P. v. Walters

Filed 1/29/18 P. v. Walters CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES C. WALTERS, JR.,
Defendant and Appellant.
D071505, D072135
(Super. Ct. No. SCN358801;
SCN329905; SCN351956)
CONSOLIDATED APPEALS from a judgment of the Superior Court of San
Diego County, Sim von Kalinowski, Judge. Affirmed as modified.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and
Respondent.

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James C. Walters, Jr., raises two issues pertaining to fines, fees and penalty
assessments in three cases.1 In case SCN358801, a jury found Walters guilty of taking
and driving a vehicle (Veh. Code, § 10851, subd. (a), count 1), buying or receiving a
stolen vehicle (Pen. Code,2 § 496d, count 2) and possessing a controlled substance for
sale (Health & Saf. Code, § 11351, count 3). The trial court sentenced Walters to a total
prison term of four years eight months. The court imposed a laboratory analysis fee
(Health & Saf. Code, § 11372.5, subd. (a)) and a criminal drug program fee (Health &
Saf. Code, § 11372.7, subd. (a)), and included a penalty assessment on both. Walters
contends the trial court improperly imposed penalty assessments on the criminal
laboratory analysis fee and a drug program fee. We reject this contention.
The court also imposed sentence following probation revocation in two earlier
cases. In case SCN329905, the court imposed a previously stayed three-year term and
ran this concurrently to the sentence imposed for case SCN358801. In case SCN351956
the court imposed a four-year concurrent term. Walters asserts the trial court improperly
imposed certain fines in these probation revocation cases. As we shall discuss, we order
the amended minute orders and amended abstract of judgment be corrected.
1 These cases were consolidated below at sentencing. Defendant's two appeals,
D071505 and D072135, were consolidated by this court on May 31, 2017.
2 Undesignated statutory references are to the Penal Code.

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DISCUSSION
I. PENALTY ASSESSMENTS
Subdivision (a) of Health and Safety Code section 11372.5, the laboratory analysis
fee statute, provides: "Every person who is convicted of [specified drug-related offenses]
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. [¶] With respect to those offenses specified in this subdivision for which a
fine is not authorized by other provisions of law, the court shall, upon conviction, impose
a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment
prescribed by this section and which shall be in addition to any other penalty prescribed
by law." (Italics added.)
Subdivison (a) of Health and Safety Code section 11372.7, the drug program fee
statute, 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 and 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." (Italics added.)
Critically, the penalty assessments imposed by the trial court apply to fines and
penalties, but not to fees. (§ 1464, subd. (a)(1) ["[T]here shall be levied a state penalty in
the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10),
upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal

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offenses."]; also Gov. Code, § 760003.) Here, subdivision (a) of Health and Safety Code
sections 11372.5 and 11372.7 describe the required payment as both a "fee" and a "fine."
If the payments required by Health and Safety Code sections 11372.5 and 11372.7 are
construed to be fines or penalties, then the penalty assessments would be proper.
Walters contends that the trial court improperly imposed penalty assessments on
the criminal laboratory analysis and drug program fees under Health and Safety Code
sections 11372.5 and 11372.7. Walters notes that the question whether these fees are
really fines or penalties that are subject to penalty assessment presents a question of
statutory interpretation and upon which the Courts of Appeal are split. Walters urges us
to follow People v. Watts (2016) 2 Cal.App.5th 223 (Watts) and hold that the fees
required by these two statutes are not subject to penalty assessment. (Id. at p. 235-237.)
Recently, this court analyzed the issue and concluded that the criminal laboratory
analysis and drug program fees were punitive and subject to penalty assessment. (People
v. Alford (2017) 12 Cal.App.5th 964, 974-977 (Alford), review granted Sept. 13, 2017,
S243340); see also People v. Moore (2017) 12 Cal.App.5th 558, 570-571 [same,
addressing laboratory analysis fee], review granted Sept. 13, 2017, S243387.) Other
3 Government Code section 76000, subdivision (a) states: "(1) Except as otherwise
provided elsewhere in this section, in each county there shall be levied an additional
penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten
dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts
for all criminal offenses, including all offenses involving a violation of the Vehicle Code
or any local ordinance adopted pursuant to the Vehicle Code. [¶] (2) This additional
penalty shall be collected together with and in the same manner as the amounts
established by Section 1464 of the Penal Code. . . . [¶] (3) This additional penalty does
not apply to the following: [¶] (A) Any restitution fine. [¶] (B) Any penalty authorized
by Section 1464 of the Penal Code or this chapter. [¶] (C) [Certain specified] parking
offense[s]. [¶] (D) The state surcharge authorized by Section 1465.7 of the Penal Code."

