Opinion
C085299
07-31-2018
THE PEOPLE, Plaintiff and Respondent, v. MARISHA ANN DERMAKE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE009355)
Defendant Marisha Ann Dermake appeals from the imposition of penalty assessments on the criminal laboratory analysis (Health & Saf. Code, § 11372.5; statutory section references that follow are to the Health and Safety Code unless otherwise stated) and drug program fees (§ 11372.7) imposed as part of the sentence following her plea of no contest to possession of methamphetamine for sale (§ 11378). She contends these are administrative fees, not fines, penalties, or forfeitures. As such, she argues they are not subject to penalty assessments. We affirm the judgment.
FACTS AND PROCEEDINGS
At the time of her arrest, defendant was in possession of four individually packaged baggies of methamphetamine, an additional 15 grams of methamphetamine and packaging material, over $700 in cash, and a scale. A complaint charged her with possession of methamphetamine for sale. She pleaded no contest to the charge in exchange for a 16-month sentence in local prison. The trial court sentenced defendant in accordance with the plea to 16 months and imposed a variety of fines and fees, including a $50 criminal laboratory analysis fee (§ 11372.5), plus penalty assessments, and a $150 drug program fee (§ 11372.7, subd. (a)), plus penalty assessments (Gov. Code, § 76000; Pen. Code, § 1464).
DISCUSSION
Defendant's sole contention on appeal is that the trial court erred in imposing penalty assessments on the criminal laboratory analysis and drug program fees. She argues, those are not punishment but rather, they are fees. Accordingly, she contends they are not subject to penalty assessments.
Both the criminal laboratory analysis fee (§ 11372.5) and the drug program charges (§ 11372.7) are denominated "fees." "The Legislature's use of the term 'fee' does not preclude the determination that the levy is in the nature of a fine or penalty 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.' [Citations.]" (People v. Moore (2017) 12 Cal.App.5th 558, 564, review granted Sept. 13, 2017, S243387 (Moore).)
With exceptions not relevant to this case, the penalty assessments of Penal Code section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)(1) are levied "upon every fine, penalty, or forfeiture imposed." (Italics added.) They are not imposed on fees. Thus, the ultimate question we must answer here is whether the criminal lab and drug program levies are fees, administrative in nature and exempt from the penalty assessments, or fines, punitive in nature and subject to penalty assessments.
As both parties acknowledge, there is a split of authority in the Courts of Appeal on this issue. (People v. Webb (2017) 13 Cal.App.5th 486, 496, 498-499 [penalty assessments not permitted]; People v. Martinez (2017) 15 Cal.App.5th 659, 667-669 [same]; People v. Watts (2016) 2 Cal.App.5th 223, 231 [drug program fee are fees, not subject to penalty assessments]; People v. Vega (2005) 130 Cal.App.4th 183, 194-195 [laboratory analysis fee is not a punishment]; but see People v. Alford (2017) 12 Cal.App.5th 964, 975-976 [laboratory analysis fee and the drug program fee are subject to penalty assessments], review granted Sept. 13, 2017, S243340]; see also Moore, supra, 12 Cal.App.5th 558 [laboratory fee is fine subject to penalty assessments] review granted Sept. 13 2017, S243387; People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522 [laboratory fee intended to be punitive]; People v. Sierra (1995) 37 Cal.App.4th 1690, 1695 [drug program fee is a fine subject to assessments].) The specific issue is also currently pending before the California Supreme Court. (Alford, at p. 977, review granted Sept. 13, 2017, S243340.)
Subsequent to the completion of briefing in this case, the California Supreme Court decided a related issue in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). In Ruiz, the Court reviewed whether it was appropriate to impose a criminal laboratory analysis fee and a drug program fee for a conviction of conspiracy to transport a controlled substance. (§ 11379, subd. (a).) Because neither fee statute referred to a person convicted of a conspiracy, the answer to this question relied on whether the fees came within the meaning of punishment in the conspiracy statute. (Ruiz, at p. 1104.) The Supreme Court detailed the statutory language and legislative history of both statutes and determined the Legislature "understood and intended the 'criminal laboratory analysis fee' to be a 'fine' and a 'penalty.' [Citation.] The same conclusion appears from the language of section 11372.7, subdivision (a), . . . ." (Id. at p. 1109].)
