Filed 5/19/16 P. v. Ruiz 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F068737
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF241607J)
                   v.

FELIX CORRAL RUIZ II,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
         Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       Appellant Felix Corral Ruiz II, was tried before a jury with his codefendant, Joe
Valdez Dominguez.1 Before the trial completed, appellant negotiated a plea agreement
for a sentence of 35 years in state prison. The parties agreed he would waive his right to
appeal. No agreement or discussion occurred on the record regarding how the 35 years
would be calculated.
       Appellant raises three issues on appeal. First, the parties agree, as do we, that the
court imposed an unauthorized sentence in calculating the 35-year term. As a result,
appellant seeks an opportunity to withdraw his plea. Respondent objects, contending
appellant is estopped from challenging the sentence following the plea bargain. Because
appellant received the benefit of his bargain, we agree with respondent that appellant is
estopped from now challenging the sentence despite the sentencing error.
       Regarding appellant’s two other contentions, we disagree that the fees and
assessments imposed under Health and Safety Code sections 11372.5 and 11372.7 were
unauthorized and should be stricken. However, we agree that the abstract of judgment
contains clerical errors. We order correction of the abstract but otherwise affirm.
                                     BACKGROUND
       The facts of appellant’s criminal conduct are not material to his contentions on
appeal. He was charged by information with seven counts: conspiracy (Pen. Code,
§ 182, subd. (a)(1)2; counts 1, 5 & 6); attempted murder (§§ 664/187, subd. (a); counts 2
& 3); shooting at an inhabited dwelling (§ 246; count 4); and participation in a criminal
street gang (§ 186.22, subd. (a); count 7).
       The following special allegations were alleged: appellant had a prior felony
conviction (§ 667.5, subd. (b); counts 1-7); a principal personally and intentionally


1      Dominguez is not a party to this present appeal.
2      All future statutory references are to the Penal Code unless otherwise noted.


                                              2.
discharged a firearm at two victims (§ 12022.53, subds. (d) & (e)(1); counts 1-4); and the
crime was punishable in the state prison for life and was committed for the benefit of, at
the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(5),
(b)(1)(C) & (b)(1)(A); counts 1-3, 5 & 6).
       Appellant pleaded no contest to two counts of attempted murder (§§ 664/187;
counts 2 & 3). Regarding both counts, and as part of the plea agreement, he pleaded no
contest that (1) a handgun was personally and intentionally discharged by a principal in
the commission of the offenses (§ 12022.53, subd. (c)); and (2) the crimes were
committed for the benefit of, at the direction of, or in association with a criminal street
gang (§ 186.22, subd. (b)(1)(C)). He also pleaded no contest to a charge of conspiracy to
transport a controlled substance (§ 182, subd. (a)(1); Health & Saf. Code, § 11379;
count 5). The four remaining counts against him were dismissed.
       At the change of plea hearing, the court advised appellant of his various rights, but
the court never asked appellant if he understood he was waiving his right to appeal. For
count 2, appellant was sentenced to state prison for a total of 35 years consisting of five
years for the attempted murder, plus an additional and consecutive 20 years for the
firearm enhancement pursuant to section 12022.53, subdivision (c), and an additional and
consecutive 10 years for the gang enhancement pursuant to section 186.22, subdivision
(b)(1)(C). Count 3 was sentenced identically as count 2, which was to run concurrently.
For count 5, he was sentenced concurrently to state prison for three years. Various fees
and fines were imposed.3




3      Appellant was also sentenced in companion case No. VCF207169 to a total of six
years in state prison to run concurrently to the instant matter. As discussed in section III
below, the abstract of judgment, which lists the convictions in both cases, contains
clerical mistakes for both matters.


