Opinion
F075875
09-27-2018
THE PEOPLE, Plaintiff and Respondent, v. PAUL ANTHONY SOTO, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF166332A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Snauffer, J.
-ooOoo-
A jury convicted appellant Paul Anthony Soto of possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1); possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 2); possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1); count 3); possession of drug paraphernalia, a misdemeanor (§ 11364; count 4); and possession of methamphetamine, a misdemeanor (§ 11377, subd. (a); count 5). !(CT: 197-207.)! In a separate proceeding, the court found true four prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and allegations that Soto had a prior conviction within the meaning of the "Three Strikes" law (Pen. Code, § 667, subds. (b)-(i)).
All further statutory references are to the Health and Safety Code, unless otherwise indicated.
On appeal, Soto contends the court erred in imposing penalty assessments against the laboratory and drug program fees it ordered him to pay in count 1. He also requests that we to review the in camera proceedings related to his Pitchess motion. We have conducted the requested review and found no error. Additionally, we conclude the court erred in imposing a laboratory fee and corresponding penalty assessments on Soto's conviction in count 1, modify the judgment accordingly, and affirm as modified.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTS
On November 18, 2016, Kern County Sheriff deputies assisted parole agents in arresting Soto, a parolee at large, in the garage of his grandmother's house in Bakersfield. During a search of Soto, an agent found in his pants pockets a glass pipe and a plastic bindle containing a white crystalline substance. Another agent found a loaded handgun on a work bench and five 12-gauge shotgun shells in a tool chest.
On December 12, 2016, the Kern County District Attorney filed an information charging Soto with the offenses of which he was convicted, and the enhancements and Three Strikes allegations found true by the court.
On May 10, 2017, the jury rendered its verdict in this matter and the court found the enhancements and prior strike allegations true, as noted above.
On June 21, 2017, the court struck one of the prior prison term enhancements and sentenced Soto to an aggregate 11-year prison term: a doubled term of eight years on his possession of methamphetamine while armed conviction, three one-year prior prison term enhancements, a concurrent 16-month term on his felon in possession of ammunition conviction, and stayed terms on the remaining counts. Additionally, in count 1, the court imposed a $50 laboratory fee and $155 in penalty assessments, and a $100 drug program fee and $310 in penalty assessments on that fee.
DISCUSSION
The Laboratory and Drug Education Fees and Penalty Assessments
Soto contends the court erred in imposing the penalty assessments attached to the laboratory fee (§ 11372.5) and the program fee (§ 11372.7) because these fees are not "fines, penalties, or forfeitures." In support of this contention he relies on People v. Vega (2005) 130 Cal.App.4th 183 (Vega), People v. Moore (2015) 236 Cal.App.4th Supp. 10, People v. Watts (2016) 2 Cal.App.5th 223 (Watts), People v. Webb (2017) 13 Cal.App.5th 486 (Webb), and People v. Martinez (2017) 15 Cal.App.5th 659 (Martinez). Respondent contends the trial court properly imposed penalty assessments on each of these fees.
Preliminarily, we note that the only offenses for which a laboratory analysis fee may be imposed are those listed or enumerated in section 11372.5, subdivision (a). (People v. Myles (2016) 6 Cal.App.5th 1158, 1160.) Further, since possession of a controlled substance while armed (§ 11370.1) is not listed in section 11372.5, the trial court lacked jurisdiction to impose a lab fee and penalty assessments on Soto's conviction for that offense in count 1. (Ibid.) Therefore, we will strike the laboratory fee and the corresponding penalty assessments.
Section 11372.7, subdivision (a), however, provides that "each person who is convicted of a violation of [Chapter 6 of the Health and Safety Code] shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense...." Since section 11370.1 is part of Chapter 6 of the Health and Safety Code, the court properly imposed a fine of $150 on Soto's conviction of violating this section.
Further, penalty assessments apply to any "fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses" and increase such fines, penalties, or forfeitures by a specified amount. (E.g., Pen. Code, § 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).) In People v. Sierra (1995) 37 Cal.App.4th 1690, 1696 (Sierra), we concluded that the program fee (§ 11372.7) is a fine or penalty to which penalty assessments are applicable.
Recently, in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz) the Supreme Court held that the laboratory fee and drug program fee were punishment for purposes of the conspiracy statute (Pen. Code, § 182, subd. (a)). (Ruiz, at p. 1103-1104.) Although the court declined to decide whether these fees were subject to penalty assessments (Id. at p 1122), it nevertheless disapproved Webb, Watts, Vega and Martinez, supra, 15 Cal.App.5th 659 to the extent they were inconsistent with the court's holding. (Ruiz, supra, at p. 1122, fn. 8.) Thus, in accord with our decision in Sierra, we conclude that the drug program fee is a fine or penalty, that it is subject to penalty assessments, and that the trial court properly imposed penalty assessments on this fee.
The Pitchess Motion
On January 31, 2017, defense counsel filed a Pitchess motion seeking discovery of records relating to complaints involving dishonesty, false statements or fabrication of charges as to one of the officers involved in Soto's arrest.
On February 28, 2017, the trial court granted the motion with respect to discovery of records relating to dishonesty and false reports. The court then conducted an in camera hearing and found there were no discoverable records.
" 'A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.' " (People v. Yearwood (2013) 213 Cal.App.4th 161, 180; see People v. Mooc (2001) 26 Cal.4th 1216, 1220 (Mooc) [California Legislature codified Pitchess motions].) "[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant." (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines), citing Evid. Code, § 1043, subd. (b).) "Good cause for discovery exists when the defendant shows both " ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' " (Gaines, supra, 46 Cal.4th at p. 179.)
"If the trial court concludes the defendant has ... made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion[]" (Mooc, supra, 26 Cal.4th at p. 1226) and "the court must review the requested records in camera to determine what information, if any, should be disclosed" (Gaines, supra, 46 Cal.4th at p. 179). "Subject to statutory exceptions and limitations ... the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' " (Mooc, supra, at p. 1226, quoting Evid. Code, § 1045, subd. (a).) "A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion." (People v. Hughes (2002) 27 Cal.4th 287, 330.)
We have reviewed the full set of transcripts, files, and statements relevant to this issue. The trial court complied with the required Pitchess procedures. A custodian of records was present and placed under oath. The custodian testified he found and provided responsive documents. The court independently reviewed the relevant portion of the personnel file, which had been provided. Upon review of the records, the court noted that the documents did not contain any discoverable information. The proceedings were stenographically recorded. (Mooc, supra, 26 Cal.4th at p. 1229.) We conclude the trial court did not abuse its discretion by deciding not to disclose any records.
DISPOSITION
The judgment is modified to strike the $50 laboratory fee the court imposed pursuant to section 11372.5 on Soto's conviction for possession of methamphetamine while armed conviction in count 1 and the corresponding penalty assessments totaling $155. The trial court is directed to issue an amended abstract of judgment that incorporates this modification and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.