P. v. Shackelford

Filed 11/3/17 P. v. Shackelford 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY BRENT SHACKELFORD,
Defendant and Appellant.
F072964
(Super. Ct. No. F14907197)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza,
Judge.
Jyoti Malik, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Franson, J. and Peña, J.

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A jury convicted appellant Jeffrey Brent Shackelford of transportation for sale of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)/count 1), possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a lesser included offense of
the possession for sale offense charged in count 2, possession of a firearm by a felon
(Pen. Code,1 § 29800, subd. (a)(1)/count 3), and carrying a concealed firearm in a vehicle
(§ 25400, subd. (a)(1)/count 4). On December 1, 2015, the court sentenced Shackelford
to a prison term of three years consisting of the middle term of three years on count 1,
time served on count 2, and concurrent two-year terms on each of his convictions in
counts 3 and 4.
On July 29, 2016, Shackelford’s appellate counsel filed a brief requesting that we
review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Shackelford has
not responded to this court’s invitation to submit additional briefing.
On May 18, 2017, we issued a letter informing the parties that they could file a
brief addressing whether the court imposed an unauthorized sentence by its failure to
impose: (1) a stayed term on one of Shackelford’s convictions in counts 3 and 4; and
(2) laboratory fees and corresponding assessments on Shackelford’s convictions in
counts 1 and 2.
On June 1, 2017, Shackelford’s appellate counsel filed a letter brief. Following
independent review of the record and having considered the response by Shackelford’s
appellate counsel, we conclude that the court imposed an unauthorized sentence by its
failure to: (1) stay one of the terms it imposed on Shackelford’s convictions in counts 3
and 4; (2) impose laboratory fees and corresponding assessments on his convictions in
counts 1 and 2; and (3) stay one of these fees and corresponding assessments. We also
modify the judgment accordingly and affirm as modified.
1 All further statutory references are to the Penal Code unless otherwise noted.

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FACTUAL AND PROCEDURAL HISTORY
On July 5, 2014, at approximately 11:32 p.m., Fresno Police Officer Miguel
Archan was on patrol when he noticed a large truck without a front license plate, which
was a violation of Vehicle Code section 5200. The truck was being driven by
Shackelford with an elderly man in his 70’s in the front passenger’s seat. Archan stopped
the vehicle and informed Shackelford of the reason for the stop. Archan conducted a
license and warrant check and discovered that Shackelford had an outstanding warrant.
The officer had Shackelford step out of the truck, handcuffed him, and placed him in the
back of his patrol car. The passenger was then asked to step out while Archan conducted
an inventory check because the truck was going to be impounded. When Archan opened
the center console, he noticed a large baggie containing a crystal substance that was later
determined to be methamphetamine with a net weight of 27.86 grams. He continued to
search and found a baggie that contained a scale with white residue and 32 pills that were
later determined to be Vicodin. The officer also located marijuana in the center console.
Archan then searched the back part of the truck. Behind the driver’s seat he found
a .22-caliber Ruger handgun in a green bag. The green bag and another bag in the
backseat area were full of watches, gold chains, copper jewelry, and cellphones. During
a search of Shackelford, Archan found $600 in his wallet. The officer arrested
Shackelford and let the passenger go.
On January 28, 2015, the Fresno County District Attorney filed an information in
this matter.
On October 27, 2015, the jury rendered its verdict.
On December 1, 2015, the court sentenced Shackelford to a three-year prison term
as previously noted. However, the court did not impose a laboratory fee or any
corresponding assessments on his drug convictions in counts 1 and 2.

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The Concurrent Terms Imposed on Counts 3 and 4
Shackelford contends the court should have stayed one of the terms imposed on
count 3 or 4 and we agree.
Section 654, subdivision (a), in pertinent part, provides:
“An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for
the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”
“ ‘It has long been established that the imposition of concurrent sentences is
precluded by section 654 [citations] because the defendant is deemed to be subjected to
the term of both sentences although they are served simultaneously.’ [Citation.] Instead,
the accepted ‘procedure is to sentence defendant for each count and stay execution of
sentence on certain of the convictions to which section 654 is applicable.’ ” (People v.
Jones (2012) 54 Cal.4th 350, 353 (Jones).)
In Jones, the court held that section 654 prohibits multiple punishment for a single
physical act that violates different provisions of law. (Jones, supra, 54 Cal.4th at p. 358.)
Shackelford’s convictions in count 3 for being a felon in possession of firearm and in
count 4 for possession of a concealed weapon were based on his singular possession of
the handgun found in his truck. Thus, the court violated section 654 when it imposed
concurrent terms on his convictions in each of those counts and we will stay the term
imposed on count 4.
The Laboratory Fees and Assessments
Shackelford concedes the court should have imposed a $50 laboratory fee on each
of his drug convictions in counts 1 and 2. However, he contends that because the
laboratory fee does not constitute punishment, the court should not have imposed penalty
assessments on either laboratory fee. We conclude that the laboratory fee and the
assessments constitute punishment, that the court should have imposed them on each of

