Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06-0423
BUTZ, J.A jury found defendant Eldon Shawn Richey guilty of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)--count one), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)--count two), possession of a falsified temporary operating permit (Veh. Code, § 4463, subd. (a)(1)--count three), and willfully resisting a peace officer (Pen. Code, § 148, subd. (a)(1)--count five). Defendant was found not guilty of possession of burglary tools (Pen. Code, § 466--count four). On appeal, defendant contends he received ineffective assistance of counsel because counsel stipulated the methamphetamine was taken from defendant’s vehicle. He contends this stipulation “essentially eviscerated [defendant’s] defense to counts one and two.” We disagree.
We requested supplemental briefing on the proper imposition of fines and fees, particularly the state court construction fund penalty. (Gov. Code, § 70372.) We shall remand for the limited purpose of correcting the fines and fees.
Undesignated statutory references are to the Government Code (unless otherwise indicated, all references to statutes are to versions in effect at the time of defendant’s judgment in 2006).
FACTUAL AND PROCEDURAL BACKGROUND
The morning of February 9, 2006, Sutter County Sheriff’s Department Deputy Paul Hillegass was on patrol when he noticed a very loud red Honda CRX, which sounded like it had a loud racing-car-type exhaust. As he followed the CRX, it appeared to him that the exhaust system had been modified, which is a Vehicle Code violation. Hillegass stopped the vehicle, and told the driver, defendant, why he had been stopped. Among other things, Hillegass asked for defendant’s identification. Defendant took his driver’s license out of his wallet and gave it to Hillegass. Upon contacting dispatch to run a DMV check on defendant, Hillegass learned defendant was on summary searchable probation.
At the time of trial, Officer Hillegass was a Yuba City police officer.
Deputy Hillegass asked defendant if he was on probation, and defendant indicated he was uncertain whether he was. Hillegass informed defendant he was going to search the car and defendant. As defendant stood to get out of the car, his hands were in his jacket pockets. For officer safety reasons, Hillegass told defendant to take his hands out of his pockets. Defendant did not comply. Hillegass grabbed ahold of defendant’s clothing and repeatedly commanded defendant to show his hands. After complying briefly, defendant put his hands back in his pockets. Hillegass grabbed the back of defendant’s arms and told him to stop. Defendant pulled his arms forward as Hillegass pulled defendant’s arms back. Hillegass was ultimately able to pull defendant’s arms back and handcuff him.
Meanwhile, Sergeant Gray house arrived to assist Deputy Hillegass. Gray house patted defendant down and took him to the patrol car. Hillegass and Gray house then searched defendant’s car. In the course of the search, Gray house found methamphetamine in defendant’s wallet, which was on the passenger seat of the car. The officers also found a “slim jim,” a tool used for unlocking a vehicle. The temporary vehicle registration permit, which was taped to the outside of the rear window, was unreadable and appeared to be a copy rather than an original.
Deputy Hillegass also testified there are legitimate uses for slim jims, and that they are tools of the trade for people who work for tow companies or own a tow truck. He did not ask defendant if he owned or drove a tow truck.
Deputy Hillegass Mirandized defendant, and defendant agreed to speak with him. Hillegass asked about the methamphetamine. Defendant told Hillegass the methamphetamine was “in [his] wallet,” that he had paid $5 for it and he ingests it orally. Hillegass also asked about the registration permit and defendant told him he had made the registration tab because the one issued by the DMV had been damaged or faded.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Upon finding the methamphetamine, Deputy Hillegass decided to “cut [defendant] a break” and did not cite defendant for the loud muffler or the modification to the exhaust system. Prior to February 9, 2006, Hillegass did not know defendant and had no prior contact with him.
Deputy Hillegass took the temporary operating permit from defendant’s car to the DMV office in Yuba City and spoke with Kimberly White, a registration manager. Hillegass showed White the registration permit. She noticed the “2” on it was traced, it was missing a technician number and did not reflect the date it was issued. Defendant’s registration was paid until January 2006. There is no grace period following the expiration of the temporary operating permit.
The parties stipulated that People’s exhibit 1 was the substance taken from defendant’s car; the substance was analyzed as methamphetamine; methamphetamine is a controlled substance; and exhibit 1 contained a usable quantity of methamphetamine.
