PEOPLE v. RUIZ

Appellant’s Petition for Review

Cal.June 29, 2016

8235556 COP: 2s IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CRC 8,25(b) PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, FILED. V. JUN 2 9 2016 FELIX CORRALRUIZ, Frank A. McGuire Clerk Defendant and Appellant. Deputy Court of Appeal, Fifth Appellate District, No. F068737 Tulare County Superior Court No. VCF241607J Hon. Joseph Kalashian, Judge PETITION FOR REVIEW ELIZABETH CAMPBELL Attorney at Law State Bar No. 166960 PMB 334 3104 O Street Sacramento, CA 95816 (530) 786-4108 campbell!166960@gmail.com Attorney for Appellant TABLE OF CONTENTS PETITION FOR REVIEW 1 QUESTION PRESENTED AND NECESSITY FOR REVIEW 2 1. Is a defendant who has obtained a certificate of probable cause estopped under People v. Hester (2000) 22 Cal.4th 290 from challenging a plea agreement wherethe plea included an unauthorized enhancement under Penal Code section 186.22, subdivision (b)(1), and the People have conceded that the sentence was unauthorized? 2 May drug andlab fees be imposed under Health and Safety Code sections 11372.5 and 11372.7 where a defendantis not convicted of any of the offenses specified underthosesections, but only of conspiracy to commit a specified offense? 2 STATEMENT OF THE CASE AND FACTS 5 ARGUMENT 9 I. THE BARGAINED-FOR TERM WAS UNAUTHORIZED AND APPELLANT WAS NOT ESTOPPED FROM CHALLENGINGIT ON APPEAL 9 A. Procedural Background 9 B. The Sentence Imposed Was Unauthorized, and Appellant Should Be Permitted to Withdraw His Plea 10 TABLE OF CONTENTS C. This Issue Is Not Forfeited 12 Il. THE FEES AND ASSESSMENTS IMPOSED UNDER HEALTH AND SAFETY CODE SECTIONS 11372.5 AND 11372.7 WERE UNAUTHORIZED AND SHOULD BE STRICKEN; COUNSEL’S FAILURE TO OBJECT DEPRIVED APPELLANT OF EFFECTIVE ASSISTANCE OF COUNSEL 16 CONCLUSION 21 CERTIFICATE OF WORD COUNT 21 EXHIBIT A 22 ii TABLE OF AUTHORITIES Page Cases People v. Alford (2007) 42 Cal.4th 749 ...............0.. 19, 20 People v. Baries (1989) 209 Cal.App.3d 313. ................ 11 People v. Batman (2008) 159 Cal.App.4th 587 ........ 18, 19, 20 People v. Dotson (1997) 16 Cal.4th 457 ....... 0.2... 0. eee 12 People v. Fleury (2010) 182 Cal.App.4th 1486 ............ 19, 20 People v. Gonzales (2001) 87 Cal.App.4th1.................. 2 People v. Hester (2000) 22 Cal.4th 290................. passim People v. High (2004) 119 Cal.App.4th 1192 .......... 18, 19, 20 People v. Hoffard (1995) 10 Cal.4th 1170 ...............0.. 12 People v. Johnson (1995) 36 Cal.App.4th 1351 .............. 11 People v. Miller (2012) 202 Cal.App.4th 1450 ................ 3 People v. Orozco (2010) 180 Cal.App.4th 1279 .............. 12 People v. Ramirez (1995) 33 Cal.App.4th 559 ............... 11 People v. Sharett (2011) 191 Cal.App.4th 859 ............. 3,17 People v. Sharret (2011) 191 Cal.App.4th 859 ............... 16 People v. Superior Court (2014) 223 Cal.App.4th 567...... 11,13 People v. Vega (2005) 180 Cal.App.4th 183 ...... 3, 16, 17, 18, 20 Strickland v. Washington (1984) 466 U.S. 668 .............. 16 Codes Health & Saf. Code, § 11372.5, subd. (a) ................0.. 20 Health & Saf. Code, § 11379, subd. (a) .................... 15 Pen. Code, § 182 2... . 0...ceeee ees passim Pen. Code, § 186.22 .. 0...eeee ee passim Pen. Code, § 187 1.0... 0... ccee ee eee eee es 6 Pen. Code, § 246 2.0... 0. occeceee eens 7 Pen. Code, § 654 2.0.0.0... ccc eens 3, 18, 14, 17 Pen. Code, § 664/187 ...... 0.0... ccc cee eee 6, 7,9, 15 Pen. Code, § 667.5 .. 0.0... ccceee eens 7,15 Pen. Code, § 1465.8 1.0... eeeee eee 19, 20 Pen. Code, § 12022.53 2...0.eeeee passim iii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, F068737 Vv. Tulare County Superior Court FELIX CORRAL RUIZ, No. VCF241607J Defendant and Appellant. PETITION FOR REVIEW Pursuant to California Rules of Court, rule 8.500(a), appellant Felix Corral Ruiz hereby petitions for review of the May 19, 2016, opinion of the Court of Appeal, Fifth Appellate District, affirming his conviction and sentence. A copy of the opinion is attached to this petition as Exhibit A. Appellant requests that this court grant review, and uponfull consideration, remand with an order permitting him to withdrawhisplea. QUESTION PRESENTED AND NECESSITY FOR REVIEW This petition presents the following important question of statewide significance and constitutional magnitudefor the court’s resolution: 1. Is a defendant who has obtained certificate of probable cause estopped under People v. Hester (2000) 22 Cal.4th 290 from challenging a plea agreement wherethe plea included an unauthorized enhancement under Penal Code section 186.22, subdivision (b)(1), and the People have conceded that the sentence was unauthorized? May drug andlab fees be imposed under Health and Safety Code sections 11372.5 and 11372.7 where a defendant is not convicted of any of the offenses specified under those sections, but only of conspiracy to commit a specified offense? First, the Court of Appeal here agreed at the outset that the ten-year term under Penal Codesection 186.22 was unauthorized, because wherea person is sentenced to an enhancement term under Penal Code section 12022.53 under circumstances where the person did not personally use or discharge the firearm,the court cannot also impose a gang enhancement. (Pen. Code, § 12022.58, subd. (e); see also People v. Gonzales (2001) 87 Cal.App.4th 1, 12, fn. 2.) Section 12022.53, subdivision (c), applies on its face to those who “personally and intentionally” discharge a firearm. (Pen. Code, § 12022.53, subd. (c).) Appellant did not admit personal and intentional discharge of a firearm, however; he admitted only that a principal personally discharged a firearm. (RT 187-188.) The appellate court agreed with the Attorney General, however, that the issue wasforfeited by the plea bargain in this case. (Slip opn., pp. 4-11.) The Fifth District relied on this court’s holding in People v. Hester, supra, 22 Cal.4th 290, extending that holding to bar a challenge to the unauthorized sentence in the instant case. In so holding, the court extended the ruling in Hester —a narrow holding that rested in part on the unique circumstances of a claim under Penal Codesection 654 — to situations in which a defendant unknowingly enters into a plea bargain to an unlawful sentence, and thenis estopped from challenging that unlawful plea agreementon appeal. (Cf. People v. Miller (2012) 202 Cal.App.4th 1450, 1452-1453.) This court should grant review to clarify the scope of the Hester rule. Second, the Court of Appeal identified a split of authority on the question of whether drug and lab fees under Health and Safety Code sections 11372.5 and 11372.7 constitute “punishment.” Rejecting the on-point holding of the court in People v. Vega (2005) 130 Cal.App.4th 183, which squarely held that these fees cannot be imposed wherethe only conviction is for conspiracy, the court here opted to follow the holding in People v. Sharett (2011) 191 Cal.App.4th 859, where the court under distinguishable circumstances found that these fees are “punishment.” From this, the court here concluded that they were properly imposed under Penal Codesection 182, subdivision (a). (Slip opn., pp. 13-16.) This court should grant review to resolve this explicit split of authority and ensure statewide uniformity in imposition of fees under Health and Safety Code sections 11372.5 and 11372.7. STATEMENT OF THE CASE AND FACTS Information gleaned from surveillance and court-approved electronic interception between the dates of July 27, 2010, and July 29, 2010, showed that Felix Corral Ruiz received phone calls from Joe Dominguez regardingactivities of a Norteno street gang. (Conf. CT 13.)