P. v. Torres

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Filed 1/30/18 P. v. Torres CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
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THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS CRUZ TORRES,
Defendant and Appellant.
C083981
(Super. Ct. No. S14CRF0012)
After pleading no contest to possession of a controlled substance for sale, the trial
court imposed drug education program and crime lab fees, and attendant penalty
assessments. Defendant Jesus Cruz Torres appeals the imposition of the penalty
assessments, contending the drug education program and crime lab fees are not fines, and
are not subject to penalty assessments. We affirm the judgment.

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BACKGROUND
In April 2014, defendant pleaded no contest to possession of a controlled
substance for sale, methamphetamine.1 (Health & Saf. Code, § 11378.)2 Pursuant to the
plea agreement, the trial court granted defendant three years’ formal probation, and
imposed various fines and fees, including a drug education program fee under section
11372.7 and a crime lab fee under section 11372.5. The drug education program and
crime lab fees included base fines of $150 and $50, respectively, and various penalty
assessments and surcharges. The penalty assessments included: (1) a matching state
penalty assessment (Pen. Code, § 1464, subd. (a)(1)); (2) a $10 state surcharge (id.,
§ 1465.7); (3) a $25 state court construction penalty (Gov. Code, § 70372); (4) a $35
additional penalty (id., § 76000, subd. (a)(1)); (5) a $10 emergency medical services
penalty (id., § 76000.5, subd. (a)(1)); (6) a $5 penalty for the implementation of the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act (id., § 76104.6, subd. (a)(1));
and (7) a $20 forensic laboratories penalty (id., § 76104.7).
In September 2016, defendant admitted violating probation by committing assault
with a deadly weapon, spousal abuse, and misdemeanor battery. At sentencing on the
probation violation, the trial court imposed a sentence of two years, and reimposed the
fines and fees from the original sentencing, including the drug education and crime lab
fees. After sentencing and filing the notice of appeal, defendant requested the trial court
to delete the penalty assessments imposed on the section 11372.5 and 11372.7 fines. The
trial court denied the request.
1 The substantive facts underlying the offense, and the probation violation, are not
relevant to any issue raised on appeal and are therefore not recounted.
2 Undesignated statutory references are to the Health and Safety Code.

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DISCUSSION
Defendant contends the trial court erred by imposing penalty assessments on the
crime lab and drug program fees under sections 11372.53 and 11372.7,4 respectively.
Given the similarity of the language in the two statutes for purposes of this issue, the
legal analysis is the same for each.
Penalties or assessments must be imposed upon every fine, penalty, or forfeiture
imposed by the trial court in a criminal case. (Gov. Code, § 76000; Pen. Code, § 1464.)
(People v. Alford (2017) 12 Cal.App.5th 964, 968-969 (Alford), citing People v.
Talibdeen (2002) 27 Cal.4th 1151, 1153-1154 (Talibdeen).) The language of both
sections is inconsistent, variously referring to the levy as a fee that increases “the total
fine,” and also as a “fine” “which shall be in addition to any other penalty.” (§§ 11372.5,
subd. (a), 11372.7.)
Defendant urges us to follow People v. Watts (2016) 2 Cal.App.5th 223 and
determine the section 11372.5 and 11372.7 levies are not subject to penalty assessments
because they are neither a fine nor a penalty. (Watts, at pp. 234-237.) We decline the
invitation.
We remain persuaded by our analysis in People v. Moore (2017) 12 Cal.App.5th
558, review granted September 13, 2017, S243387, and the other appellate courts
that have reached the same conclusion. (See People v. Martinez (1998) 65 Cal.App.4th
3 In pertinent part, section 11372.5, subdivision (a), provides: “Every person who is
convicted of a violation of Section . . . 11378 . . . shall pay a criminal laboratory analysis
fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase
the total fine necessary to include this increment.”
4 In pertinent part, section 11372.7, subdivision (a), provides: “Except as otherwise
provided in subdivision (b) or (e), each person who is convicted of a violation of this
chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars
($150) for each separate offense. The court shall increase the total fine, if necessary, to
include this increment, which shall be in addition to any other penalty prescribed by law.”

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1511, 1520 (Martinez); People v. Terrell (1999) 69 Cal.App.4th 1246, 1257; People
v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414; People v. McCoy (2007) 156
Cal.App.4th 1246, 1251-1252; People v. Sharret (2011) 191 Cal.App.4th 859, 869;
Alford, supra, 12 Cal.App.5th at pp. 974-977.) As we recently explained in Moore,
“[a]lthough Watts advances a thoughtful interpretation of section 11372.5, we conclude
the language of the statute and the weight of case authority leads to the conclusion the
criminal laboratory analysis fee constitutes a fine or penalty for purposes of penalty
assessments.” In addition, “the Legislature, which is presumed to be aware of
longstanding judicial interpretations of statute [citation], has not amended section
11372.5 to abrogate the holding the section constitutes a fine or penalty in the nearly two
decades since the decision in Martinez, supra, 65 Cal.App.4th at pages 1520-1522.”
(Moore, at p. 570.)
Also as noted in Moore, supra, 12 Cal.App.5th 558 interpreting the section
11372.5 and 11372.7 levies as fees would be inconsistent with the outcome in Talibdeen,
where the Supreme Court affirmed the Court of Appeal’s decision to add penalty
assessments to a section 11372.5 levy. (Talibdeen, supra, 27 Cal.4th at pp. 1153-1154,
1157.) Although the issue in Talibdeen was whether a trial court could waive the Penal
Code section 1464 and section 76000 penalties on the crime lab fee (Talibdeen, at
p. 1153), in reaching its conclusion the penalty assessments were mandatory--and their
omission could be corrected on appeal despite the lack of objection--the Talibdeen court
said it was following appellate court decisions, including Martinez and Terrell, that
addressed the issue presented here. (Talibdeen, at p. 1157.) As the Alford court found,
“Because the holdings of these Court of Appeal decisions constituted the logical
predicate to the high court’s ultimate conclusion on the mandatory nature of the penalty
as applied to a section 11372.5 assessment, we necessarily conclude they were
encompassed within the Talibdeen court’s holding. [Citation.] If the high court had
intended to disavow [these] holdings on this issue or suggest it was not reaching the

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propriety of these rulings, it could have said so. It did not.” (Alford, supra,
12 Cal.App.5th at pp. 974-975.) Accordingly, we conclude the trial court did not err in
imposing penalty assessments on the crime lab and drug program fees.
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
MAURO, J.

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