Defendant testified on his own behalf. He testified the resisting an officer charge resulted from a misunderstanding. Defendant denied ever having his hands in his pockets. He explained that he was turning around in compliance with Deputy Hillegass’s instructions, when Hillegass saw a bottle of “silicate silicose” in the back of his car and started “jerking” him around and accused him of cooking methamphetamine. When defendant denied manufacturing methamphetamine, Hillegass “got radical like he was going to slam [defendant] on the ground.” That was when defendant resisted Hillegass. Defendant explained he uses the silicate silicose for his car’s “head [g]askets.”
Defendant also claimed he had the slim jim legitimately, as he and his brother owned a tow truck. He tried to explain that the tool was for his tow truck, but Hillegass “didn’t want to hear nothing [defendant] had to say.” He also denied ever having had the CRX exhaust system modified. With respect to the temporary operating permit, defendant explained it had been damaged by rain, so he made a copy of it. He believed the permit was good until February.
Defendant denied any knowledge of the methamphetamine. He told the officers he did not have methamphetamine in his wallet and had never “been shown to use methamphetamine” in his life. He denied telling Deputy Hillegass that he snorted the methamphetamine. Defendant claimed there was no methamphetamine in his wallet or car when he got out of the car. Defendant noted, “I’m not saying they put it in there, but it came out of my car.”
Following the jury trial, defendant was convicted on all counts, except for the possession of burglary tools. Defendant was placed on formal probation for three years, conditioned upon serving 120 days in jail. He was also ordered to pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $50 criminal laboratory fee (Health & Saf. Code, § 11372.5), a state penalty fee of $60 (Pen. Code, § 1464, subd. (a)), a county penalty fee of $35 (Gov. Code, § 76000), a court security fee of $20 (Pen. Code, § 1465.8), and a state court facilities fee of $20 (Gov. Code, § 70372).
DISCUSSION
I. Defendant’s Ineffective Assistance of Counsel Claim Fails
Defendant contends trial counsel’s assistance was ineffective because he stipulated that the methamphetamine was taken from defendant’s car. He claims this constructively placed it in his possession, and “essentially eviscerated” his defense to the charges of transportation and possession of methamphetamine. We disagree.
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) “If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) Defendant has failed to make an adequate showing in either respect.
“In general, reviewing courts defer to trial counsel’s tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsel’s conduct falls outside the wide range of competent representation. [Citations.] In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.) Evidentiary stipulations fall within the purview of tactical trial decisions. (People v. Adams (1993) 6 Cal.4th 570, 578.)
Given defendant’s testimony at trial that the methamphetamine came out of his car, the stipulation did not eviscerate his defense to the possession and transportation charges. Defendant’s trial strategy was to discredit Deputy Hillegass as a witness and raise the implication that the methamphetamine was planted in defendant’s wallet.
In support of this strategy, defendant contradicted various aspects of Deputy Hillegass’s testimony. Hillegass testified defendant’s exhaust system was modified and the car was exceedingly loud. Defendant claimed the exhaust system on his car was the stock system, the muffler was quiet and could not be modified. Defense counsel also pointed out that defendant was not cited for the Vehicle Code violation on which Hillegass based the stop. Hillegass testified defendant repeatedly put his hands in his pockets. Defendant claimed he never put his hands in his pockets. Hillegass testified he did not know how defendant’s wallet ended up on the passenger seat of the car. Defendant claimed Hillegass told him to throw it in the car as he got out. Hillegass testified defendant admitted the methamphetamine was his and was in his wallet. Defendant denied ever using methamphetamine or admitting to possession. Hillegass testified defendant did not tell him he drove or owned a tow truck. Defendant claimed he told him the slim jim was for his tow truck. Hillegass testified he was alone in the patrol car, with no other officers, cadets or citizen riders. Defendant claimed there was a woman on a ride-along.
