P. v. Day

Filed 9/25/17 P. v. Day CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL STERLING DAY,
Defendant and Appellant.
H043843
(Santa Cruz County
Super. Ct. Nos. F28717, F28743)
Defendant Michael Sterling Day was sentenced to state prison after pleading
guilty to two counts of possessing methamphetamine for sale. For each conviction, the
trial court imposed a Health and Safety Code section 11372.5 “criminal laboratory
analysis fee” as well as penalty assessments. We affirmed defendant’s convictions in a
separate appeal after defendant’s appellate counsel filed a brief citing People v. Wende
(1979) 25 Cal.3d 436 (Wende). (People v. Day (Dec. 20, 2016, H043232).) Defendant
filed the instant appeal after the trial court denied his postjudgment request to strike the
penalty assessments imposed on the Health and Safety Code section 11372.5 levy.
(Pen. Code, § 1237.2.) Defendant argues that the $50 levy imposed under Health and
Safety Code section 11372.5 is a fee rather than a fine or penalty, meaning that it is not
subject to penalty assessments. For the reasons stated here, we will affirm the judgment.

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I. TRIAL COURT PROCEEDINGS
Because the facts of defendant’s convictions are irrelevant to the issue raised on
appeal, we summarize only the procedural history of the case. Defendant was charged in
two cases with a total of two counts of possessing methamphetamine for sale. (Health &
Saf. Code, § 11378; unspecified statutory references are to this Code.) Each complaint
alleged five prior prison terms (Pen. Code, § 667.5, subd. (b)) and one prior strike
conviction (Pen. Code, § 667, subds. (b)–(i)).
Defendant pleaded guilty to the charges and admitted the special allegations. At
sentencing, the trial court dismissed the prior strike conviction allegation (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497) and struck all but two of the prior prison
term allegations. The court sentenced defendant to four years, eight months in state
prison. For each case, the trial court imposed a $50 “Lab Fee” (citing § 11372.5,
subd. (a)) and $155 in what we will refer to collectively as penalty assessments.
Defendant appealed his sentence in case No. H043232. While that appeal was
pending, defendant’s appellate counsel asked the trial court to strike the penalty
assessments imposed on the $50 section 11372.5 levy. After the trial court denied that
request, defendant filed a new notice of appeal, which led to the instant case. After filing
the second notice of appeal, defendant’s appellate counsel filed a Wende brief in case
No. H043232, and did not reference this second appeal in that brief. We filed an opinion
in case No. H043232, affirming the judgment after finding no arguable issues. (People v.
Day (Dec. 20, 2016, H043232).)
II. DISCUSSION
A. TIMELINESS AND REVIEWABILITY
The People argue we “impliedly considered and rejected” defendant’s argument
about section 11372.5 when we affirmed the judgment in case No. H043232. The People
suggest that by filing a Wende brief in case No. H043232 after learning that the trial court

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had denied the request to strike the penalty assessments, defendant forfeited any
challenge to those assessments.
Defendant responds that his argument about section 11372.5 was separately
appealable under Penal Code section 1237.2, which provides: “An appeal may not be
taken by the defendant from a judgment of conviction on the ground of an error in the
imposition or calculation of fines, penalty assessments, [etc.] ... unless the defendant first
presents the claim in the trial court at the time of sentencing, or if the error is not
discovered until after sentencing, the defendant first makes a motion for correction in the
trial court, which may be made informally in writing.” Defendant argues he had to
separately file and prosecute the issue to prevent the risk of forfeiture. He compares the
instant procedural posture to an appeal from a postjudgment order awarding victim
restitution, noting that a defendant must separately appeal such a postjudgment order.
(Citing People v. Denham (2014) 222 Cal.App.4th 1210, 1214.)
Defendant prudently filed a separate notice of appeal to preserve the section
11372.5 issue. But he risked forfeiting that issue by not requesting consolidation of this
case with case No. H043232 (or at least mentioning the section 11372.5 issue in his
Wende brief). We will nonetheless consider the merits of the issue because the second
appeal is timely and we did not expressly decide the issue in our previous opinion.
B. PENALTY ASSESSMENTS APPLY TO SECTION 11372.5
Section 11372.5, subdivision (a) 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.” The parties’ dispute turns on whether

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the $50 levied under section 11372.5, subdivision (a) for each offense is a fee rather than
a fine or penalty. We review issues of statutory interpretation de novo.
The penalty assessments imposed here apply to fines and penalties, but not to fees.
(E.g., Pen. Code, § 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
offenses.”].) If the $50 levy is a fee, penalty assessments would be improper. The parties
note a split of authority on the subject, with a recent case—People v. Watts (2016)
2 Cal.App.5th 223 (Watts)—determining that section 11372.5 involves a fee. We will
summarize Watts as well as a more recent case that disagrees with it—People v. Moore
(2017) 12 Cal.App.5th 558 (Moore)—and then explain why we agree with Moore and the
weight of published authority that the section 11372.5 levy is a fine or penalty.
1. People v. Watts
Watts involved a challenge to the imposition of penalty assessments on a
section 11372.5 levy. (Watts, supra, 2 Cal.App.5th at p. 226.) The court noted there are
three types of monetary charges imposed on criminal defendants: fines and penalties that
are intended to punish defendants; fees meant to pay for government programs or
administrative costs; and penalty assessments that inflate fines and penalties by
percentage increments. (Id. at p. 228.) The court noted an “internal inconsistency” in the
language of section 11372.5, subdivision (a); the first paragraph refers to the levy as a
fee, but the second paragraph characterizes it as a fine. (Watts, at p. 231.) The Watts
court determined that the fee characterization in the first paragraph should control
because the second paragraph applies “only to offenses ‘for which a fine is not authorized
by other provisions of law’ ” and “there are currently no such offenses,” meaning the
second paragraph describes a “null set.” (Id. at pp. 234, 236.) The Watts court also
reasoned that the levy is not punitive because it is a fixed amount that is imposed to
defray administrative costs. (Id. at p. 235.) The court concluded that “the most sensible