                                              3.
       Appellant filed a notice of appeal, and a certificate of probable cause was issued.
Via a handwritten notation, the certificate was limited to a wiretap issue that is not
relevant to the present appeal.
                                       DISCUSSION
I.     Appellant Is Estopped From Challenging His Sentence.
       As an initial matter, appellant maintains he may bring the present appeal despite
his agreement to waive appellate rights. He further contends the handwritten notation on
the certificate of probable cause does not limit the issues he can raise on appeal.
Respondent neither directly disputes appellant’s arguments nor provides legal authority
challenging these contentions.
       We agree with appellant that the handwritten notation on the certificate of
probable cause does not limit the scope of his appeal rights. (People v. Hoffard (1995) 10
Cal.4th 1170, 1180 [appellate court is permitted to consider cognizable issues in addition
to those identified in a defendant’s written statement to obtain a certificate of probable
cause].) Further, although this record demonstrates that the parties agreed appellant
would waive his appeal rights as part of the plea bargain, this record does not establish
that appellant ever gave a knowing and intelligent waiver of those rights. Appellant did
not orally waive his appeal rights before the trial court and no change of plea form
appears in the appellate record. Accordingly, we will address appellant’s contentions.
       A sentence enhancement for participation in a criminal street gang may not be
imposed on a person in addition to an enhancement under section 12022.53, “unless the
person personally used or personally discharged a firearm in the commission of the
offense.” (§ 12022.53, subd. (e)(2).) Here, appellant only admitted that a principal
personally discharged a firearm. Thus, we agree with the parties that the court imposed
an unauthorized 10-year term for the gang enhancement pursuant to section 186.22,
subdivision (b)(1)(C).



                                             4.
       Appellant contends he should be permitted to withdraw his plea. In the
alternative, he requests a remand for the trial court to determine whether he can be
lawfully sentenced within the terms of the plea bargain. If he cannot be lawfully
sentenced, he maintains he should then be permitted to withdraw his plea. Respondent
argues appellant is estopped from challenging the sentence, citing People v. Hester
(2000) 22 Cal.4th 290 (Hester).
       In Hester, supra, 22 Cal.4th 290, the defendant entered no contest pleas to felony
assault, burglary, misdemeanor battery, misdemeanor vandalism, and attempting to
dissuade a witness. He admitted he personally used a dangerous or deadly weapon in the
commission of the felony assault, and he entered the residence with intent to commit
felony assault. In exchange for his pleas, the defendant agreed to a term of four years in
state prison. A four-year prison sentence was imposed for the burglary count, with
concurrent three-year terms for the felony assault and dissuading counts, and concurrent
jail terms for the misdemeanor counts. (Id. at p. 293.)
       On appeal, the defendant claimed, in part, that sentencing error occurred when the
three-year term for the assault count was not stayed pursuant to section 654. (Hester,
supra, 22 Cal.4th at p. 294.) The Court of Appeal found sentencing error and modified
the judgment to stay the term for the felony assault under section 654. However, the
Supreme Court reversed the appellate court. (Hester, at p. 297.) In granting its review,
the Supreme Court analyzed whether California Rules of Court, former rule 412(b)4 is
invalid because it conflicts with section 654. (Hester, at p. 293.)
       Former rule 412(b) provided: “By agreeing to a specified prison term personally
and by counsel, a defendant who is sentenced to that term or a shorter one abandons any
claim that a component of the sentence violates [Penal Code] section 654’s prohibition of

4     Former rule 412 of California Rules of Court was renumbered rule 4.412 and
amended effective January 1, 2001. All future references to rules are to the California
Rules of Court unless otherwise noted.


                                             5.
double punishment, unless that claim is asserted at the time the agreement is recited on
the record.” In reversing, Hester noted that a section 654 claim is ordinarily not waived
from a failure to object in the trial court. (Hester, supra, 22 Cal.4th at p. 295.) Hester,
however, also noted an exception to this rule: “Where the defendants have pleaded guilty
in return for a specified sentence, appellate courts will not find error even though the trial
court acted in excess of jurisdiction in reaching that figure, so long as the trial court did
not lack fundamental jurisdiction. The rationale behind this policy is that defendants who
have received the benefit of their bargain should not be allowed to trifle with the courts
by attempting to better the bargain through the appellate process. [Citations.]” (Ibid.,
original italics.)
       Hester found that the defendant’s acceptance of the plea bargain was an implicit
waiver of section 654 rights, and it found no conflict between rule 412(b) and section
654. (Hester, supra, 22 Cal.4th at p. 295.) The Supreme Court stated: “‘When a
defendant maintains that the trial court’s sentence violates rules which would have
required the imposition of a more lenient sentence, yet the defendant avoided a
potentially harsher sentence by entering into the plea bargain, it may be implied that the
defendant waived any rights under such rules by choosing to accept the plea bargain.’
[Citation.]” (Ibid.)
       Appellant contends Hester is distinguishable as it dealt with section 654, and he
argues Hester should not apply because he is not asking this court to reduce his sentence.
He also points to rule 4.412(a), which states: “It is an adequate reason for a sentence or
other disposition that the defendant, personally and by counsel, has expressed agreement
that it be imposed and the prosecuting attorney has not expressed an objection to it. The
agreement and lack of objection must be recited on the record. This section does not
authorize a sentence that is not otherwise authorized by law.”
       Here, appellant entered a plea of no contest in return for a specified sentence.
Although the trial court acted in excess of jurisdiction regarding how it reached the

