California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of San Diego County No.
SCN353122, Michael J. Popkins, Judge. Affirmed.
Michelle C. Rogers, under appointment by the Court of Appeal,
for Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Warren J. Williams, Deputy
Attorneys General, for Plaintiff and Respondent.
Alford pled guilty to possessing methamphetamine for sale.
(Health & Saf. Code,  § 11378.) The court sentenced
Alford to eight years in custody, plus three years four
months on mandatory supervision. The court also imposed
various fines and assessments. Alford's appellate
challenge concerns the court's imposition of a monetary
penalty (Pen. Code, § 1464; Gov. Code, § 76000,
together "penalty statutes") based on two statutory
assessments: (1) a criminal laboratory analysis fee
(laboratory fee) (§ 11372.5); and (2) a drug program fee
acknowledges the court properly assessed him for the
laboratory and drug program fees (§§ 11372.5,
11372.7), but contends the court erred in concluding the
penalty statutes applied to require an additional penalty on
top of those fees. There is a split in authority in the
Courts of Appeal on this precise issue. (See People v.
Watts (2016) 2 Cal.App.5th 223, 229-237 [imposition of
the additional penalty not permitted] (Watts);
People v. Sierra (1995) 37 Cal.App.4th 1690,
1694-1696 (Sierra) [additional penalty upheld on
drug program fee]; People v. Martinez (1998) 65
Cal.App.4th 1511, 1522 [additional penalty required on
laboratory fee] (Martinez).) We determine the
court's assessment of the additional penalties was
affirm the judgment, but remand for the court to correct a
clerical error and itemize the fines and penalties in the
abstract of judgment.
FACTS AND PROCEDURE
factual basis for his plea, Alford admitted he possessed
methamphetamine for sale and distribution in an amount
greater than 10 kilograms. The court imposed various fines
and assessments, including a $205 "Lab Fee" under
section 11372.5, subdivision (a), and a $615 "Drug
Program Fee" under section 11372.7, subdivision (a).
the judgment was entered, Alford moved to strike portions of
these two assessments, noting the statutes limit the
laboratory fees to $50 and drug program fees to $150
(§§ 11372.5, 11372.7), and arguing that the court
erred in adding the Penal Code section 1464 and Government
Code section 76000 penalties to these fees. Alford relied
primarily on Watts, supra, 2 Cal.App.5th 223, a case
filed after Alford's sentencing, in which the First
District Court of Appeal had disagreed with the prevailing
majority view on the issue.
trial court denied the motion. On appeal, Alford reasserts
his challenge to the penalty assessments. He argues the court
erred in adding $155 to the laboratory fee and $465 to the
drug program fee.
penalty statutes (Pen. Code, § 1464; Gov. Code, §
76000) mandate that a court impose a penalty assessment
"upon every fine, penalty, or forfeiture imposed and
collected... for all criminal offenses" with certain
exceptions not applicable here. (See People v.
Talibdeen (2002) 27 Cal.4th 1151, 1153-1154
(Talibdeen).) "Although these
'parasitic' assessments punish a defendant in the
sense that they increase the total monetary charge imposed,
they were created in large part to generate revenue and are
deposited into various state and county funds."
(Watts, supra, 2 Cal.App.5th at p. 229.)
contends the court erred in adding these statutory penalties
to the amounts assessed under sections 11372.5 and 11372.7
because these latter code sections do not impose a
"fine" or "penalty" within the meaning of
the penalty statutes, and instead levy only a
"fee." The Attorney General counters that the court
properly added the penalty assessments "because those
two fees are actually fines." In asserting these
arguments, the parties focus on the wording of sections
11372.5 and 11372.7. We thus begin by setting forth the
relevant language of these statutes.
11372.5, the laboratory fee statute, consists of three
subdivisions. Subdivision (a) states the circumstances under
which this fee is to be imposed:
person who is convicted of a violation of [specified drug
offenses, including section 11378], shall pay a criminal
laboratory analysis fee in the amount of fifty dollars... for
each separate offense. The court shall ...