Opinion
D071727
10-25-2017
THE PEOPLE, Plaintiff and Respondent, v. KENNETH GUTIERREZ, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry J. Carlton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE362341) APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry J. Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
At the time of sentencing in this case, the trial court imposed a $50 lab fee, and added a $155 penalty assessment. Appellant agrees the lab fee was properly imposed. This appeal is solely about the $155 penalty assessment.
FACTS AND PROCEDURAL BACKGROUND
A jury convicted appellant, Kenneth Gutierrez, of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and possession of drug paraphernalia (§ 11364). The court found appellant had previously been convicted of attempted murder (Pen. Code, §§ 187, 664). The court found that prior conviction was both a serious/violent felony prior conviction and a "super strike" under Penal Code section 667, subdivision (e)(2)(C)(iv), which made the section 11377 conviction a felony. The court struck the serious/violent felony prior and sentenced appellant to a two-year term. The court imposed various fines and fees including a lab analysis fee (§ 11372.5, subd. (a)).
All further statutory references are to the Health and Safety Code unless otherwise specified.
Appellant was found to have possessed 8.2 grams of methamphetamine and two glass pipes.
This appeal challenges only the penalty assessment attached to the lab analysis fee. We will affirm.
DISCUSSION
During the sentencing hearing, defense counsel argued strenuously for a mitigated sentence. Counsel aggressively made the case that appellant had done a great deal to reform himself since his attempted murder conviction. In large part counsel was successful in obtaining a sentence for appellant that was less than that for which the prosecution advocated. Counsel did not, however, object to the $155 penalty assessment attached to the admittedly valid lab analysis fee. Appellate counsel now claims trial counsel was constitutionally ineffective for failing to object to the "excessive fine." It would be easy to dismiss the claim of ineffective assistance of counsel on this record.
Obviously, counsel was focused on minimizing the client's custody exposure. We do not know why counsel did not focus on the $155 penalty assessment, but one can surmise counsel had a more important goal in mind. However, in the absence of any explanation for failing to object, we cannot determine if there was ineffective assistance of counsel. On this record, we cannot evaluate the tactical decisions counsel may have made. (People v. Mendoza Tello (1997) 15 Cal.4th 264.)
In any event, respondent does not argue that the contention should be forfeited for failure to object. Accordingly, we will move to a discussion of the merits of the appellate challenge.
In a single paragraph argument respondent contends the court was required to impose an additional lab analysis fee on the misdemeanor count, even in the absence of an objection by the prosecutor. If the People believe the fee is required they may present the issue to the trial court in the first instance as an unauthorized sentence, subject to correction at any time. (People v. Smith (2001) 24 Cal.4th 849, 852-854.) --------
The question of whether the lab analysis fee is really a fine and thus subject to penalty assessment has been the subject of disagreement among the Courts of Appeal.
Several cases have held that the fee is in fact a fine and subject to penalty assessment. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1522; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257; People v. Jordan (2003) 108 Cal.App.4th 349, 368; People v. Sharret (2011) 191 Cal.App.4th 859, 869-870.)
In People v. Watts (2016) 2 Cal.App.5th 223, 235-237, the court disagreed with the view that the fee was punitive and essentially a fine. The court in Watts determined the fee was not subject to penalty assessment.
In People v. Alford (2017) 12 Cal.App.5th 964 (Alford) (review granted Sept. 13, 2017, S243340), this court analyzed the cases on both sides of the issue. We concluded the better view was that this particular fee was punitive and subject to penalty assessment. We urged the Supreme Court to review the issue. The high court has granted review in Alford and other cases to resolve the split of authority.
We are aware the Supreme Court will resolve the issue and provide guidance to the courts. Pending such guidance, we adhere to the analysis we set forth in Alford, supra, 12 Cal.App.5th 964 and conclude the trial court properly imposed the $155 penalty assessment.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.