                                              6.
35-year prison term, the trial court did not lack fundamental jurisdiction. Under the
holding and reasoning in Hester, it is implied that appellant waived any claim of
sentencing error because he received the benefit of his bargain and avoided a potentially
harsher sentence. (Hester, supra, 22 Cal.4th at p. 295.) Appellant is not allowed to
improve his bargaining position through the appellate process.
       Moreover, although Hester dealt with section 654, the Supreme Court relied upon
People v. Couch (1996) 48 Cal.App.4th 1053 (Couch) in rendering its opinion. (Hester,
supra, 22 Cal.4th at p. 295.) Couch did not involve section 654.
       In Couch, the defendant pleaded no contest to a single count of forgery and
admitted a prior serious felony conviction within the meaning of section 667,
subdivisions (b) through (i). The admissions were part of a plea bargain to accept a
32-month state prison sentence. The trial court imposed the agreed sentence, and the
defendant appealed, asserting that sentencing error occurred because the trial court failed
to sentence him under section 1170 rather than section 667, subdivisions (b) through (i).
The defendant asserted that his prior conviction did not qualify for treatment under
section 667 as it occurred prior to the enactment of these provisions. (Couch, supra, 48
Cal.App.4th at pp. 1055, 1057-1058.) Couch dismissed these contentions, finding that
the defendant accepted the plea bargain for a specific term which included an admission
of a prior conviction allegation which would necessarily result in a sentence under
section 667, subdivisions (b) through (i), rather than section 1170. It was further noted
that the trial court could have imposed a longer sentence than the agreed upon term. The
defendant was deemed estopped from challenging his sentence because he accepted it.
(Couch, at p. 1058.)
       Here, similar to Couch, appellant accepted the plea bargain for a specific term,
which included enhancement admissions under section 12022.53, subdivision (c), and
section 186.22, subdivision (b)(1)(C). It necessarily resulted that appellant’s sentence
would be based upon those admissions. Appellant is estopped from challenging the

                                             7.
legality of how that sentence was construed following his agreement. (See Couch, supra,
48 Cal.App.4th at p. 1058.)
       Our conclusion is also supported by this court’s opinion in People v. Miller (2012)
202 Cal.App.4th 1450 (Miller). In Miller, the defendant appealed the trial court’s denial
of his motion to vacate his plea and modify his conviction from a felony to a
misdemeanor. (Id. at p. 1452.) On appeal, the Attorney General conceded that the plea
agreement was in error because appellant pleaded no contest to felony possession of
diazepam (Valium), but possession of diazepam is at most a misdemeanor. (Id. at
p. 1455 & fn. 3; Health & Saf. Code, § 11375, subd. (b)(1).) This court agreed that error
occurred in charging and accepting the plea as a felony. However, Miller concluded the
defendant was estopped from vacating his plea and modifying his conviction. (Id. at pp.
1452-1453.)
       After analyzing the relevant case law, Miller noted the defendant was advised
before sentencing regarding the consequences of a plea agreement. The defendant’s
criminal conduct was deemed serious and jeopardized the safety and well-being of other
motorists when he drove his vehicle far in excess of the speed limits while under the
influence of diazepam. The record made no indication that the prosecution would have
been unable to prove the remaining felony charged in the complaint (felony possession of
Vicodin), or that the sentence imposed for that felony would have been different from the
actual sentence imposed. Miller determined the case did not involve the wrongful
conviction of an innocent person, or a legal mistake so egregious that vacating the plea
was the only equitable result. (Miller, supra, 202 Cal.App.4th at pp. 1459-1460.)
       Here, similar to Miller, appellant was advised before sentencing regarding the
consequences of a plea agreement. Appellant’s admitted criminal conduct was serious
and there is no indication that the prosecution would have been unable to prove the
remaining felonies charged against him. This case does not involve an innocent person
wrongfully convicted.