! Ruiz appeared to be higher ranking in the gang than Dominguez, and on July 27, 2010, following a shooting of Norteno gang membersbya rival gang, Ruiz and Dominguez were heard discussing plansfor a retaliatory shooting. (Conf. CT 13.) On that evening, Dominguez was overheardtelling Ruiz about a heavy police presence in the area, and Ruiz told Dominguez to call off the retaliatory shooting until the next day. (Conf. CT 13.) Calls were then intercepted from Domingueztelling other gang memberstocall off the shooting that night. (Conf. CT 13.) The following day, Dominguez wasoverheardtelling Ruiz the status of the plans for the shooting, and reporting that one of their gang membershadbeen shot that morning. Ruiz told Dominguez to get more information and report back. (Conf. CT 13.) Dominguez wasoverheradtelling another gang memberthat he would be meeting with Ruiz later that day to see what he wanted done. (Conf. CT 13.) On July 28, 2010, several Norteno gang members shot different caliber weapons toward an apartment complex where 1«CT” refers to the clerk’s transcript on appeal; “RT” refers to the reporter’s transcript. The confidential clerk’s transcript will be designated as “Conf. CT.” rival gang members were knownto congregate. A 59-year-old person wasshot in the chest, and a 17-year-old person was shot in the leg. (Conf. CT 13.) Department of Justice crime reports concluded that Dominguez played a dominantrole over other Norteno gang members whowereresponsible for the shooting. (Conf. CT 13.) Dominguez gaveinstructions to his gang members to obtain weapons and ammunition,and to recruit other gang membersto fire distraction rounds to divert law enforcementofficers from the intendedsceneofthe crime. (Conf. CT 13.) DepartmentofJustice information indicated that Dominguez reported to Ruiz within the hierarchy of the gang and that Ruiz played a dominantrole over Dominguez. (Conf. CT 14.) On December 18, 2012, Tulare County information number VCF241607D charged appellant Ruiz and Dominguez’ with multiple felonies. (CT 756-787.) Count one charged both defendants with conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1); Pen. Code, § 187) between the dates of July 27 and July 29, 2010. (CT 760.) This count included special allegations under Penal Codesection 12022.53, subdivisions(c), (d), and (e)(1), and Penal Code section 186.22, subdivisions (b)(1)(C) and (b)(5). (CT 760-761.) Counts two and three charged them with attempted willful, deliberate, and premeditated murder (Pen. Code,§ 664/187) of K.S. and D.S., respectively, on the same dates, with the samespecial allegations. (CT 762-765.) Count four charged “Dominguezis not a party to this appeal. 6 them with shooting at an inhabited dwelling (Pen. Code, § 246), with the samefirearm special allegations, as well as a gang allegation under Penal Codesection 182.22, subdvision (b)(4). (CT 766.) Counts five and six charged them with conspiracy to violate Health and Safety Code sections 11379, subdivision (a), and 11378, respectively, with special allegations under Penal Code section 186.22, subdivision (b)(1)(a). (CT 767-770.) These two counts were alleged to have occurred on or about June1, 2010. (CT 767-769.) Count seven charged appellant with participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) on or about June 1, 2010. (CT 770-771.)? The information further alleged as to each count that appellant had served a prior prison term (Pen. Code, § 667.5, subd. (b)) on March 5, 2003,for a violation of Health and Safety Code section 11378. (CT 761-771.) On August 15, 2013, appellant agreed to plead no contest to counts two and three, two counts of attempted murder (Pen. Code, § 664/187, subd. (a)), as well as countfive, conspiracy (Pen. Code, § 182, subd. (a)(1)). (CT 864-865.) The prosecution agreedto strike the allegation that the attempted murder counts werewillful, deliberate, and premeditated. (RT 187.) He admitted special allegations under Penal Codesections 186.22, subdivision (b)(1)(©), and 12022.53, subdivision (c), as to counts two and three. (CT 865.) He admitted the prior prison term under Penal Code section 3 Counts eight through twenty-six applied only to the codefendant. (CT 771-787.) 667.5, subdivision (b). (CT 865.) As part of the plea agreement, appellant agreed to waivehis presentencecredits and his right to appeal.(RT 183-184.) The prosecution also agreed to dismiss a pending misdemeanorchild endangermentcharge in Tulare County case number VCF207169. (RT 191.) On September 26, 2013, the court denied probation and sentenced appellant to the lower term of five years for count two, with an additional 20 years under Penal Codesection 12022.53, subdivision (c), and an additional ten years under Penal Code section 186.22, subdivision (b)(1)(c). (CT 868, RT 203.) The court imposed concurrent time on counts three and five and stayed the sentence on theprior prison term. (CT 868, 870, RT 203-204.) The court imposed variousfines andfees, including a total of $600 under Health and Safety Code sections 11372.5 and 11372.7. (Confidential CT 24-25, RT 204.) Appellant filed notice of appeal on January 8, 2014, and the court granted his request for certificate of probable cause. (CT 873-874.) On May 19, 2016, the Court of Appeal affirmed the judgment with minor modifications to the abstract ofjudgment. ARGUMENT I. THE BARGAINED-FOR TERM WAS UNAUTHORIZED AND APPELLANT WAS NOT ESTOPPED FROM CHALLENGING IT ON APPEAL The plea agreementin this case called for a stipulated term of 35 years in state prison. (RT 183.) Appellant agreed to waive his right to appeal andto waiveall accrued timecredits. (RT 183.) At sentencing, the court reached the 35-year term by imposing an unauthorized ten-year term for an enhancement under Penal Code section 186.22, subdivision (b)(1). (RT 203.) Because this term was statutorily barred underthe circumstancesof this case (see Pen. Code, § 12022.53, subd. (e)(2)), appellant should be permitted to withdrawhis plea. The Court of Appeal, while finding that the enhancement was indeed unauthorized and that appellant did not knowingly waivehis right to challenge it on appeal, nonetheless concluded that the claim wasforfeited by the termsof the stipulated plea. (Slip opn., pp. 4-11.) The Court of Appeal’s holding was erroneous, and this court should grant review to resolve the issue. A. Procedural Background Appellant admitted two counts of attempted murder(Pen. Code, § 664/187), two allegations that “a principal personally and intentionally discharged a firearm, to wit, a handgun,in the commission” of those offenses, under Penal Code section 12022.53, subdivision (c),* and two allegations that the attempted murders were committed for the benefit of a criminal street gang. (RT 187- 188.) He also pled no contest to a charge of conspiracy to violation Health and Safety Code section 11379, but as part of the plea agreementdid not admit the charged gangallegation as to that count. (RT 189.) The parties neither stated nor stipulated to a factual basis at the time of the plea agreement, but the facts as described in the probation report unambiguously describe appellant’s conduct as that of an aider and abettor, with no suggestion that he personally used or discharged a firearm at any time. (Conf. CT 12-14.) The court sentenced appellant to the low term offive years for attempted murder, with a consecutive term of twenty yearsfor the Penal Code section 12022.53, subdivision (c), allegation, and an additional ten years for the section 186.22, subdivision (b)(1) allegation. (RT 203.) The court imposed concurrent termsfor the remaining counts. (RT 204.) B. |The Sentence Imposed Was Unauthorized, and Appellant Should Be Permitted to Withdraw His Plea The ten-year term under Penal Codesection 186.22, subdivision (b), was unauthorized, because where a person is “As to thefirst of the attempted murder counts, the court actually phrased the allegation as “a handgun was used by a principal in the commission of that offense,” but specified that the allegation was under Penal Code section 12022.53, subdivision (c). (RT 187; emphasis added.) 