The court explicitly rejected and disapproved of People v. Watts, supra, 2 Cal.App.5th 223, People v. Webb, supra, 13 Cal.App.5th 486, Martinez, supra, 15 Cal.App.5th 659, and People v. Vega, supra, 130 Cal.App.4th 183, the cases upon which defendant relies, which held that these fees were not punishment. (Ruiz, supra, 4 Cal.5th 1100.) "Initially, neither the language of the statutes nor their legislative history persuades us to adopt defendant's view of the Legislature's 'main purpose' [of offsetting administrative costs of laboratory testing and government programs] in establishing these charges. As already explained, both statutes refer to the charges as 'fine[s]' and provide that, in some cases, the fine 'shall be in addition to any other penalty prescribed by law.' (§§ 11372.5, subd. (a), 11372.7, subd. (a), italics added.) In terms of legislative history, several analyses of the legislation that enacted section 11372.7 emphasized that the statute 'seeks to provide an enhanced penalty for those convicted of drug violations.' [Citations.] And an analysis of the legislation that amended section 11372.5, subdivision (a) in 1983—by adopting the term 'criminal laboratory analysis fee' and expanding the list of offenses subject to that charge (Stats. 1983, ch. 626, § 1, p. 2527)—explained that a purpose of the fee was to 'provide an additional reminder to offenders of the true cost of their acts.' [Citation.] This description discloses a legislative intent to promote one of 'the traditional aims of punishment' [citation]—deterrence—'by warning the offender, and others tempted to commit the same violation, of the price to be paid for such actions' [citation]. Thus, the statutory language and legislative history undermine defendant's claim regarding the Legislature's 'main purpose' in establishing the criminal laboratory analysis and drug program fees." (Ruiz, supra, 4 Cal.5th at pp. 1118-1119.)
Although noting it was not dispositive, Ruiz also relied on the Supreme Court's earlier decision in People v. Talibdeen (2002) 27 Cal.4th 1151. (Ruiz, supra, 4 Cal.5th at p. 1120.) "As noted above, the central issue there [in Talibdeen] was whether imposition of the additional penalties was 'mandatory'—in which case they could be imposed on appeal notwithstanding the People's failure to object below—or 'discretionary'—in which case they could not be imposed on appeal. (Talibdeen, supra, 27 Cal.4th at p. 1153.) A prerequisite to our holding that the penalties were, in fact, mandatory was that section 11372.5's criminal laboratory analysis fee constituted a 'fine, penalty, or forfeiture' within the meaning of Penal Code section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)." (Ruiz, at p. 1120.) The Ruiz court found that whether or not Talibdeen compelled the conclusion that the criminal laboratory fees and drug program fees were punishment for purposes of Penal Code section 182, the reasoning in Talibdeen supported the conclusion. (Ruiz, at p. 1121.)
After examining the statutory language and legislative history of sections 11372.5 and 1172.7, this court also followed the reasoning in Talibdeen when we concluded the criminal laboratory and drug program fees were fines subject to the penalty assessments. (Moore, supra, 12 Cal.App.5th at pp. 564-568, 569-572, review granted Sept. 13, 2017, S243387.) We continue to believe this analysis is correct. The reasoning of Ruiz further supports the conclusion here that the criminal laboratory analysis fee and drug program fee are punishment for purposes of the penalty assessments of Penal Code section 1464 and Government Code section 76000, subdivision (a). That is, "it is clear the Legislature intended the fees at issue here to be punishment." (Ruiz, supra, 4 Cal.5th at p. 1122.) Because they were intended to be punishment, the penalty assessments are mandatory. Accordingly, the trial court properly imposed the penalty assessments on the criminal laboratory analysis fee and the drug program fee.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: RAYE, P. J. MURRAY, J.