                                            8.
       Appellant cites People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567
(Sanchez); People v. Ramirez (1995) 33 Cal.App.4th 559 (Ramirez); and People v. Baries
(1989) 209 Cal.App.3d 313 (Baries) as authority that an illegal sentence cannot stand
even if it is the result of a negotiated plea. These authorities do not alter our conclusion.
       First, in Sanchez, the defendant negotiated a plea that was unauthorized by law
because it required a penalty not available for the crime. At sentencing, the trial court
reformed the plea bargain by reducing the penalty to the authorized term. The People
filed a petition with the appellate court seeking a writ directing the trial court to vacate
the plea bargain. The appellate court concluded that the trial court exceeded its
jurisdiction by reforming the negotiated plea because it denied the People the benefit of
their bargain. (Sanchez, supra, 223 Cal.App.4th at pp. 569-570.) In reaching this
conclusion, Sanchez noted that each party benefits from a negotiated plea agreement.
The People obtain a guilty or no contest plea, often with an agreed prison term, while the
defendant obtains less severe punishment. Contract principles are used to interpret
negotiated plea agreements. (Id. at pp. 572-573.) Once the parties agree to the terms,
both parties must abide by the terms. “Once the trial court approves the plea bargain, it
cannot change the agreement without the consent of the parties. [Citation.] The court
lacks jurisdiction to alter the terms and must impose a sentence within the limits of the
bargain.” (Id. at p. 573.)
       Sanchez noted that the plea should not have been entered into because it was
defective. It determined that the judgment must be reversed, the plea vacated, and the
parties placed back in their respective positions before the plea bargain. Sanchez held
that the trial court erred by denying the People’s request to vacate the plea, and by
imposing an alternative sentence. (Sanchez, supra, 223 Cal.App.4th at p. 577.) The
lower court was directed to vacate the sentence and the plea bargain, reinstate the
dismissed counts, and the defendant was allowed to withdraw his no contest plea. (Id. at
pp. 577-578.)

                                              9.
       Here, unlike in Sanchez, the trial court entered a sentence that complied with the
parties’ agreement and it did not impose a lesser term of imprisonment. Neither party
made a request to vacate the plea in the lower court. Sanchez did not analyze the doctrine
of estoppel and it is distinguishable.
       Second, in Ramirez, supra, 33 Cal.App.4th 559, the prosecution appealed from a
judgment of conviction following a guilty plea by the defendant. The plea agreement
contemplated a seven-year sentence in state prison, which the trial court imposed. In
doing so, the trial court did not double a burglary term as prescribed in section 667,
subdivision (e)(1), which would have resulted in a nine-year sentence. (Ramirez, at
pp. 561-562.) On appeal, Ramirez determined the defendant’s sentence should have been
nine years instead of seven, and the seven-year sentence was unauthorized. Because the
defendant pleaded guilty with the understanding he would receive a seven-year sentence,
the matter was remanded to permit the defendant an opportunity to withdraw his plea if
he so desired. (Id. at pp. 574-575.)
       Here, unlike in Ramirez, the sentencing error did not result in a longer sentence
than what the parties agreed, triggering the need to give appellant an opportunity to
withdraw his plea. Ramirez did not analyze estoppel, and it predated the Supreme
Court’s opinion in Hester, supra, 22 Cal.4th 290. Ramirez does not establish that the
present matter must be remanded.
       Finally, in Baries, supra, 209 Cal.App.3d 313, the defendant pleaded guilty to
various charges. When she committed the crimes, the defendant was on bail for offenses
committed in another county for which she was later sentenced to prison. The trial court
imposed a sentence that was to run concurrently with the sentence in the other county.
Concurrency was an express condition of the plea. However, the district attorney
objected that the concurrent sentences were unauthorized by law. The trial court
dismissed the objection and imposed the concurrent sentences. On appeal, however, the
Baries court determined that the concurrent sentences were unauthorized. (Id. at pp. 316-

                                            10.
317.) The sentence was vacated and the defendant was given the opportunity to
withdraw her plea because it could not be honored. (Id. at p. 319.)
       Here, unlike in Baries, neither party objected in the lower court regarding the
imposition of this sentence. Although Baries vacated the sentence because the sentence
was unauthorized, Baries did not analyze estoppel, and it predated the Supreme Court’s
opinion in Hester, supra, 22 Cal.4th 290. Baries is distinguishable.
       Based on the foregoing, appellant is estopped from now challenging the sentence.
He received the benefit of his negotiated agreement.