With respect to the specific charges, defendant admitted certain aspects of the offenses and then sought to explain them. Defendant admitted he was not entirely compliant with Deputy Hillegass’s requests. But, he explained, when Hillegass saw the silicate silicose in his car he went “radical.” So, he was not trying to resist arrest, he was simply trying to prevent himself from being “slammed” into the ground. He admitted the slim jim was his. But, he explained he had it for legitimate reasons, as he owned a tow truck. He admitted the temporary operating permit was copied. But, he explained the original had been damaged by the rain so he made the copy and he believed it was current. He admitted the methamphetamine came out of his car. But, he explained it was not his and he did not know it was there. Although he shied away from actually accusing the officers of planting the methamphetamine, the implication of his testimony and his efforts to paint Hillegass as dishonest were clear. Based on the defense strategy, the stipulation was not in “contravention of [defendant’s] testimony.”
We fail to see how a stipulation that is consistent with a general defense strategy and with defendant’s specific testimony could fall below a standard of reasonable competence or be prejudicial. Accordingly, counsel was not ineffective.
II. Correction of Fines and Fees
The trial court ordered defendant to pay the following fines, fees and penalties: $200 restitution fine (Pen. Code, § 1202.4, subd. (b)); $50 criminal laboratory fee (Health & Saf. Code, § 11372.5); $60 state penalty assessment (Pen. Code, § 1464, subd. (a)); $35 county penalty assessment (Gov. Code, § 76000); $20 state court facilities construction fund penalty (Gov. Code, § 70372); $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)); and $20 monthly probation supervision fee (Pen. Code, § 1203.1, subd. (b)). The court also imposed and stayed a $200 probation revocation fine (Pen. Code, § 1202.44).
In reviewing the record on appeal, we noticed errors in the imposition of fines and fees. We requested supplemental briefing from the parties to address the proper imposition of fines and to address particularly the penalty assessment under section 70372.
In connection with that supplemental briefing, the Attorney General has requested we take judicial notice of two resolutions from the Sacramento County Board of Supervisors. We deny the request. This case comes to us from Sutter County, not Sacramento County. Counsel makes no argument, nor can we discern any, which makes the actions of the Sacramento County Board of Supervisors in any way relevant to matters in Sutter County.
A. Laboratory Analysis Fee
Defendant was convicted of four offenses. Two of these offenses were drug offenses (counts one and two) enumerated under Health and Safety Code section 11372.5, subdivision (a), which provides in pertinent part, “[e]very person who is convicted of . . . [enumerated offenses] . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.” (Italics added.) The court imposed only a single $50 laboratory analysis fee. Since there were two convictions subject to this fee, we will correct the fee to $100.
B. Penalty Assessments
The imposition of the penalty assessments under Government Code section 76000, former subdivision (a) (see now subds. (a)(1) & (2)) and Penal Code section 1464 applicable to the laboratory analysis fee are also incorrect. The state penalty assessment under Penal Code section 1464 should be $100 and the county penalty assessment under Government Code section 76000, subdivision (a) should be $70. The drug laboratory analysis fee and the penalty assessments are mandatory and thus we may modify the judgment to impose them. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1157; People v. Taylor (2004) 118 Cal.App.4th 454, 456 (Taylor); People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1416.)
C. State Surcharge on Laboratory Analysis Fee
Because this offense was committed in February 2006, the court was also required to impose the 20 percent state surcharge under Penal Code section 1465.7 on the drug laboratory analysis fee, and did not do so. Therefore, we shall impose a state surcharge of $20. (Taylor, supra, 118 Cal.App.4th at p. 457.)
D. Court Security Fee
In addition, the court imposed a $20 court security fee under Penal Code section 1465.8. However, defendant was convicted of four criminal offenses and is therefore subject to four $20 court security fees. We shall modify the judgment to include an $80 court security fee, $20 for each of defendant’s four convictions. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)
E. Government Code Section 70372 Assessment
This now brings us to the issue of the appropriate assessment under section 70372 and the correct reduction, if any, under section 70375. Section 70372 provides for the imposition of a state court construction penalty, “in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses.” (§ 70372, former subd. (a) [see now subd. (a)(1)].) However, section 70375 provides “the amount authorized by Section 70372 shall be reduced by the following: [T]he amount collected for deposit into the local courthouse construction fund established pursuant to Section 76100.” (§ 70375, former subd. (b)(1) [see now amended subd. (b)(1)].)