10 sentenced to an enhancement term under Penal Codesection 12022.53 under circumstances wherethe person did not personally use or dischargethefirearm, the court cannot also impose a gang enhancement. Section 12022.53, subdivision (c), applies on its face to those who “personally and intentionally” discharge a firearm. (Pen. Code, § 12022.53, subd. (c).) Appellant did not admit personal and intentional discharge of a firearm,however; he admitted only that a principal personally discharged a firearm. (RT 187-188.) The Court of Appeal, as well as respondent, agreed that the enhancement was unauthorized. (RB 6, Slip opn.,p. 4.) Where a court imposesa sentence that is unauthorized by law, the sentence cannot stand evenif it is the result of a negotiated plea. (Cf. People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567; see also People v. Ramirez (1995) 33 Cal.App.4th 559, 574; People v. Baries (1989) 209 Cal.App.3d 313.) The appropriate remedy on appealis to reverse the conviction and remand with instructions to allow appellant to withdraw his plea. (Id., at p. 319.) “To be valid, guilty pleas must be based upon a defendant’s full awarenessof the relevant circumstances andthelikely consequencesofhis action. [Citations.]” (People v. Johnson (1995) 36 Cal.App.4th 1351, 1856.) Further, the defendant must be aware of “the actual value of any commitments made to him by the court, prosecutor, or his own counsel... .’ [Citation.]” (bid.) 11 Althoughtheplea in this case did not specify how the court would reach the agreed upon 35-year term,it is plain that under the law and thefacts of the case, the sentence as imposed was unauthorized. Appellant should be permitted to withdraw his plea. C. This Issue Is Not Forfeited Aspart of the plea agreement, appellant waived accrued time credits and waivedhis right to appeal. (RT 183.) Nonetheless, he filed a notice of appeal and the court issueda certificate of probable cause to permit him to raise issues regarding wiretaps. (CT 874.) The Court of Appeal correctly held that the appeal waiver could not be read to encompassanyerrors that occurred after the waiver was taken,such aserrors that occurred at sentencing. (Slip opn., p. 4, see also People v. Orozco (2010) 180 Cal.App.4th 1279, 1285.) The court furthercorrectly held that the trial court’s handwritten notation on the order grantingthecertificate of probable cause did not limit the issues that can be raised on appeal. (Slip opn., p. 4; see also People v. Hoffard (1995) 10 Cal.4th 1170, 1177.) The court incorrectly concluded, however, that appellant’s contention was forfeited by the plea. An unauthorized sentence is subject to correction on appeal evenif there was no objection in the court below. (People v. Dotson (1997) 16 Cal.4th 457, 554, fn. 6.) The plea here wasfor a specified term, but did not indicate how the court wasto reach that agreed-upon term. Not only was the term imposed 12 unauthorized, it does not appear that the agreed-upon term can be lawfully imposed. Thus, the proper remedyis to permit the defendant to withdrawhis plea. (Cf. People v. Superior Court (Sanchez), supra, 223 Cal.App.4th 567.) In finding that the issue wasforfeited, the Court of Appeal relied on this court’s decision in People v. Hester (2000) 22 Cal.4th 290. The decision in Hester, however, addressedtheissue of raising a Penal Codesection 654 challengefor thefirst time on appeal following a plea agreement. (People v. Hester, supra, 22 Cal.4th at p. 294.) A claim under Penal Codesection 654 is governed by a different body of law than the instant claim, and raising such a claim forthefirst time on appeal following a plea bargain is specifically precluded by Rule 4.412, subdivision (b), of the California Rules of Court: By agreeing to a specified prison term personally and by counsel, a defendant whois sentenced to that term or a shorter one abandonsany claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreementis recited on the record. (Rule. 4.412(b).)° In Hester, the Court of Appeal had held that a prior version of rule 4.412(b) wasinvalid to the extent that it permitted trial courts to violate section 654 in the absenceof an implicit or explicit waiver by the defendant. (People v. Hester, supra, 22 Cal.4th at p. 294.) This court reversed and upheld the validity of Rule 4.412(b). 'Formerly Rule 412(b), and so referred to in Hester. 13 Thedistinction between claims raised under Penal Code section 654 and other types of unauthorized sentencesis underscored by the difference between Rule 4.412(b) and 4.412(a). The latter states: It is an adequate reason for a sentence or other disposition that the defendant, personally and by counsel, has expressed agreementthat it be imposed and the prosecuting attorney has not expressed an objection to it. The agreementand lack of objection must be recited on the record. This section does not authorize a sentence that is not otherwise authorized by law. Subdivision (a), then, states the general law, that a plea agreementdoes not automatically validate an otherwise unauthorized term,while subdivision (b) states an exception to that rule for claims under Penal Codesection 654. The court in Hester noted that the rule permitting a challenge to an unauthorized sentence on appeal even in the absence of an objection below does not apply where the defendant has pleaded guilty in return for a specified sentence. (People v. Hester, supra, 22 Cal.4th at p. 295.) “The rationale behind this policy is that defendants who havereceived the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.]” Ibid.) Appellant, however, is not asking this court to reducehis sentence. He requests a remandto determine whether, as the Attorney General suggested in the Court of Appeal, he can be lawfully sentenced within the termsof the plea bargain. If that 14 cannot be accomplished, he should be permitted to withdraw his plea. (Cf. People v. Hester, supra, 22 Cal.4th at p. 296.)° This court should grant review and, uponfull consideration, remand so that the trial court can determine whethera lawful sentence maybe reachedthat is agreeable to the People and does not exceed the termsof the plea agreement. If this cannot be accomplished, the court should permit appellant to withdraw his plea. °In suggesting a remand, respondent did not suggest a method by which appellant could lawfully be sentenced to the agreed upon term.It does not appear to appellant that a 35-year term can lawfully be crafted given the charges to which appellant pled; it appears that the maximum term available is 33 years, 4 months. (See Pen. Code, § 667/187, subd. (a); Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379, subd. (a)); Pen. Code, § 12022.53, subd.(c); Pen. Code, § 667.5, subd. (b).) 15 IT. THE FEES AND ASSESSMENTS IMPOSED UNDER HEALTH AND SAFETY CODE SECTIONS 11372.5 AND 113872.7 WERE UNAUTHORIZED AND SHOULD BE STRICKEN; COUNSEL’S FAILURE TO OBJECT DEPRIVED APPELLANT OF EFFECTIVE ASSISTANCE OF COUNSEL At sentencing, the court imposed $600 in fees and penalty assessments under Health and Safety Code sections 11372.5 and 11372.7. (RT 204; see Conf. CT 24.)’ On appeal, appellant argued that this fee was unauthorized because although appellant pleaded no contest to conspiracy to violate Health and Safety Code section 11379, the fees authorized by Health and Safety Code sections 11372.5 and 11372.7 do not apply to a conspiracy conviction. (See People v. Vega (2005) 130 Cal.App.4th 183, 194.) Appellant further argued that counsel’s failure to object to the unauthorized fees deprived him of effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052; 80 L.Ed.2d 674 |.) The Court of Appeal declined to follow Vega and insteadfollowed the conflicting holding in People v. Sharret (2011) 191 Cal.App.4th 859. Because Sharret was wrongly decided, this court should grant review and, uponfull consideration, strike the unauthorizedfines. "The court ordered appellant to pay $600 “as set forth in Paragraph 8 of Page 16 of the probation report.” (RT 204.) This pageofthe probation report is in the appellate record at page 24 of the Confidential Clerk’s Transcript (“Conf. CT”) and refers to fees and assessments underthe abovecodesections. 