II.    The Fees And Assessments Under Health And Safety Code Sections 11372.5
       And 11372.7 Were Properly Imposed.
       Appellant asserts that the fees imposed under Health and Safety Code sections
11372.5 and 11372.7 were unauthorized. He asks this court to strike them.
       A.     Background.
       Regarding count 5, appellant pleaded no contest to conspiracy to commit a crime
in violation of Health and Safety Code section 11379. At sentencing, the court imposed
$600 in fees and penalty assessments for count 5 (conspiracy), which consisted, in part,
of $50 pursuant to Health and Safety Code section 11372.5, and $100 pursuant to Health
and Safety Code section 11372.7.
       B.     Standard of review.
       It is a pure question of law whether penalty assessments should be imposed.
Accordingly, a de novo standard of review is used on appeal. (People v. Moore (2015)
236 Cal.App.4th Supp. 10, 14.)
       C.     Analysis.
       Appellant contends the fees imposed pursuant to Health and Safety Code sections
11372.5 and 11372.7 do not apply to a conspiracy conviction. He relies upon People v.
Vega (2005) 130 Cal.App.4th 183 (Vega). He further argues his counsel rendered
ineffective assistance if this issue is deemed forfeited on appeal.


                                             11.
       Respondent asserts that appellant forfeited this issue on appeal because he failed to
object to the fees and assessments at sentencing. If forfeiture did not occur, respondent
relies principally upon People v. Sharret (2011) 191 Cal.App.4th 859 (Sharret) for the
proposition these fees were properly imposed.
              1.      Appellant forfeited this issue.
       “Ordinarily, a criminal defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right to raise the claim on
appeal. [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880.) The forfeiture rule
generally applies to sentencing. (Id. at p. 881.)
       Here, appellant failed to challenge below the assertedly erroneous imposition of
these fees. Accordingly, he is deemed to have forfeited his right to raise this claim on
appeal. In any event, we also reject his arguments on the merits.
              2.      The fees were properly imposed.
       Following a conviction for conspiracy, the defendant is to be punished “in the
same manner and to the same extent as is provided for the punishment of that felony.”
(§ 182, subd. (a).) “[Health and Safety Code] sections 11372.5 and 11372.7 each require
the court to impose specified fees on defendants convicted of certain specified drug
offenses. Each such fee is to be collected by the local county and used under [Health and
Safety Code] section 11372.5, subdivision (b) to offset the administrative costs of
laboratory testing of suspected drug samples, and under [Health and Safety Code] section
11372.7, subdivision (c) to fund local drug abuse treatment and prevention programs.”
(People v. Moore, supra, 236 Cal.App.4th Supp. at p. 15, fn. omitted.)
       Here, the court imposed $600 in fees and penalty assessments for count 5
(conspiracy), which consisted, in part, of $50 pursuant to Health and Safety Code section
11372.5, and $100 pursuant to Health and Safety Code section 11372.7. The issue is
whether these fees constituted “punishment” such that the court properly imposed them
against appellant for his conspiracy to commit the drug offense. (§ 182, subd. (a).)

                                               12.
                     a.     Health and Safety Code section 11372.5.
       Health and Safety Code section 11372.5 imposes a “criminal laboratory analysis
fee” on defendants who are convicted of enumerated drug offenses, including a violation
of Health and Safety Code section 11379. (Health & Saf. Code, § 11372.5, subd. (a).)
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 the criminal laboratory analysis fee under
Health and Safety Code section 11372.5. In Vega, supra, 130 Cal.App.4th 183, the
Second District Court of Appeal (Division Seven) concluded that this fee did not qualify
as “punishment” within the meaning of section 182, subdivision (a), and the fee was
improperly imposed upon the defendants who were convicted of conspiracy to transport
cocaine. (Vega, at pp. 185, 194-195.) Appellant urges this court to follow Vega.
       In contrast, in Sharret, supra, 191 Cal.App.4th 859, the Second District Court of
Appeal (Division Five) concluded that this same fee constituted punishment. (Id. at
p. 869.) Respondent urges us to follow Sharret. 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
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.”



