not constitute a penalty or a fine in Watts, supra, 2 Cal.App.5th 223. Examining section 11372.5, Watts considered subdivision (a) to be internally inconsistent in describing the levy both as a fee and a fine. (Id. at p. 231.) The Watts court reasoned, "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.)" (Watts, at p. 231.) On this ground, Watts disagreed with "decisions that have failed to differentiate between these two paragraphs in concluding that the crime-lab fee is necessarily subject to penalty assessments." (Ibid.) Thus, the Watts court rejected "the rationale of Martinez, Sierra, [and] the courts that have followed them, under which section 11372.5(a)'s references to the phrases 'total fine,' 'fine,' and 'any other penalty' somehow establish that the crime-lab fee constitutes a 'fine' or 'penalty' within the meaning of the statutes governing penalty assessments. As to the statute's reference to 'total fine,' we fail to perceive how the fact that the crime-lab fee increases the 'total fine' necessarily means the fee is itself a 'fine' subject to penalty assessments. Nothing about the statute's use of the phrase 'total fine' is inconsistent with the conclusion that the crime-lab fee simply gets added to the overall charge imposed on the defendant after penalty assessments are calculated. And as to the statute's references to the word 'fine' and the phrase 'any other penalty,' they appear only in section 11327.5(a)'s second paragraph, which applies only to offenses 'for which a fine is not authorized by other provisions of law.' " (Watts, at p. 234.)
The Watts court also adopted Vega's reasoning that "[t]he crime-lab fee . . . is a fixed charge that is 'imposed to defray administrative costs,' not 'for retribution and deterrence.' (Vega, supra, 130 Cal.App.4th at p. 195; see also People v. Wallace (2004) 120 Cal.App.4th 867, 876 ['fee' is 'more nonpunitive term' than 'fine'].)" (Watts, supra, 2 Cal.App.5th at p. 235.) Watts further reasons that "[s]ection 11372.5's legislative evolution bolsters the conclusion that the Legislature's characterization of the crime-lab fee as a 'criminal laboratory analysis fee' reflects an intent to treat the charge as an administrative fee not subject to penalty assessments in circumstances that are not governed by the second paragraph of subdivision (a). When section 11372.5 was originally enacted in 1980, it required every person convicted of an enumerated offense to, 'as part of any fine imposed, pay an increment in the amount of fifty dollars ($50) for each separate offense.' (Stats. 1980, ch. 1222, § 1, p. 4140, italics added.) This portion of the statute was later amended to require every person convicted of a covered offense to 'pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.' (Stats. 1983, ch. 626, § 1, p. 2527.) The elimination of the reference to the fee's being part of the 'fine imposed' and its renaming from an 'increment' to a 'fee' strongly suggest that the Legislature did not intend the fee to be a 'fine, penalty, or forfeiture' because section 11372.5 calls it something else." (Watts at p. 234.)
This reasoning is not persuasive. The original version of section 11372.5 relied upon but not quoted in Watts provided: "Every person who is convicted of a violation of Section 11350, 11351, 11352, 11358, 11359, 11363, 11364, 11368, 11377, 11378, 11378.5, 11379, 11379.5, or 11383, or subdivision (a), (c) of Section 11357, or subdivision (a) of Section 11360, shall, as part of any fine imposed, pay an increment in the amount of fifty dollars ($50) for each separate offense. The courts shall increase the total fine as 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 may 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." (Stats. 1980, ch. 1222, § 1, pp. 4140-4141, italics added.)
The Watts court's analysis implies that under the 1980 version of section 11372.5 the criminal laboratory analysis fee was a fine or penalty. (See Watts, supra, 2 Cal.App.5th at p. 210.) However, mere deletion of the phrase "as part of any fine imposed" does little to establish any legislative intent to transform a fine into a nonpunitive fee. This is especially true because the last sentence of each of the two paragraphs in subdivision (a) of section 11372.5 has remained largely the same. The first paragraph has been changed to make the reference to "courts" become singular in the present version. And the second paragraph has been changed from providing, "the court may" impose the levy to the instruction, "the court shall" impose the levy. Accepting the Watts court's premise that the 1980 version of section 11372.5 enacted a fine compels the conclusion the levy under that section is still a fine.
Although Watts advances a thoughtful interpretation of section 11372.5, the better reading of the statute yields the conclusion that the criminal laboratory analysis fee constitutes a fine or penalty for purposes of penalty assessments. As the Watts court acknowledges, the label attached to the levy is not determinative of its nature. (Watts, supra, 2 Cal.App.5th at p. 235.) And while the first paragraph of section 11372.5, subdivision (a), uses "fee" in the name of the levy, that paragraph ends with the sentence that the court "shall increase the total fine as necessary to include this increment." As I have noted, a conclusion that the criminal laboratory analysis fees is not subject to penalty assessments would render this sentence mere surplusage.
Watts, supra, 2 Cal.App.5th 223 also too easily dismisses the second paragraph of section 11372.5, subdivision (a). The second paragraph states the trial court shall impose a $50 levy "which shall be in addition to any other penalty prescribed by law" even for "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." (Italics added.) The purpose of the second paragraph is irrelevant if the criminal laboratory analysis fee is not subject to penalty assessments. Where Watts must "differentiate" between paragraphs of the same subdivision to account for "internal inconsistency," (id. at p. 231) it appears to me all of subdivision (a) is in harmony with a purpose to impose a fine and to ensure the total fine be increased to account for the criminal laboratory analysis fee. Thus, there is no language in the subdivision that serves as a mere nullity.
I am sympathetic to the Watts court's observation that the different categories of monetary charges to be imposed on convicted defendants are "ill-defined" and complex. (Watts, supra, 2 Cal.App.5th at p. 228.) Even though Watts agreed with the result of the appellate department in this case, the Watts court too "disagree[d] with [Moore's] reliance on Penal Code section 1463 in interpreting the phrase 'total fine.' (Moore, supra, 236 Cal.App.4th Supp. at p. 17, 187.)" (Watts, at p. 223.) In a statement with which I agree, the Watts court noted that "we fail to perceive how the fact that the crime-lab fee increases the 'total fine' necessarily means the fee is itself a 'fine" subject to penalty assessments.' " (Id. at p. 234.) But where Watts proceeds to find no impediment to concluding the section 11372.5 levy is not a fine, I arrive at a different conclusion based on the function of the last sentence of each paragraph in subdivision (a)(1) of section 11372.5. Even if the interplay of base and total fines is imprecisely drawn, the Legislature's redundant inclusion of language granting the trial court the ability to impose the fine by increasing the total fine and making it an addition to any other penalty suffices to make section 11372.5 subject to penalty assessments. Thus, 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.
HOCH