16 Health and Safety Code section 11872.5 assesses a “criminal laboratory analysis fee” on defendants whoare convicted of specified drug offenses. Health and Safety Code section 11372.7 likewise imposes a “drug program fee” on defendants convicted of specified offenses. Neither statute mentions conspiracy convictions. (Cf. People v. Vega, supra, 130 Cal.App.4th at p. 194.) Although Penal Codesection 182, subdivision (a), holds that where criminal defendants have been convicted of conspiring to commit a felony “they shall be punished in the same mannerand to the same extentas is provided for the punishmentof that felony,” the Vega court found this unpersuasive, because the fees imposed under Health and Safety Code section 11372.5 are not “nunishment.” (People v. Vega, supra, 130 Cal.App.4th at p. 194.) The court thus held that, where defendants were convicted only of conspiracy to commit drug offenses, but not of the target offenses themselves, the criminal laboratory analysis fee was unauthorized. (Ibid.) The Vega analysis applies equally to the drug program fee. Thus, these fees and assessments are unauthorized and should bestricken. Although the Court of Appeal opted to follow the decision in Sharett rather than the more pertinent decision in Vega, the Vega opinion makes the more persuasive case. In Sharett, the Court of Appealheld that a Health and Safety Code section 11372.5 laboratory analysis fee constitutes punishment and must be stayed under Penal Codesection 654 if the count to which it is attachedis so stayed. (People v. Sharett, supra, 191 Cal.App.4th at 17 p. 869.) The court was not presented with the issue of whether fees under Health and Safety Code sections 11372.5 and 11372.7 should be imposed where the defendantis convicted of a drug- related conspiracy. Certainly, penalties and assessments may qualify as punishment,if they have a punitive effect. (People v. High (2004) 119 Cal.App.4th 1192, 1198.) But the fees and assessments under Health and Safety Code sections 11372.5 and 11372.7 do not have such aneffect, as the court found in Vega. In High, the appellate court found that retroactive application of Government Codesection 70372 violated the ex post facto clause, because that “penalty is calculated on ‘everyfine, penalty, or forfeiture imposed and collected by the courts for criminal offenses’ at the rate of $ 5 for every $ 10. The penalty imposedtracks the seriousness of the underlying offense and its base penalty. The prospect of its imposition therefore has a similar deterrenteffect to that of punitive statutes generally.” (People v. High, supra, 119 Cal.App.4th at p. 1198.) The court found that the penalty in section 70372 thus promoted “the traditional aims of punishment—retribution and deterrence.” (Jbid., internal quotation marks omitted.) Moreover, the Legislature had labeled the fee imposed undersection 70372 a “penalty,” indicating that it was intended to be punitive. (Ud. at p. 1199.) Similarly, in People v. Batman (2008) 159 Cal.App.4th 587, the court found that the DNA penalty imposed under Government Code section 76104.6 was subject to the constitutional ban on ex 18 post facto laws. The court found that the section 76104.6 penalty was similar to the penalty at issue in High, and noted in particular that: The statute denominates the assessment a penalty:it applies to every criminalfine, penalty, and forfeiture; it is assessed in proportion to the defendant's criminal culpability; andit is to be collected and processed using the samestatute that authorizes the state penalty assessment.In addition, the assessmentwill be used primarily for law enforcement purposes. (People v. Batman, supra, 159 Cal.App.4th at p. 590.) By contrast, in People v. Fleury (2010) 182 Cal.App.4th 1486, the court found that the $30 courtfacilities assessment under Government Codesection 70373 did not constitute punishment, and could thus be applied retroactively. (People v. Fleury, supra, 182 Cal.App.4th at p. 1492.) The factors relied on by the court in distinguishing High were that the aim of the statute was nonpunitive,i.e., to maintain funds for courtfacilities, and that the Legislature had labeled the fee in that statute as an “assessment” rather than as a “penalty.” (Ibid.) The court in Fleury relied on the California Supreme Court holding in People v. Alford (2007) 42 Cal.4th 749, which found that the court security fee in Penal Code section 1465.8 could be imposedretroactively without running afoul of the ex post facto clauses of the state and federal constitutions. (People v. Alford, supra, 42 Cal.4th at pp. 757-758.) The Supreme Court, like the court in High, Batman,and Fleury, looked to the intent and language of the statute to determine that the purpose of Penal 19 Code section 1465.8 was not to impose punishment, but to fund court security. ([bid.) The court noted that the amountofthe fee is not dependent upon theseriousnessof the offense, that it applies to civil as well as criminalcases, and that its purpose was to increase revenues rather than to impose punishment. (/bid.) The fees imposed under Health and Safety Codesections 11372.5 and 11372.7 are more similar in every respect to the penalties at issue in Fleury and Alford than to the fees in High and Batman. Eachstatute refers to the imposition as a “fee” rather than as a “penalty”or a “fine.” (See Health & Saf. Code, § 11372.5, subd. (a); § 11372.7, subd. (a).) Moreover, unlike the penalties in Batman and High. the amountof the penalty does not increase with the seriousness of the offense. Finally, the aim of each fee appears to be nonpunitive. Section 11372.5, subdivision (b), indicates that the purposeof the fees is to fund drug laboratories and to provide for training of technicians. Section 11372.7, subdivision (c), describes the purpose of that section as providing for drug abuse education programs. This court should follow the holding in People v. Vega and hold that fees and assessments under Health and Safety Code sections 113872.5 and 11372.7 may not be imposed upon convictions of conspiracy. Appellant wasentitled to a lawful sentence andto effective assistance of counsel at sentencing. This court should grant review and, upon full consideration, strike the drug fees and assessments. 20 CONCLUSION For the foregoing reasons, appellant requests that this court grant review, and upon full consideration, remand the matter with an order permitting appellant to withdraw hisplea, or in the alternative, strike the drug fees and assessments. Dated: June 26, 2016 Respectfully submitted, ELIZABETH CAMPBELL Attorney at Law State Bar No. 166960 1215 K Street 17th Floor Sacramento, CA 95814 (916) 444-8538 Attorney for Appellant As required by California Rules of Court, Rule 8.504(d)(1), I certify that this petition contains 4,545 words, as determined by the word processing program usedto createit. Elizabeth Campbell Attorney at Law 21 EXHIBIT A Filed 5/19/16 P. v. Ruiz CA5 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 notcertified 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 8.11715. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F068737 Plaintiff and Respondent, (Super. Ct. No. VCF241607J) Vv. FELIX CORRALRUIZ II, OPINION Defendant and Appellant. APPEALfrom a judgmentof the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, MichaelP. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent. -00000- H e c h e sta gs + R R INTRODUCTION Appellant Felix Corral Ruiz II, was tried before a jury with his codefendant, Joe Valdez Dominguez.! Before the trial completed, appellant negotiated a plea agreement for a sentence of 35 years in state prison. The parties agreed he would waivehisrightto appeal. No agreementor discussion occurred on the record regarding how the 35 years would be calculated. Appellant raises three issues on appeal. First, the parties agree, as do we,that the court imposed an unauthorized sentence in calculating the 35-year term. As result, appellant seeks an opportunity to withdraw his plea. Respondent objects, contending appellant is estopped from challenging the sentence following the plea bargain. Because appellant received the benefit of his bargain, we agree with respondentthat appellantis estopped from nowchallenging the sentence despite the sentencing error. Regarding appellant’s two other contentions, we disagree that the fees and assessments imposed under Health and Safety Code sections 11372.5 and 11372.7 were unauthorized and should be stricken. However, we agree that the abstract ofjudgment contains clerical errors. We ordercorrection of the abstract but otherwise affirm. BACKGROUND The facts of appellant’s criminal conduct are not material to his contentions on appeal. He was charged by information with seven counts: conspiracy (Pen. Code, § 182, subd.