                                             13.
(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, supra, 130 Cal.App.4th 183, the appellate court acknowledged that “[a]
cogent argument can be made from the language of Health and Safety Code section
11372.5, subdivision (a) 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
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

                                             14.
proceeds from the fee must be deposited into a special ‘criminalistics laboratories fund’
maintained in each county by the county treasurer.” (Ibid.)
       We find Sharret more persuasive than Vega 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); Pen. Code, §§ 1205, 1464.8.) Other courts have found this 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” such that the court
properly imposed it against appellant under Penal Code section 182, subdivision (a).
(Sharret, supra, 191 Cal.App.4th at p. 870.)
                     b.     Health and Safety Code section 11372.7.
       Health and Safety Code section 11372.7 imposes a “drug program fee” not to
exceed $150 on defendants convicted of drug offenses, including a violation of Health
and Safety Code section 11379. (Health & Saf. Code, § 11372.7, subd. (a).) The
Legislature authorized sentencing courts to “increase the total fine, if necessary, to
include this increment, which shall be in addition to any other penalty prescribed by law.”
(Ibid.) The sentencing court is to determine if the defendant has the ability to pay this
fee, and, if so, a reasonable amount is imposed. (Id., at subd. (b).)
       In People v. Sierra (1995) 37 Cal.App.4th 1690 (Sierra), this court ruled that
Health and Safety Code section 11372.7 “is a fine and/or a penalty to which the penalty
assessment provisions of Penal Code section 1464 and Government Code section 76000
apply.” (Sierra, at p. 1696.) This court concluded that the interchangeable use of the

                                             15.
terms fee and fine, coupled with the “‘any other penalty’” language signaled that the drug
program fee was penal in nature. (Id. at pp. 1695-1696.)
       Based on the prior holding of this court in Sierra, supra, 37 Cal.App.4th 1690, the
fee under Health and Safety Code section 11372.7 constituted punishment. Accordingly,
the court properly imposed it against appellant. (§ 182, subd. (a).)5
III.   The Abstract Of Judgment Contains Clerical Errors.
       The parties agree that the abstract of judgment contains the following clerical
errors. Four enhancements under section 12022.53, subdivision (c), are listed, two of
which are marked as “stayed.” However, the trial court imposed sentence on this
enhancement only twice.
       In addition, a total of three prior prison terms are listed under section 667.5,
subdivision (b). At sentencing, however, the trial court imposed sentence only once
pursuant to section 667.5, subdivision (b).
       We agree that these corrections must be made. (People v. Mitchell (2001) 26
Cal.4th 181, 185 [abstract of judgment may not add to or modify the trial court’s oral
pronouncement of judgment].) Accordingly, the trial court shall prepare an amended
abstract of judgment that strikes the two stayed enhancements pursuant to section
12022.53, subdivision (c); and the two stayed enhancements pursuant to section 667.5,
subdivision (b).
       A disagreement exists, however, regarding appellant’s final contention. For
companion case No. VCF207169, the abstract lists enhancement allegations pursuant to
section 12022, subdivision (c), and Health and Safety Code section 11370.2, subdivision
(c). When sentencing appellant, the sentencing court did not orally impose these


5       Because the imposition of these fees was proper, we reject appellant’s contention
that his counsel rendered ineffective assistance for not objecting in the lower court.
Counsel need not make meritless objections to avoid an appellate claim of ineffective
assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432.)


                                              16.
enhancements. Appellant contends these enhancements must be stricken from the
abstract. Respondent objects and contends these enhancements appear in the probation
report so they should not be struck.
       Generally, the court’s oral pronouncement of judgment prevails over the abstract
of judgment to the extent there is a conflict. (People v. Delgado (2008) 43 Cal.4th 1059,
1070.) When a discrepancy exists between the court’s oral pronouncement of judgment
and the abstract of judgment, the abstract must be amended. (People v. Mitchell, supra,
26 Cal.4th at pp. 185-186.)
       Here, at sentencing, the court did not pronounce sentence regarding section 12022,
subdivision (c), or Health and Safety Code section 11370.2, subdivision (c).
Accordingly, the abstract must be amended to reflect the oral pronouncement of sentence.
                                       DISPOSITION
       This matter is remanded to the trial court to correct the abstract of judgment as
follows: the court shall strike (1) the two stayed enhancements pursuant to Penal Code
section 12022.53, subdivision (c); (2) the two stayed enhancements pursuant to Penal
Code section 667.5, subdivision (b); (3) the stayed enhancement pursuant to Penal Code
section 12022, subdivision (c); and (4) the stayed enhancement pursuant to Health and
Safety Code section 11370.2, subdivision (c). The trial court shall then forward the
amended abstract of judgment to the appropriate authorities. The judgment is otherwise
affirmed.
                                                                 _____________________
                                                                       LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.


                                            17.
