P. v. Anderson

Filed 3/13/18 P. v. Anderson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH DEMONT
ANDERSON,
Defendant and Appellant.
B282516
(Los Angeles County
Super. Ct. No. GA098719)
APPEAL from judgments of the Superior Court of Los
Angeles County, Stanley Blumenfeld, Judge. Affirmed with
directions.
Brad Kaiserman, under appointments by the Court of
Appeal, for Defendants and Appellants.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Colleen M. Tiedemann and

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Rene Judkiewicz, Deputies Attorney General, for Plaintiff
and Respondent.
_______________________
Defendant and appellant Kenneth Demont Anderson
was convicted by jury of sale of cocaine base (Health & Saf.
Code, § 11352, subd. (a)).1 Defendant was sentenced to nine
years in state prison. The court imposed the low term of
three years, which it doubled under the three strikes law due
to defendant’s prior conviction of robbery (Pen. Code, § 211).
The court imposed an additional three years pursuant to
section 11370.2 based on defendant’s prior conviction under
section 11352. The court imposed a $50 laboratory fine
pursuant to section 11372.5 plus a $145 penalty assessment.
Defendant raises two issues on appeal. He argues that
an amendment to section 11370.2, operative January 1,
2018, eliminates the three-year enhancement for prior
convictions of section 11352. The Attorney General properly
concedes defendant is correct, and we accordingly order the
enhancement stricken. Defendant further argues the $145
penalty assessment was improperly imposed on the section
11372.5 laboratory fine, but if it was, the amount of the
penalty assessment was not properly detailed in the abstract
of judgment. We conclude the penalty assessment was
properly imposed under section 11372.5, and that the
1 Further statutory references are to the Health and
Safety Code unless otherwise indicated.

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abstract of judgment must be amended to reflect the penalty
assessment. In all other respects, we affirm.
DISCUSSION
Application of Amended Section 11370.2
At the time of defendant’s probation and sentence
hearing, section 11370.2 provided for a three-year
enhancement for specified felony convictions, including
defendant’s prior conviction under section 11352. The trial
court imposed the statutory enhancement.
Section 11370.2 was amended effective January 1,
2018, to eliminate the three-year enhancement for prior
convictions under section 11352.2 Defendant contends, and
the Attorney General properly concedes, that defendant is
entitled to the ameliorative benefit of the statutory
amendment. (People v. Brown (2012) 54 Cal.4th 314, 323
2 As amended, section 11370.2 provides as follows: “(a)
Any person convicted of a violation of, or of a conspiracy to
violate, Section 11351, 11351.5, or 11352 shall receive, in
addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate,
and consecutive three-year term for each prior felony
conviction of, or for each prior felony conviction of conspiracy
to violate, Section 11380, whether or not the prior conviction
resulted in a term of imprisonment.” As can be seen from
the amendment, a prior conviction under section 11352 is no
longer a basis for the three-year enhancement.

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[“When the Legislature has amended a statute to reduce the
punishment for a particular criminal offense, we will
assume, absent evidence to the contrary, [fn. omitted] that
the Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the
statute’s operative date”].)
The three-year enhancement under section 11370.2
must be stricken upon issuance of the remittitur.
Penalty Assessment Under Section 11372.5
In 1998, this court held that section 11372.5,
subdivision (a), requires a trial court to impose a criminal
laboratory analysis fee in the amount of $50 for violation of a
designated Health and Safety Code offense. (People v.
Martinez (1998) 65 Cal.App.4th 1511, 1519 (Martinez).) We
agreed with the Attorney General’s argument that the $50
fee “is also subject to mandatory penalty assessments
pursuant to [Penal Code] sections 1202.4, subdivision (a)(2),
1464, and Government Code section 76000.” (Id. at p. 1520.)
Defendant argues our decision in Martinez was incorrect,
and that the penalty assessments do not apply to the
laboratory analysis fee.
We have continued to follow the reasoning in Martinez
(People v. Sharret (2011) 191 Cal.App.4th 859 (Sharret)), and
several decisions are in accord with Martinez. (People v.
Alford (2017) 12 Cal.App.5th 964, 974–977, review granted
Sept. 13, 2017, S243340; People v. Moore (2017) 12