(a)(1)*; counts 1, 5 & 6); attempted murder(§§ 664/187, subd.(a); counts 2 & 3); shooting at an inhabited dwelling (§ 246; count 4); and participation in a criminal street gang (§ 186.22, subd. (a); count 7). The following special allegations were alleged: appellant had a prior felony conviction (§ 667.5, subd. (b); counts 1-7); a principal personally and intentionally 1 Dominguezis not a party to this present appeal. 2 All future statutory references are to the Penal Code unless otherwise noted. discharged a firearm at two victims (§ 12022.53, subds. (d) & (e)(1); counts 1-4); and the crime was punishablein the state prison for life and was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(5), (b)(1)(C) & (b)(1)(A); counts 1-3, 5 & 6). Appellant pleaded no contest to two counts of attempted murder (§§ 664/187; counts 2 & 3). Regarding both counts, andas part of the plea agreement, he pleaded no contest that (1) a handgun was personally and intentionally discharged by a principal in the commission of the offenses (§ 12022.53, subd. (c)); and (2) the crimes were committed for the benefit of, at the direction of, or in association with a criminalstreet gang (§ 186.22, subd. (b)(1)(C)). He also pleaded no contest to a charge of conspiracy to transport a controlled substance (§ 182, subd. (a)(1); Health & Saf. Code, § 11379; count 5). The four remaining counts against him were dismissed. At the change ofplea hearing, the court advised appellant of his various rights, but the court never asked appellant if he understood he was waiving his right to appeal. For count 2, appellant was sentenced to state prison for a total of 35 years consisting of five years for the attempted murder, plus an additional and consecutive 20 years for the firearm enhancementpursuant to section 12022.53, subdivision (c), and an additional and consecutive 10 years for the gang enhancement pursuantto section 186.22, subdivision (b)(1)(C). Count 3 was sentenced identically as count 2, which wasto run concurrently. For count 5, he was sentenced concurrently to state prison for three years. Various fees and fines were imposed.3 3 Appellant was also sentenced in companion case No. VCF207169 to total of six years in state prison to run concurrently to the instant matter. As discussed in section III below, the abstract ofjudgment, whichlists the convictions in both cases, contains clerical mistakes for both matters. Appellant filed a notice of appeal, and a certificate of probable cause was issued. Via a handwritten notation, the certificate was limited to a wiretap issue that is not relevant to the present appeal. DISCUSSION 1. Appellant Is Estopped From Challenging His Sentence. Asaninitial matter, appellant maintains he may bring the present appeal despite his agreement to waive appellate rights. He further contends the handwritten notation on the certificate of probable cause does not limit the issues he can raise on appeal. Respondentneither directly disputes appellant’s arguments nor provides legal authority challenging these contentions. Weagree with appellant that the handwritten notation on the certificate of probable cause does notlimit the scope of his appeal rights. (People v. Hoffard (1995) 10 Cal.4th 1170, 1180 [appellate court is permitted to consider cognizable issues in addition to those identified in a defendant’s written statement to obtain a certificate of probable cause].) Further, although this record demonstrates that the parties agreed appellant would waive his appeal rights as part of the plea bargain, this record does not establish that appellant ever gave a knowing andintelligent waiver of those rights. Appellant did not orally waive his appeal rights before the trial court and no changeofplea form appears in the appellate record. Accordingly, we will address appellant’s contentions. A sentence enhancementfor participation in a criminal street gang may not be imposed on a person in addition to an enhancement under section 12022.53, “unless the person personally used or personally dischargeda firearm in the commission ofthe offense.” (§ 12022.53, subd. (e)(2).) Here, appellant only admitted that a principal personally discharged a firearm. Thus, we agree with the parties that the court imposed an unauthorized 10-year term for the gang enhancementpursuantto section 186.22, subdivision (b)(1)(C). Appellant contends he should be permitted to withdraw his plea. In the alternative, he requests a remandforthe trial court to determine whether he can be lawfully sentenced within the terms of the plea bargain. If he cannot be lawfully sentenced, he maintains he should then be permitted to withdraw his plea. Respondent argues appellant is estopped from challenging the sentence, citing People v. Hester (2000) 22 Cal.4th 290 (Hester). In Hester, supra, 22 Cal.4th 290, the defendant entered no contest pleas to felony assault, burglary, misdemeanorbattery, misdemeanorvandalism, and attempting to dissuade a witness. He admitted he personally used a dangerous or deadly weaponin the commission of the felony assault, and he entered the residence with intent to commit felony assault. In exchangeforhis pleas, the defendant agreed to a term of four years in state prison. A four-year prison sentence was imposedfor the burglary count, with concurrent three-year termsfor the felony assault and dissuading counts, and concurrent jail terms for the misdemeanorcounts. (/d. at p. 293.) Onappeal, the defendant claimed,in part, that sentencing error occurred when the three-year term for the assault count was not stayed pursuant to section 654. (Hester, supra, 22 Cal.4th at p. 294.) The Court of Appeal found sentencing error and modified the judgmentto stay the term for the felony assault under section 654. However,the Supreme Court reversed the appellate court. (Hester, at p. 297.) In grantingits review, the Supreme Court analyzed whetherCalifornia Rules of Court, formerrule 412(b)4 is invalid because it conflicts with section 654. (Hester, at p. 293.) Formerrule 412(b) provided: “By agreeing to a specified prison term personally and by counsel, a defendant whois sentenced to that term or a shorter one abandonsany claim that a componentof the sentence violates [Penal Code] section 654’s prohibition of 4 Formerrule 412 of California Rules of Court was renumbered rule 4.412 and amendedeffective January 1, 2001. All future referencesto rules are to the California Rules of Court unless otherwisenoted. double punishment, unless that claim is asserted at the time the agreementis recited on the record.” In reversing, Hester noted that a section 654 claim is ordinarily not waived from a failure to object in the trial court. (Hester, supra, 22 Cal.4th at p. 295.) Hester, however, also noted an exception to this rule: “Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even thoughthe trial court acted in excess ofjurisdiction in reaching that figure, so long asthe trial court did not lackfundamentaljurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowedto trifle with the courts by attempting to better the bargain through the appellate process. [Citations.]” (/bid., originalitalics.) Hester found that the defendant’s acceptance of the plea bargain wasan implicit waiver of section 654 rights, and it found no conflict between rule 412(b) and section 654. (Hester, supra, 22 Cal.4th at p. 295.) The Supreme Court stated: “‘When a defendant maintainsthatthe trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ [Citation.]” (bid.) Appellant contends Hester is distinguishable as it dealt with section 654, and he argues Hester should not apply because heis not asking this court to reduce his sentence. Healso points to rule 4.412(a), which states: “It is an adequate reason for a sentence or other disposition