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his convictions in counts 1 and 2, and that it should have stayed the fee and assessments
imposed on one of those counts.
Health and Safety Code section 11372.5, subdivision (a) imposes a “criminal
laboratory analysis fee” on defendants who are convicted of enumerated drug offenses,
including violations of Health and Safety Code sections 11377 and 11379. The
sentencing court is to “increase the total fine necessary to include this increment.” (Ibid.)
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. (Id. at
subds. (a) & (b).)
There is a conflict of authority regarding whether the criminal laboratory analysis
fee under Health and Safety Code section 11372.5 constitutes punishment and thus is
subject to penalty assessments. In People v. Watts (2016) 2 Cal.App.5th 223 (Watts), the
First Appellate District, Division One, held that the $50 assessment imposed pursuant to
Health and Safety Code section 11372.5 is a fee, not a fine, penalty or forfeiture, and thus
not subject to penalty assessments. (Watts, at pp. 229, 237.) In People v. Vega (2005)
130 Cal.App.4th 183 (Vega), the Second Appellate District, Division Seven, concluded
that because this fee did not qualify as “punishment” within the meaning of section 182,
subdivision (a), the fee was improperly imposed upon the defendants in that case who
were convicted of conspiracy to transport cocaine. (Vega, at pp. 185, 194-195.)
In contrast, in People v. Sharret (2011) 191 Cal.App.4th 859 (Sharret), the Second
Appellate District, Division Five, concluded that this same fee constituted punishment.
(Id. at p. 869.) 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

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offense. (Sharret, supra, 191 Cal.App.4th at pp. 869-870.) The fee may only be imposed
upon a criminal conviction and it has no application in a civil context. (Id. 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 no civil purpose.”
(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, the appellate court acknowledged that “[a] cogent argument can be made
from the language of Health and Safety Code section 11372.5, subdivision (a) [that] 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 imposed in
increments reflecting the number of offenses committed in addition to any other
“penalty” prescribed by law. (Ibid.; Health & Saf. Code, § 11372.5, subd. (a).)
Vega found support for this interpretation from People v. Talibdeen (2002)
27 Cal.4th 1151 (Talibdeen), in which our Supreme Court held the penalty assessments
applicable 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 found the 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 imposed for retribution and
deterrence; fees are imposed to defray administrative costs.” (Ibid.) Vega held “the main
purpose of Health and Safety Code section 11372.5 is not to exact retribution against

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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.” (Ibid.) “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 on the seriousness of the crime, and the
proceeds from the fee must be deposited into a special ‘criminalistics laboratories fund’
maintained in each county by the county treasurer.” (Ibid.)
The first paragraph of Health and Safety Code section 11372.5, subdivision (a)
characterizes the $50 assessment it authorizes as a “fee.” Watts found this
characterization controlling. In doing so, the court interpreted the second paragraph of
this subdivision as “establish[ing] that in the case of an offense ‘for which a fine is not
authorized by other provisions of law,’ the crime-lab fee acts as a fine and is, in turn,
subject to penalty assessments.” (Watts, supra, 2 Cal.App.5th at p. 235.) However, it
also found that the most reasonable interpretation of the phrase “not authorized by other
provisions of law” was that it referred to offenses for which no separate fine was
permitted to be imposed. (Ibid.) The Watts court further found that the second paragraph
of section 11372.5, subdivision (a) did not apply to a conviction for violating Health and
Safety Code section 11378 because although that statute did not provide for a base fine,
the offense was subject to a fine pursuant to section 672. (Watts, at pp. 235-236.)
Therefore, it found controlling the first paragraph’s characterization of the crime-lab fee
as a fee that was not subject to penalty assessments. (Id., at p. 237.)
We find Sharret more persuasive than Vega and Watts and adopt its conclusion
that the fee in Health and Safety Code section 11372.5 is punitive. Although this section
refers to the imposition of a “fee,” the section reflects the imposition of both a fine and a
penalty, especially when considered with other statutes. (Health & Saf. Code,
§§ 11372.5, subd. (a), 11502, subd. (a); §§ 1205, 1464.8.) Other courts have found this

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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 laboratory fee 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.” (Sharret, supra,
191 Cal.App.4th at p. 870.)
Since Shackelford was convicted of drug offenses in counts 1 and 2, the court
should have imposed the laboratory fee pursuant to Health and Safety Code section
11372.5 and any corresponding assessments on each count. However, section 654
prohibited the imposition of additional punishment on count 2 because Shackelford’s
convictions for transportation of methamphetamine in count 1 and possession of
methamphetamine in count 2 were both based on his singular possession of 27.86 grams
of methamphetamine. (Jones, supra, 54 Cal.4th at p. 358.) Therefore, to comply with
section 654’s prohibition against multiple punishment, the court should have imposed a
laboratory fee and corresponding assessments on each count and stayed the fee and
assessments it imposed on count 2. By failing to do so, it imposed an unauthorized
sentence that we will direct it to correct.2
Further, following an independent review of the record, we find that with the
exception of the issues discussed above, no reasonably arguable factual or legal issues
exist.
DISPOSITION
The judgment is modified to stay the concurrent two-year term the court imposed
on Shackelford’s conviction in count 4 for possession of a concealed handgun. The
2 The court should also have stayed the time it imposed on count 2 but this issue is
moot because the court sentenced Shackelford to time served on that count.

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judgment is also modified to impose a laboratory fine of $50 and mandatory assessments
on counts 1 and 2, and to stay the fee and assessments imposed in count 2. The trial court
is directed to file an amended abstract of judgment that incorporates these modifications
and to forward certified copies to the appropriate authorities. As modified, the judgment
is affirmed.

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