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appellate courts have reached the same conclusion addressing only the laboratory
analysis fee. (People v. Sharret (2011) 191 Cal.App.4th 859, 869-870; People v. McCoy
(2007) 156 Cal.App.4th 1246, 1251-1252; People v. Jordan (2003) 108 Cal.App.4th 349,
368; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414; People v. Terrell (1999)
69 Cal.App.4th 1246, 1256-1257; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522.)
Pending guidance by our high court on this issue we adhere to the analysis set
forth in Alford and conclude that the trial court properly imposed penalty assessments on
the laboratory analysis and drug program fees.
II. FINES IN THE PROBATION REVOCATION CASES
A. Additional Background
When the trial court originally sentenced Walters in cases SCN329905 and
SCN351956, it suspended execution of sentence and granted probation. In each case the
court also imposed a $300 restitution fine under section 1202.4, subdivision (b) (section
1202.4(b)), and imposed but suspended execution of a $300 probation revocation
restitution fine under section 1202.44.
After the trial court revoked probation and sentenced Walters in these cases it
increased the fines and imposed additional fines. In case SCN329905, the court minutes
listed $1,800 for each fine imposed under section 1202.4(b), and section 1202.44. The
felony minutes also listed a $900 "additional restitution fine" that was "stayed until &
unless supervision is revoked." The felony abstract of judgment for case SCN329905
reflected the same $1,800 section 1202.4(b) restitution fines; however, item 9.a. listed a

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$1,800 parole revocation restitution fine imposed under section 1202.45 and deleted the
$900 "additional restitution fine."
In case SCN351956, the felony minutes listed $2,400 as the amount for each fine
imposed under section 1202.4(b) and section 1202.44. A $1,200 "additional restitution
fine" that was "stayed until &- unless supervision is revoked" was also listed. The felony
abstract of judgment for case SCN351956 under item 9.a listed a $2,400 parole
revocation restitution fine imposed under section 1202.45, but left blank any fine under
section 1202.44 and any additional restitution fine.
Walters filed a motion under section 1237.2, requesting correction of the abstract
of judgment and related minute orders. He asked the court to correct the amount of the
section 1202.4(b) and section 1202.45 fines imposed in cases SCN329905 and
SCN351956 to reflect the $300 amount originally imposed by the court when he was
granted probation on each case.
The trial court granted Walters's request. The court ordered that the minute order
for case SCN329905 "be corrected to delete the Restitution Fine of $1,800 and corrected
to $300 as [previously] ordered," and the minute order for case SCN351956 "be corrected
to delete the Restitution Fine of $2,400 and corrected to $300 as [previously] ordered."
The court further ordered that the abstract of judgment be corrected to reflect the proper
restitution fines.
The amended abstract of judgment listed $300 as the amount for the section
1202.4(b) and section 1202.45 fines for cases SCN329905 and SCN351956. However,

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the space where the probation revocation restitution fine imposed under section 1202.44
should have been entered was left blank for both cases.
B. Analysis
A trial court may impose a section 1202.4 restitution fine when it pronounces
judgment and it may not increase the restitution fine when revoking a defendant's
probation. (People v. Perez (2011) 195 Cal.App.4th 801, 805.) After revoking a
defendant's probation, the trial court is not authorized to impose a second restitution fine
because the original fine survives the revocation of probation. (People v. Chambers
(1998) 65 Cal.App.4th 819, 822-823 ["the first restitution fine remain[s] in force despite
the revocation of probation"].) An additional restitution fine imposed when probation is
revoked is unauthorized and must be stricken from the judgment. (People v. Urke (2011)
197 Cal.App.4th 766, 779.) Additionally, by the express terms of the statutes, parole
revocation restitution fines imposed under section 1202.45 and probation revocation
restitution fines imposed under section 1202.44 must be the same amount as the
restitution fines imposed under section 1202.4(b). (§§ 1202.45, 1202.44.)
The amended minutes correctly list the section 1202.4(b), and section 1202.44
fines at the original amount of $300. The amended abstract of judgment, however, does
not list the section 1202.44 fines. Accordingly, the amended abstract of judgment must
be modified to list the probation revocation restitution fine under section 1202.44 of $300
in both cases, which are now due.
Walters contends that the trial court appeared to impose the "additional restitution
fine" under section 1202.45, but it improperly increased the fine amount. Walters argues

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that the appropriate remedy is to strike the "additional restitution fine" of $900 in case
SCN329905 and $1,200 in case SCN351956. The Attorney General asserts that the
additional restitution fines of $900 and $1,200 listed in the June 15, 2017 minute orders
were imposed under section 1202.45 and must be reduced to $300. We agree with the
Attorney General.
Section 1202.45 requires the court to impose a parole revocation fine in the same
amount of the restitution fine "[i]n every case where a person is convicted of a crime and
his or her sentence includes a period of parole." (§ 1202.45, subd. (a).) Although an
appellate court cannot correct the trial court's failure to impose a discretionary fine if no
objection was raised in the trial court (People v. Tillman (2000) 22 Cal.4th 300), the
imposition of a parole revocation fine under section 1202.45 (which first requires the
imposition of a restitution fine under section 1202.4) is mandatory and may be corrected
by an appellate court despite Tillman. (People v. Smith (2001) 24 Cal.4th 849, 853.)
Here, the amended minute orders and the amended abstract of judgment properly
include a parole revocation restitution fine under section 1202.45 in the correct amount of
$300. The parole revocation restitution fine is suspended and becomes payable if Walters
begins serving a period of parole and his parole is revoked.
The amended minutes, however, also include additional restitution fines of $900
and $1,200. The Attorney General cited no authority for these additional restitution fines,
and these additional restitution fines were properly omitted from the amended abstract of
judgment. Accordingly, the June 15, 2017 amended minute orders should be modified to
strike the additional restitution fines of $900 and $1,200.

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DISPOSITION
The trial court is directed to modify: (1) the amended abstract of judgment to list
the probation revocation restitution fine under section 1202.44 of $300 in cases
SCN329905 and SCN351956, which are now due; and (2) the June 15, 2017 amended
minute orders in cases SCN329905 and SCN351956 to strike the additional restitution
fines of $900 and $1,200. As so modified, the judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.

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