that the defendant, personally and by counsel, has expressed agreement that it be imposed and the prosecuting attorney has not expressed an objectionto it. The agreement and lack of objection must be recited on the record. This section does not authorize a sentence that is not otherwise authorized by law.” Here, appellant entered a plea of no contest in return for a specified sentence. Althoughthe trial court acted in excess ofjurisdiction regarding how it reached the 35-year prison term, the trial court did not lack fundamentaljurisdiction. Under the holding and reasoning in Hester, it is implied that appellant waived any claim of sentencing error because he received the benefit of his bargain and avoideda potentially harsher sentence. (Hester, supra, 22 Cal.4th at p. 295.) Appellant is not allowed to improve his bargaining position through the appellate process. Moreover, although Hester dealt with section 654, the Supreme Court relied upon People v. Couch (1996) 48 Cal.App.4th 1053 (Couch) in rendering its opinion. (Hester, supra, 22 Cal.4th at p. 295.) Couch did not involve section 654. In Couch, the defendant pleaded no contest to a single count of forgery and admitted a prior serious felony conviction within the meaning of section 667, subdivisions (b) through (i). The admissions werepart of a plea bargain to accept a 32-monthstate prison sentence. Thetrial court imposed the agreed sentence, and the defendant appealed, asserting that sentencing error occurred becausethetrial court failed to sentence him undersection 1170 rather than section 667, subdivisions (b) through(i). The defendantasserted that his prior conviction did not qualify for treatment under section 667 as it occurred prior to the enactmentof these provisions. (Couch, supra, 48 Cal.App.4th at pp. 1055, 1057-1058.) Couch dismissed these contentions, finding that the defendant accepted the plea bargain for a specific term which included an admission of a prior conviction allegation which would necessarily result in a sentence under section 667, subdivisions (b) through(i), rather than section 1170. It was further noted that the trial court could have imposed a longer sentence than the agreed upon term. The defendant was deemed estopped from challenging his sentence because he acceptedit. (Couch, at p. 1058.) Here, similar to Couch, appellant accepted the plea bargain for a specific term, which included enhancement admissions undersection 12022.53, subdivision (c), and section 186.22, subdivision (b)(1)(C). It necessarily resulted that appellant’s sentence would be based upon those admissions. Appellant is estopped from challenging the legality of how that sentence was construed following his agreement. (See Couch, supra, 48 Cal.App.4th at p. 1058.) Our conclusion is also supported by this court’s opinion in People v. Miller (2012) 202 Cal.App.4th 1450 (Miller). In Miller, the defendant appealed thetrial court’s denial of his motion to vacate his plea and modify his conviction from a felony to a misdemeanor. (/d. at p. 1452.) On appeal, the Attorney General concededthat the plea agreement wasin error because appellant pleaded no contest to felony possession of diazepam (Valium), but possession of diazepam is at most a misdemeanor. (Jd.at p. 1455 & fn. 3; Health & Saf. Code, § 11375, subd. (b)(1).) This court agreed that error occurred in charging and accepting the plea as a felony. However, Miller concluded the defendant was estopped from vacatinghis plea and modifying his conviction. (Jd. at pp. 1452-1453.) After analyzing the relevant case law, Miller noted the defendant was advised before sentencing regarding the consequencesof a plea agreement. The defendant’s criminal conduct was deemedserious and jeopardized the safety and well-being of other motorists when he drove his vehicle far in excess of the speed limits while under the influence of diazepam. The record madenoindication that the prosecution would have been unable to prove the remaining felony charged in the complaint (felony possession of Vicodin), or that the sentence imposedfor that felony would have been different from the actual sentence imposed. Miller determined the case did not involve the wrongful conviction of an innocent person, or a legal mistake so egregious that vacating the plea wasthe only equitable result. (Aéiller, supra, 202 Cal.App.4th at pp. 1459-1460.) Here, similar to Miller, appellant was advised before sentencing regarding the consequencesof a plea agreement. Appellant’s admitted criminal conduct wasserious and there is no indication that the prosecution would have been unable to prove the remaining felonies charged against him. This case does not involve an innocent person wrongfully convicted. Appellant cites People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567 (Sanchez); People v. Ramirez (1995) 33 Cal.App.4th 559 (Ramirez); and People v. Baries (1989) 209 Cal.App.3d 313 (Baries) as authority that an illegal sentence cannot stand even ifit is the result of a negotiated plea. These authorities do not alter our conclusion. First, in Sanchez, the defendant negotiated a plea that was unauthorized by law becauseit required a penalty not available for the crime. At sentencing,the trial court reformed the plea bargain by reducing the penalty to the authorized term. The People filed a petition with the appellate court seeking a writ directing the trial court to vacate the plea bargain. The appellate court concluded that the trial court exceededits jurisdiction by reforming the negotiated plea because it denied the People the benefit of their bargain. (Sanchez, supra, 223 Cal.App.4th at pp. 569-570.) In reaching this conclusion, Sanchez noted that each party benefits from a negotiated plea agreement. The People obtain a guilty or no contest plea, often with an agreed prison term, while the defendant obtains less severe punishment. Contract principles are used to interpret negotiated plea agreements. (/d. at pp. 572-573.) Once the parties agree to the terms, both parties must abide by the terms. “Oncethe trial court approves the plea bargain,it cannot change the agreementwithout the consent of the parties. [Citation.] The court lacks jurisdiction to alter the terms and must impose a sentence within the limits of the bargain.” (d. at p. 573.) Sanchez noted that the plea should not have been entered into because it was defective. It determined that the judgment must be reversed, the plea vacated, and the parties placed backin their respective positions before the plea bargain. Sanchez held that the trial court erred by denying the People’s request to vacate the plea, and by imposing an alternative sentence. (Sanchez, supra, 223 Cal.App.4th at p. 577.) The lower court was directed to vacate the sentence and the plea bargain,reinstate the dismissed counts, and the defendant was allowed to withdraw his no contest plea. (/d. at pp. 577-578.) Here, unlike in Sanchez, the trial court entered a sentence that complied with the parties’ agreementandit did not impose a lesser term of imprisonment. Neither party made a request to vacate the plea in the lower court. Sanchez did not analyze the doctrine of estoppel andit is distinguishable. Second, in Ramirez, supra, 33 Cal.App.4th 559, the prosecution appealed from a judgment of conviction following a guilty plea by the defendant. The plea agreement contemplated a seven-year sentence in state prison, whichthetrial court imposed. In doing so, the trial court did not double a burglary term as prescribed in section 667, subdivision (e)(1), which would haveresulted in a nine-year sentence. (Ramirez, at pp. 561-562.) On appeal, Ramirez determined the defendant’s sentence should have been nine years instead of seven, and the seven-year sentence was unauthorized. Because the defendantpleaded guilty with the understanding he would receive a seven-year sentence, the matter was remanded to permit the defendant an opportunity to withdraw hispleaif he so desired. (Ud. at pp. 574-575.) Here, unlike in Ramirez, the sentencing error did not result in a longer sentence than what the parties agreed, triggering the