California Court of Appeals, First District, First Division
Court Mendocino County No. SCUKCRCR1580346 Honorable John A.
Counsel for Appellant: Randall H. Conner, under appointment
by the First District Appellate Project
Counsel for Respondent: Kamala D. Harris, Attorney General;
Gerald A. Engler, Chief Assistant Attorney General; Huy T.
Luong, Deputy Attorney General
Kellymay Watts appeals from an order granting probation
following her plea of no contest to possession of
methamphetamine for sale. Her appellate counsel asked this
court for an independent review of the record to determine
whether there are any arguable issues. (People v.
Wende (1979) 25 Cal.3d 436.) We requested briefing on
whether the criminal laboratory analysis (crime-lab) fee
imposed under Health and Safety Code section 11372.5 is
subject to penalty assessments, which are proportionately
levied on some monetary charges imposed on criminal
defendants. We did so because a recent decision from the
Appellate Division of the Nevada County Superior Court,
People v. Moore (2015) 236 Cal.App.4th Supp. 10
(Moore) concluded, contrary to the weight of
authority, that the crime-lab fee is not subject to penalty
assessments. Although we decline to adopt
Moore’s rationale, we agree with its holding
that the crime-lab fee is not subject to penalty assessments.
As a result, we order the penalty assessments imposed on the
crime-lab fee stricken but otherwise affirm.
January 2015, a Fort Bragg police officer found Watts in
possession of 3.86 grams of methamphetamine and 1.16 grams of
heroin, as well as assorted drug paraphernalia.
“[N]umerous text messages... indicating sales of
controlled substances” were found on Watts’s cell
phone. Watts was charged with a felony count of possession of
heroin for sale. Under a plea agreement, she pleaded no
contest to that count, which was amended to refer to
methamphetamine instead of heroin.
trial court suspended imposition of the sentence and placed
Watts on probation for 36 months subject to various
conditions, including that she serve 120 days in county jail.
Among other fines and fees, the court imposed “the $190
[crime-lab] fee under [section] 11372.5 of the Health and
Safety Code, ” and an addendum to the probation order
stated that the $190 “[f]ee imposed include[d] penalty
assessments and surcharges as required.” Watts did not
object to the imposition of the crime-lab fee or the
argues on appeal that the $50 crime-lab fee authorized by
section 11372.5 is not subject to penalty assessments and
that the trial court therefore erred by imposing an
additional $140. We agree.
Monetary Charges Imposed in Criminal Cases.
begin by describing three different categories of monetary
charges that may be imposed on a criminal defendant and that
are relevant to the issues in this appeal. We do so
because these categories are ill-defined. As one justice
aptly observed in 2009, the Legislature has created an
“increasingly complex system of fines, fees, and
penalties, ” leaving it “doubtful that criminal
trial lawyers and trial court judges have the ability to keep
track of the myriad  charges that now attach to criminal
convictions.” (People v. Castellanos (2009)
175 Cal.App.4th 1524, 1533-1534 (conc. opn. of Kriegler,
J.).) This justice correctly predicted that “[t]he
system, as it exists, is likely to only become more
complicated in the immediate future.” (Ibid.;
see People v. Hamed (2013) 221 Cal.App.4th 928, 939
[recognizing increasing difficulty of accurately imposing
penalty assessments].) Making sense of the system is
particularly difficult because the Legislature has described
criminal monetary charges with a variety of terms, such as
fine, fee, assessment, increment, and penalty, while
sometimes assigning different meanings to the same term.
first category of monetary charges that may be imposed
includes charges to punish the defendant for the crime.
(People v. Sorenson (2005) 125 Cal.App.4th 612,
617.) These charges are often referred to as base fines (see
ibid.), and throughout this opinion we shall refer
to them as such with the understanding that statutes
sometimes use the term fine with a broader meaning. Trial
courts often have discretion over whether and in what amount
to impose base fines.
second category of charges that may be imposed includes
charges to cover a particular governmental program or
administrative cost. (See, e.g., Pen. Code, § 1465.8,
subds. (a) & (b); People v. Alford (2007) 42
Cal.4th 749, 756 [discussing court security fee under Penal
Code section 1465.8].) These charges are usually referred to
as fees and, as with base fines, trial courts often have
discretion over whether to impose them.
third category of charges includes penalty assessments,
which, when applicable, inflate the total sum imposed on the
defendant by increasing certain charges by percentage
increments. All current penalty assessments are legislatively
expressed as a certain dollar amount “for every ten
dollars ($10), or part of ($10), ” for the particular
fine, penalty, or forfeiture that is subject to the
assessments. (E.g., Pen. Code, § 1464, subd. (a)(1).)
Thus, for example, if the base fine is $100 and the penalty
assessment is $2 for every $10 imposed, the penalty
assessment increases the defendant’s base fine by $20,
or 20 percent. If the same penalty assessment is imposed on a
base fine of $105, the penalty assessment is $22, and the