Section 76000 authorizes each county to collect $7 on every $10 of criminal fines imposed. Under section 76100, a portion of that $7 may be designated for the local courthouse construction fund if such a fund was established by the Board of Supervisors. Section 70371 established a state (rather than county) court facilities construction fund. As noted, section 70372 provides the revenue for that fund and authorizes the imposition of a $5 assessment on every $10 of criminal fines. Once the county’s transfer of facilities to state control is complete, the authorization to impose the local courthouse fund assessment under section 76100 will expire. (§ 76000, subd. (e).)
There are a variety of things the section 76000 penalty assessment can be used for, including courthouse construction, criminal justice facilities construction, automatic fingerprint identification funding, forensic laboratory funding, emergency medical services funding, and DNA identification funding. (§§ 76000, 76100-76104.5.)
In Taylor, we concluded the $5 penalty assessment imposed and collected under section 70372 is subject to reduction depending on the amount, if any, of the county courthouse construction fund under section 76100 or the transitional state court facilities construction fund under section 70401. (Taylor, supra, 118 Cal.App.4th at pp. 459-460.)
Section 70401 provides: “There is hereby established in the State Treasury the Transitional State Court Facilities Construction Fund. For each facility transferred to the state that is subject to bonded indebtedness and for which a revenue source is also transferred to the state, pursuant to subdivision (b) of Section 70325, a separate account shall be established in the fund to receive and disburse moneys for that facility. The county shall continue to collect and transmit to the Controller for deposit in the fund the moneys transferred to service the debt on the facility. The fund shall cease to exist when all debt transferred to the state pursuant to Section 70325 has been paid.”
The Court of Appeal, Second Appellate District, Division Five, disagreed with our conclusion in Taylor and held the full $5 state court construction assessment under section 70372 should be imposed in addition to the full $7 penalty assessment under section 76100. (People v. Chavez (2007) 150 Cal.App.4th 1288, review granted June 28, 2007, S153920 (Chavez).) Chavez concluded the reduction referred to in section 70375 referred to the amount transmitted to the State Controller by the county, not the amount imposed or collected by the county.
The California Supreme Court dismissed review, depublished and remanded the matter on October 24, 2007, in light of the enactment of Statutes 2007, chapter 302, section 3 (Chavez, 2007 Cal. Lexis 12780). (See fns. 10 & 13, infra.)
Before it dismissed review in Chavez, the specific issue before the Supreme Court was, “[w]hether the Court of Appeal erred in imposing a [Government Code] section 70372 state court construction penalty on petitioner’s various fines, penalties, and fees without remanding to the trial court to determine the amount by which the state court construction penalty should be reduced pursuant to section 70375.” (Chavez, 2007 Cal. Lexis 9490.)
We continue to believe our decision in Taylor is correct. That is, the penalty assessment to be imposed and collected under section 70372 is subject to reduction depending on the amount, if any, of the county courthouse construction fund under section 76100 or the transitional state court facilities construction fund under section 70401. (Taylor, supra, 118 Cal.App.4th at pp. 459-460.) Put more simply, the total amount of assessment imposed for courthouse construction, whether for the state fund or the local fund, is $5. If there is a local fund or a transitional fund, the $5 is reduced by the amount allocated to that fund.
Our interpretation is consistent with those who have been charged with implementing this bill and interpreting it. “The $5 county courts collect under Government Code Section 70372 is reduced on a dollar-for-dollar basis by the amount owed to the State Judicial Council for local courthouse construction (authorized under Government Code Section 76100).” (Marcus Nieto, California Research Bureau, Rep. for Assem. Com. on Pub. Safety (Feb. 2006) Who Pays for Penalty Assessment Programs in California? p. 11.) “The difference between the $5 that is authorized under Section 70372 for state courthouse construction and the amount remitted to the state for local courthouse construction, as authorized in Section 76100, varies. For example, if a county owes $2.40 for local courthouse construction, it pays the state $2.60 for state court construction, for a total of $5.” (Id., table 4--Example of a County Allocation of Funds for Penalty Assessments . . ., p. 12, 2d fn. in table 4.)