need to give appellant an opportunity to withdraw his plea. Ramirez did not analyze estoppel, and it predated the Supreme Court’s opinion in Hester, supra, 22 Cal.4th 290. Ramirez doesnotestablish that the present matter must be remanded. Finally, in Baries, supra, 209 Cal.App.3d 313, the defendant pleaded guilty to various charges. When she committed the crimes, the defendant was on bail for offenses committed in another county for which she waslater sentenced to prison. Thetrial court imposed a sentence that was to run concurrently with the sentence in the other county. Concurrency wasan express condition of the plea. However, the district attorney objected that the concurrent sentences were unauthorized by law. Thetrial court dismissed the objection and imposed the concurrent sentences. On appeal, however, the Baries court determined that the concurrent sentences were unauthorized. (/d. at pp. 316- 10. we 317.) The sentence wasvacated and the defendant was given the opportunity to withdraw her plea because it could not be honored. (/d. at p. 319.) Here, unlike in Baries, neither party objected in the lower court regarding the imposition of this sentence. Although Baries vacated the sentence because the sentence was unauthorized, Baries did not analyze estoppel, and it predated the Supreme Court’s opinion in Hester, supra, 22 Cal.4th 290. Baries is distinguishable. Based on the foregoing, appellant is estopped from now challenging the sentence. Hereceived the benefit of his negotiated agreement. Il. The Fees And Assessments Under Health And Safety Code Sections 11372.5 And 11372.7 Were Properly Imposed. Appellant asserts that the fees imposed under Health and Safety Code sections 11372.5 and 11372.7 were unauthorized. Heasksthis court to strike them. A. Background. Regarding count 5, appellant pleaded no contest to conspiracy to commit a crime in violation of Health and Safety Code section 11379. At sentencing, the court imposed $600 in fees and penalty assessments for count 5 (conspiracy), which consisted,in part, of $50 pursuant to Health and Safety Code section 11372.5, and $100 pursuant to Health and Safety Code section 11372.7. B. Standard of review. It is a pure question of law whether penalty assessments should be imposed. Accordingly, a de novo standard of review is used on appeal. (People v. Moore (2015) 236 Cal.App.4th Supp. 10, 14.) OF Analysis. Appellant contends the fees imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7 do not apply to a conspiracy conviction. He relies upon Peoplev. Vega (2005) 130 Cal.App.4th 183 (Vega). He further argues his counsel rendered ineffective assistance if this issue is deemed forfeited on appeal. 11. Respondentasserts that appellant forfeited this issue on appeal becausehe failedto object to the fees and assessments at sentencing. If forfeiture did not occur, respondent relies principally upon People v. Sharret (2011) 191 Cal-App.4th 859 (Sharret) for the proposition these fees were properly imposed. 1. Appellant forfeited this issue. “Ordinarily, a criminal defendant who doesnot challenge an assertedly erroneous ruling ofthe trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880.) The forfeiture rule generally applies to sentencing. (/d. at p. 881.) Here, appellantfailed to challenge below the assertedly erroneous imposition of these fees. Accordingly, he is deemed to have forfeited his right to raise this claim on appeal. In any event, wealso reject his arguments on the merits. 2. Thefees were properly imposed. Following a conviction for conspiracy, the defendant is to be punished “in the same mannerand to the same extentas is provided for the punishmentof that felony.” (§ 182, subd. (a).) “[Health and Safety Code] sections 11372.5 and 11372.7 each require the court to imposespecified fees on defendants convicted of certain specified drug offenses. Each suchfeeis to be collected by the local county and used under [Health and Safety Code] section 11372.5, subdivision (b) to offset the administrative costs of laboratory testing of suspected drug samples, and under [Health and Safety Code] section 11372.7, subdivision (c) to fund local drug abuse treatment and prevention programs.” (People v. Moore, supra, 236 Cal.App.4th Supp.at p. 15, fn. omitted.) Here, the court imposed $600 in fees and penalty assessments for count 5 (conspiracy), which consisted, in part, of $50 pursuant to Health and Safety Code section 11372.5, and $100 pursuant to Health and Safety Code section 11372.7. The issueis whetherthese fees constituted “punishment” such that the court properly imposed them against appellant for his conspiracy to committhe drug offense. (§ 182, subd.(a).) 12. a. Health and Safety Codesection 11372.5. Health and Safety Code section 11372.5 imposes a “criminal laboratory analysis fee” on defendants who are convicted of enumerated drug offenses, including a violation of Health and Safety Code section 11379. (Health & Saf. Code, § 11372.5, subd. (a).) The sentencing court is to increase the total fine necessary to include this increment. (Ubid.) A “fine” not in excess of $50 is imposed, which is deposited into a “criminalistics laboratories fund” for every conviction of certain enumerated drug offenses. (/d., at subds. (a) & (b).) There is a conflict of authority regarding the criminal laboratory analysis fee under Health and Safety Code section 11372.5. In Vega, supra, 130 Cal.App.4th 183, the Second District Court of Appeal (Division Seven) concludedthat this fee did not qualify as “punishment” within the meaning of section 182, subdivision (a), and the fee was improperly imposed upon the defendants who were convicted of conspiracy to transport cocaine. (Vega, at pp. 185, 194-195.) Appellant urges this court to follow Vega. In contrast, in Sharret, supra, 191 Cal.App.4th 859, the Second District Court of Appeal (Division Five) concluded that this same fee constituted punishment. (/d. at p. 869.) Respondent urges us to follow Sharret. We agree with Sharret that the fee under Health and Safety Code section 11372.5 constitutes punishment. As Sharret analyzed and determined, the language of Health and Safety Code section 11372.5 provides that the laboratory analysis fee is punitive in nature because a sentencing court is to increase the total fine in increments as necessary for each separate offense. (Sharret, supra, 191 Cal.App.4th at pp. 869-870.) The fee may only be imposed upon a criminal conviction andit has no application in a civil context. (/d. at p. 870.) The fee is assessed in proportion to a defendant’s culpability. The fee is mandatory and without an “ability to pay requirement.” The fees are used for law enforcement purposes, and “earmarked for the criminalistics laboratories fund, which has nocivil purpose.” 13. (ibid.) There is no evidence Health and Safety Code section 11372.5 “was a mere budget measure”like other statutory fees. (Sharret, at p. 870.) In Vega, supra, 130 Cal.App.4th 183, the appellate court acknowledged that “[a] cogent argument can be madefrom the language of Health and Safety Code section 11372.5, subdivision (a) the Legislature intended the $50 laboratory ‘fee’ to be an additional punishment for conviction of one of the enumerated felonies.” (Vega, supra, 130 Cal.App.4th at p. 194.) This is because the statute refers to the “fee” as a “fine” which may be imposedin incrementsreflecting the numberof offenses committed in addition to any other “penalty” prescribed by law. (/bid.; Health & Saf. Code, § 11372.5, subd.