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Cal.App.5th 558, 563–571, review granted Sept. 13, 2017,
S243387;3 People v. Turner (2002) 96 Cal.App.4th 1409,
1416; People v. Sierra (1995) 37 Cal.App.4th 1690, 1694–
1696.) Our Supreme Court has stated that “subdivision (a)
of Penal Code [fn. omitted] section 1464 and subdivision (a)
of Government Code section 76000 call[] for the imposition of
state and county penalties” on the laboratory analysis fee.
(People v. Talibdeen (2002) 27 Cal.4th 1151, 1153.) Some
recent authority takes the contrary view that the penalty
assessments do not attach to the section 11372.5 fee. (People
v. Watts (2106) 2 Cal.App.5th 223, 229–237; People v.
Martinez (2017) 15 Cal.App.5th 659, 662–669; People v.
Webb (2017) 13 Cal.App.5th 486, 493–499.) Until directed
otherwise by our Supreme Court, we will follow this
division’s decision in Martinez.
3 Review was granted in Alford and Moore for the
following reason: “Petition for review after the Court of
Appeal modified and affirmed a judgment of conviction of
criminal offenses. The court limited review to the following
issue: May a trial court properly impose a criminal
laboratory analysis fee (Health & Saf. Code, § 11372.5, subd.
(a)) and a drug program fee (Heath & Saf. Code, § 11372.7,
subd. (a)) based on a defendant’s conviction for conspiracy to
commit certain drug offenses?” The instant case does not
involve a conspiracy charge.

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The Abstract of Judgment
Defendant’s remaining contention is that the abstract
of judgment does not identify each component of the penalty
assessments that attach to the section 11372.5 fee. In
Sharret, supra, 191 Cal.App.4th at page 864, we observed
that “[i]n Los Angeles County, trial courts frequently orally
impose the penalties and surcharge discussed above by a
shorthand reference to ‘penalty assessments.’ The
responsibility then falls to the trial court clerk to specify the
penalties and surcharge in appropriate amounts in the
minutes and, more importantly, the abstract of judgment.
This is an acceptable practice.” In a similar vein, our
colleagues in the Third District have held, “Although we
recognize that a detailed recitation of all the fees, fines and
penalties on the record may be tedious, California law does
not authorize shortcuts. All fines and fees must be set forth
in the abstract of judgment. (People v. Sanchez (1998) 64
Cal.App.4th 1329, 1332 [laboratory fee]; People v. Hong
(1998) 64 Cal.App.4th 1071, 1080 [restitution fine].) The
abstract of judgment form used here, Judicial Council form
CR–290 (rev. Jan.1, 2003) provides a number of lines for
‘other’ financial obligations in addition to those delineated
with statutory references on the preprinted form. If the
abstract does not specify the amount of each fine, the
Department of Corrections cannot fulfill its statutory duty to
collect and forward deductions from prisoner wages to the
appropriate agency. (Hong, supra, 64 Cal.App.4th at

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pp. 1078–1079.) At a minimum, the inclusion of all fines and
fees in the abstract may assist state and local agencies in
their collection efforts. (Pen. Code, § 1205, subd. (c).)”
(People v. High (2004) 119 Cal.App.4th 1192, 1200.)
Here, the minute order from the probation and
sentence hearing reflects a penalty assessment of $145 based
on the $50 crime laboratory analysis fee, but it does not
identify the component parts of the penalty assessment. The
abstract of judgment reflects the $50 section 11370.2 fee, but
contains no mention of the $145 penalty assessment. An
amended abstract of judgment is required to set forth the
total amount and component parts of the $145 penalty
assessment.

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DISPOSITION
The three-year enhancement under Health and Safety
Code section 11370.2 is stricken. The clerk of the superior
court is to prepare an amended abstract of judgment
reflecting the new term of imprisonment and the component
parts of the $145 penalty assessment on the crime laboratory
analysis fee. In all other respects, the judgment is affirmed.
KRIEGLER, Acting P.J.
We concur:
BAKER, J.
KIM, J.
 Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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