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interpretation is that the Legislature intended the crime-lab fee to be exactly what it called
it in the first paragraph, a fee, and not a fine, penalty, or forfeiture subject to penalty
assessments.” (Id. at p. 231.) More recently, another division of the First District agreed
with Watts and concluded that because the “criminal laboratory analysis fee and drug
program fee are nonpunitive, the trial court erred by imposing penalty assessments on
those fees.” (People v. Webb (2017) 13 Cal.App.5th 486, 499.)
2. People v. Moore
Moore involved the Court of Appeal’s reversal of a published decision by the
Appellate Division of the Nevada County Superior Court that had determined the section
11372.5 levy was a fee. (Moore, supra, 12 Cal.App.5th at p. 560.) The Moore court
noted that section 11372.5, subdivision (a) uses four different terms to refer to the same
levy: fee, fine, increment, and penalty. (Moore, at p. 563.) The court reasoned that the
levy has the “dual purposes of a fee and a fine” because section 11372.5, subdivision (b)
discusses placing funds in a criminalistics laboratories fund (consistent with a fee) but
subdivision (c) of that section requires any surplus funds to be distributed “ ‘in
accordance with the allocation scheme for distribution of fines and forfeitures set forth in
Section 11502’ ” (consistent with a fine). (Moore, at p. 565.) Interpreting the levy as a
fine was consistent with the statutory language because the levy “is described as a
component of the total fine, indicating it is itself a fine.” (Ibid.) The court noted that
section 11372.5, subdivision (a) states that the levy is to be imposed “ ‘in addition to any
other penalty,’ ” meaning that “the subdivision equates the levy with other penalties.”
(Moore, at p. 565.) The Moore court based its interpretation in part on the California
Supreme Court’s decision in People v. Talibdeen (2002) 27 Cal.4th 1151, 1157
(Talibdeen), which held that penalty assessments under Penal Code section 1464 and
Government Code section 76000 are mandatory and affirmed the application of penalty
assessments to a section 11372.5 levy. (Moore, at p. 566.) Interpreting the levy as a fine
was also consistent with intermediate appellate decisions dating back to 1998. (Id. at

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pp. 566–567; citing People v. Martinez (1998) 65 Cal.App.4th 1511, 1520 (Martinez).)
The Moore court observed that, despite those longstanding judicial interpretations, the
Legislature has never taken action to abrogate them. (Moore, at p. 571.)
Disagreeing with the conclusion in Watts, Moore reasoned that Watts “too easily
dismisses the second paragraph of section 11372.5, subdivision (a)” and essentially
rendered that paragraph surplusage. (Moore, supra, 12 Cal.App.5th at pp. 569–570.)
The Moore court’s conclusion that the levy is a fine interprets “all of subdivision (a) to be
in harmony with a purpose to impose a fine or penalty,” meaning “there is no language in
the subdivision that serves as a mere nullity.” (Ibid.) The Moore court concluded that,
“based on the language of the statute as a whole, the aim to avoid rendering any part of
the section mere surplusage, the weight of the case authority including consistent
California Supreme Court authority, and the fact the Legislature has not amended the
statute to diverge from the holdings in those cases, ... the levy constitutes a fine or
penalty.” (Id. at p. 565.) A later Court of Appeal decision disagreed with Watts and
reached the same conclusion as Moore. (People v. Alford (2017) 12 Cal.App.5th 964,
967, fn. 2, review granted Sept. 13, 2017, S243340 (Alford).)
3. The Penalty Assessments Were Proper
Defendant urges us to follow Watts and determine that the section 11372.5 levy is
a fee upon which penalty assessments cannot be imposed. But we are persuaded by the
Moore court’s analysis, as well as that of other appellate courts that have reached the
same conclusion. (See Martinez, supra, 65 Cal.App.4th at p. 1520; 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.) And as
the Moore court noted, interpreting the section 11372.5 levy as a fee 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,

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supra, 27 Cal.4th at pp. 1153–1154, 1157.) Though the court in Talibdeen did not
determine the precise issue presented here, the Court of Appeal decision that the Supreme
Court affirmed would be incorrect if the section 11372.5 levy were a fee rather than a
fine or penalty upon which penalty assessments could be based. The penalty assessments
were properly imposed here.
III. DISPOSITION
The judgment is affirmed.

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____________________________________
Grover, J.
WE CONCUR:
____________________________
Rushing, P. J.
____________________________
Premo, J.

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