(a).) Vega found supportfor this interpretation from People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen), in which our Supreme Court held the penalty assessments “eeapplicable to “‘every fine, penalty, or forfeiture’” applied to the laboratory analysis fee in Health and Safety Code section 11372.5. (Talibdeen, at pp. 1153-1154.) However, Vega found Talibdeen not controlling because the Supreme Court assumed (along with the parties in that case) that the laboratory analysis fee was a punishment and Talibdeen did not analyze that issue. (Vega, supra, 130 Cal.App.4th at p. 195.) The Vega court foundthe labels “fee” or “fine” not a dispositive indicator of an intent to be punitive, particularly when the Legislature used both terms in the same statute. (Vega, supra, 130 Cal.App.4th at p. 195.) “Fines are imposedforretribution and deterrence; fees are imposed to defray administrative costs.” (/bid.) Vega held “the main purpose of Health and Safety Code section 11372.5 is not to exact retribution against drug dealers or to deter drug dealing ... but rather to offset the administrative cost of testing the purported drugs the defendant transported or possessed for sale in order to secure his conviction.” (lbid.) “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 onthe seriousness of the crime, and the 14. proceeds from the fee mustbe deposited into a special ‘criminalistics laboratories fund’ maintained in each county by the county treasurer.” (/bid.) Wefind Sharret more persuasive than Vega and adoptits conclusionthat the fee in Health and Safety Code section 11372.5 is punitive. Althoughthis sectionrefers to the imposition of a “fee,” the section reflects the imposition of both a fine anda penalty, especially when considered with other statutes. (Health & Saf. Code, §§ 11372.5, subd (a), 11502, subd. (a); Pen. Code, §§ 1205, 1464.8.) Other courts have foundthis fee mandatory and a fine. (See People v. Taylor (2004) 118 Cal.App.4th 454, 456 [this fee is mandatory]; People v. Turner (2002) 96 Cal.App.4th 1409, 1413 [this fee is mandatory and subject to mandatory penalty assessments]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [the laboratoryfee is a fine]; People v. Clark (1992) 7 Cal.App.4th 1041, 1050 [this fee is mandatory].) Accordingly, we deem the fee under Health and Safety Code section 11372.5 to be a “punishment”such that the court properly imposedit against appellant under Penal Code section 182, subdivision(a). (Sharret, supra, 191 Cal.App.4th at p. 870.) b. Health and Safety Codesection 11372.7. Health and Safety Code section 11372.7 imposes a “drug program fee”notto exceed $150 on defendants convicted of drug offenses, including a violation of Health and Safety Codesection 11379. (Health & Saf. Code, § 11372.7, subd. (a).) The Legislature authorized sentencing courts to “increase thetotal fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law.” (Ibid.) The sentencing court is to determine if the defendanthas the ability to pay this fee, and, if so, a reasonable amountis imposed. (/d., at subd.(b).) In People v. Sierra (1995) 37 Cal.App.4th 1690 (Sierra), this court ruled that Health and Safety Code section 11372.7 “is a fine and/or a penalty to which the penalty assessment provisions of Penal Code section 1464 and Government Codesection 76000 apply.” (Sierra, at p. 1696.) This court concludedthat the interchangeable useofthe 15. terms fee and fine, coupled with the “‘any other penalty’” language signaled that the drug program fee waspenal in nature. (/d. at pp. 1695-1696.) Based ontheprior holding ofthis court in Sierra, supra, 37 Cal.App.4th 1690, the fee under Health and Safety Code section 11372.7 constituted punishment. Accordingly, the court properly imposed it against appellant. (§ 182, subd.(a).)° Ill. The Abstract Of Judgment Contains Clerical Errors. The parties agree that the abstract ofjudgment contains the followingclerical errors. Four enhancements undersection 12022.53, subdivision (c), are listed, two of which are markedas “stayed.” However, the trial court imposed sentence on this enhancementonly twice. In addition,a total of three prior prison termsare listed under section 667.5, subdivision (b). At sentencing, however,the trial court imposed sentence only once pursuant to section 667.5, subdivision (b). Weagreethat these corrections must be made. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract ofjudgment may notadd to or modify the trial court’s oral pronouncementofjudgment].) Accordingly,the trial court shall prepare an amended abstract ofjudgmentthat strikes the two stayed enhancements pursuant to section 12022.53, subdivision (c); and the two stayed enhancements pursuantto section 667.5, subdivision (b). A disagreement exists, however, regarding appellant’s final contention. For companion case No. VCF207169,the abstract lists enhancementallegations pursuant to section 12022, subdivision (c), and Health and Safety Code section 11370.2, subdivision (c). When sentencing appellant, the sentencing court did not orally impose these 5 Because the imposition of these fees was proper, we reject appellant’s contention that his counsel rendered ineffective assistance for not objecting in the lower court. Counsel need not make meritless objections to avoid an appellate claim of ineffective assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432.) 16. enhancements. Appellant contends these enhancements must be stricken from the abstract. Respondentobjects and contends these enhancements appear in the probation report so they should notbe struck. Generally, the court’s oral pronouncement ofjudgmentprevails over the abstract ofjudgmentto the extent there is a conflict. (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) When a discrepancy exists between the court’s oral pronouncementofjudgment and the abstract ofjudgment, the abstract must be amended. (People v. Mitchell, supra, 26 Cal.4th at pp. 185-186.) Here, at sentencing, the court did not pronounce sentence regarding section 12022, subdivision (c), or Health and Safety Code section 11370.2, subdivision (c). Accordingly, the abstract must be amended to reflect the oral pronouncementofsentence. DISPOSITION This matter is remandedtothe trial court to correct the abstract ofjudgment as follows: the court shall strike (1) the two stayed enhancements pursuant to Penal Code section 12022.53, subdivision (c); (2) the two stayed enhancements pursuant to Penal Code section 667.5, subdivision (b); (3) the stayed enhancement pursuant to Penal Code section 12022, subdivision (c); and (4) the stayed enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c). The trial court shall then forward the amended abstract ofjudgmentto the appropriate authorities. The judgmentis otherwise affirmed. LEVY,Acting P.J. WE CONCUR: DETJEN,J. FRANSON,J. 17. I, the undersigned, declare as follows: DECLARATIONOF SERVICE lam a memberofthe State Bar of California and a citizen of the United States. I am over the age of 18 years and not a party to the within-entitled cause; my business address is PMB 334, 3104 O Street, Sacramento, California, 95816. On June 27, 2016, I served the attached PETITION FOR REVIEW (by mail) - by placing a true copy thereof in an envelope addressed to the person(s) named belowat the address(es) shown,andby sealing and depositing said envelope in the United States Mail at Sacramento, California, with postage thereon fully prepaid. There is delivery service by United States Mail at each of the places so addressed,or there is regular communication by mail betweenthe place of mailing and each of the places so addressed. Felix Corral Ruiz Appellant California Substance Abuse Treat ARS116 P. O. Box 5246 Corcoran, CA 93212-8309 Tulare County Superior Court 221 S. Mooney Blvd. Courthouse, Room 303 Visalia, CA 93291 Tulare County District Attorney County Civic Center 221 S. Mooney Avenue Courthouse, Room 224 Visalia, CA 93291 (by electronic transmission) - | am personally andreadily familiar with the preparation of and process of documentsin portable documentformat (PDF) for e-mailing, and I caused said document(s) to be prepared in PDF and then served by electronic mail to the party listed below, by close of business on the date listed above: Central California Appellate Program 2407 J Street, Suite 301 Sacramento, CA 95816 eservice@capcentral.org Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244-2550 SacAWTTrueFiling@doj.ca.gov California Court of Appeal, Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 Served via Truefiling.com I declare underpenalty of perjury that the foregoingis true and correct. Executed on June 27, 2016, in Sacramento, California. /s/Elizabeth M. Campbell DECLARANT