The State Controller’s office has issued guidelines that follow this same interpretation. The “Manual of Accounting and Audit Guidelines for Trial Courts” indicates the section 70372 penalty is the difference between the $5 and the amount of the local courthouse assessment under section 76100: “For example, for Alameda County, $2 is dedicated to the Local Courthouse Construction Fund; $5 [minus] $2 = $3 for the State Court Construction Penalty.” (Off. of State Controller, Manual of Accounting and Audit Guidelines for Trial Courts--Revision 20 (rev. Dec. 2006) appen. C, table 6, p. C-42; see also Off. of State Controller, Rep. on Assem. Bill No. 3000, Court Surcharge Distribution Guidelines (Mar. 2003) p. 9).
This interpretation is also supported by, and consistent with, the recent amendments to section 70375, subdivision (b)(1), apparently made in response to the Chavez decision. The statute as amended now states, “(b) In each county, the five-dollar ($5) penalty amount authorized by subdivision (a) of Section 70372 shall be reduced by the following: [¶] (1) The amount collected for deposit into the local courthouse construction fund established pursuant to Section 76100. If a county board of supervisors elects to distribute part of the county penalty authorized by Section 76000 into the local courthouse construction fund, the amount of the contribution for each seven dollars ($7) is the difference between seven dollars ($7) and the amount shown for the county penalty in subdivision (e) of Section 76000.” (§ 70375, subd. (b)(1), as amended by Stats. 2007, ch. 302, § 3, eff. Jan. 1, 2008.)
The final issue, then, is how the section 70372 penalty assessment should be assessed. Section 70372, subdivision (a) provides, in pertinent part: “[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses, including, but not limited to, all offenses, except parking offenses, as defined in subdivision (i) of Section 1463 of the Penal Code.” This language quite directly tracks the language of Government Code section 76000 and Penal Code section 1464. Accordingly, we believe Government Code section 70372 should be applied in the same manner and to the same fines, penalties and forfeitures as Government Code section 76000 and Penal Code section 1464. As relevant in this case, the only fine, penalty or forfeiture to which the Government Code section 70372 assessment applies is the $100 Health and Safety Code section 11372.5 laboratory analysis fee. (Taylor, supra, 118 Cal.App.4th at pp. 456, 460.)
The relevant portion of section 76000 provides: “[T]here shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code, except parking offenses subject to Article 3 (commencing with Section 40200) of Chapter 1 of Division 17 of the Vehicle 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.” (§ 76000, former subd. (a) [see now subds. (a)(1) & (2)].)
The relevant language of Penal Code section 1464 provides: “[T]here shall be levied a state penalty, in an amount equal to ten dollars ($10) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for 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.” (Pen. Code, § 1464, former subd. (a) [see now subd. (a)(1)].)
This interpretation is also consistent with the recent amendments to section 70372, subdivision (a)(3), which now states, “(3) This construction penalty does not apply to the following: [¶] (A) Any restitution fine. [¶] (B) Any penalty authorized by Section 1464 of the Penal Code or Chapter 12 (commencing with Section 76000) of Title 8. [¶] (C) Any parking offense subject to Article 3 (commencing with Section 40200) of Chapter 1 of Division 17 of the Vehicle Code. [¶] (D) The state surcharge authorized by Section 1465.7 of the Penal Code.” (§ 70372, subd. (a)(3), eff. Jan. 1, 2008.)
Because we cannot determine whether Sutter County has established a local courthouse construction fund under section 76100 or whether it has completed its transfer of facilities to the state, we are unable to determine whether the surcharge should be reduced and in what amount. Accordingly, we shall remand the matter to the trial court.
It appears from section 76000, subdivision (e), that Sutter County has imposed a $4 local courthouse construction fund.
DISPOSITION
The judgment is modified to reflect the imposition of a $100 drug laboratory analysis fee (Health & Saf. Code, § 11372.5), a state penalty assessment of $100 (Pen. Code, § 1464), a county penalty assessment of $70 (Gov. Code, § 76000), a state surcharge of $20 (Pen. Code, § 1465.7) and a court security fee of $80 (Pen. Code, § 1465.8). The case is remanded to the trial court for the limited purpose of determining the amount of the court facilities surcharge under Government Code sections 70372, 70375, 70401 and 76100.
The trial court shall prepare a new order granting probation, including the above fee and assessment amounts and its finding of the applicable amount of the local court construction fund for Sutter County, and forward a copy to the Sutter County probation department.
In all other respects, the judgment is affirmed.
We concur: RAYE, Acting P.J. MORRISON, J.