Filed 2/26/14 P. v. Boyer CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058143

v.                                                                       (Super.Ct.No. FVA1201148)

RICHARD KEITH BOYER,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,

Judge. Affirmed.

         Rex Adam Williams, under appointment by the Court of Appeal, for Defendant

and Respondent.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Kristen

Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.




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        A jury convicted defendant Richard Keith Boyer of felony possession of a

controlled substance (count 1; Health & Saf. Code, § 11377, subd. (a)).1 The court

granted defendant three years’ probation with various terms and conditions including a

requirement that he pay a $246 criminal laboratory fee pursuant to section 11372.5. On

appeal, defendant contends the court erred in ordering payment of the fee as a condition

of his probation. We affirm.

                        FACTS AND PROCEDURAL HISTORY

        On May 18, 2012, Fontana Police Department Corporal Daniel Delgado noticed a

pickup truck abruptly turn in front of him, cutting him off, and forcing him to slam on his

brakes. Delgado activated his emergency lights in order to conduct a traffic stop to

investigate whether the driver was intoxicated. The driver, defendant, immediately

leaned over the right hand, passenger side of the truck’s cab for the 30 to 45 seconds it

took him to pull over and stop.

        Out of concern defendant may have been reaching for a gun, Delgado asked

defendant to step out of the vehicle; Delgado then detained and handcuffed defendant.

Delgado requested additional officers respond to the scene. Within a few minutes, other

officers, including officer Joshua Rice, arrived. Delgado turned the investigation over to

Rice.

        When Rice arrived, he saw defendant sitting on the curb with Delgado next to him.

Rice spoke with Delgado. Rice then obtained permission from defendant to search the

        1
        All further statutory references are to the Health and Safety Code unless
otherwise indicated.

                                             2
vehicle. Based on his conversation with Delgado, Rice opened the door of the truck to

search for a firearm. Instead, Rice saw a small, clear Ziploc baggie on the floorboard of

the passenger side of the vehicle just underneath the front edge of the seat. He testified,

“There was a white crystalline substance inside of the baggie” which resembled

methamphetamine. Rice booked the baggie into evidence. The parties stipulated the

baggie contained 0.24 grams of methamphetamine, a useable amount.

       Rice then searched defendant. In defendant’s front short pants’ pocket, Rice found

a “cylindrical plastic pen with the tips broken off.” He testified “There was a white

crystalline residue inside of the pen which I also believed to be methamphetamine

residue.” Hollowed out pens are commonly used to ingest methamphetamine by inhaling

or snorting. Rice opined the pen “was a narcotic ingestion device specifically for

snorting methamphetamine.”

       Defendant testified that although the truck belonged to him, he had loaned it to his

brother and had not driven it in two weeks. The pen was not his. He found it on the

floorboard of this truck that day and placed it in his pocket. The methamphetamine found

in his vehicle was not his. He had never seen it before Rice discovered it. Defendant

leaned over the seat while Delgado was pulling him over in order to retrieve a Pepsi

which had rolled off the seat. Defendant also reached over to his glove box to obtain his

vehicle registration.

       The probation report prepared in advance of defendant’s sentencing recommended

probation term 22 require defendant pay a laboratory analysis fee in the amount of $50

pursuant to section 11372.5, plus a penalty assessment of $150, and a processing fee of

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$35 pursuant to Penal Code section 1205, subdivision (d), for a total of $235.2 At the

sentencing hearing, defense counsel objected to term 20; the court struck term 20.

Defense counsel then submitted. Defendant accepted probation on the terms outlined in

the probation report.

       The sentencing minute order reflects that term 19 of defendant’s probation

conditions requires that he pay a criminal lab analysis fee in the amount of $246.

Someone circled the $235 amount in the probation report and wrote in $246. The court

made no oral pronouncement of the amount of the criminal lab analysis fee. There is no

indication in the record why the recommended amount was changed from $235 to $246.

                                      DISCUSSION

       Defendant contends the requirement defendant pay a $246 criminal analysis fee as

a condition of his probation is unauthorized and must be modified to reflect payment as a

separate order and not as a condition of his probation. The People maintain payment of

the fee is appropriate as a condition of defendant’s probation because it was intended to

be punitive. We agree with the People.

       “A trial court has broad, but not unlimited, discretion in setting the terms and

conditions of probation. [Citations.] On appeal, we review the trial court’s exercise of

       2  Penal Code section 1205 does not specify the amount of either a penalty
assessment or a processing fee. Subdivision (d) provides “Nothing in this section shall be
construed to prohibit the clerk of the court, or the judge if there is no clerk, from turning
these accounts over to another county department or a collecting agency for processing
and collection.” Subdivision (a) reflects, “The judgment shall specify the term of
imprisonment for nonpayment of the fine, which shall not be more than one day for each
thirty dollars ($30) of the fine, nor exceed the term for which the defendant may be
sentenced to imprisonment for the offense of which he or she has been convicted.”

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that discretion under the abuse of discretion standard. ‘A condition of probation will not

be held invalid unless it “(1) has no relationship to the crime of which the offender was

convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids

conduct which is not reasonably related to future criminality . . . .” [Citation.]’

[Citations.] All three factors must be present for a condition of probation to be invalid.

[Citation.] Furthermore, ‘[i]nsofar as a probation condition serves the statutory purpose

of “reformation and rehabilitation of the probationer,” [citation] it necessarily follows

that such a condition is “reasonably related to future criminality” and thus may not be

held invalid whether or not it has any “relationship to the crime of which the offender

was convicted.”’ [Citation.] A trial court does not abuse its discretion unless its

determination is arbitrary or capricious or ‘“‘exceeds the bounds of reason, all of the

circumstances being considered.’”’ [Citation.]” (People v. Hughes (2012) 202

Cal.App.4th 1473, 1479 (Fourth Dist., Div. Two).)

       Section 11372.5, subdivision (a), provides that every person convicted of certain

enumerated crimes, including possession of a controlled substance, “pay a criminal

laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.”

Subdivision (b) prescribes that the “county treasurer shall maintain a criminalistics

laboratories fund. The sum of fifty dollars ($50) shall be deposited into the fund for

every” enumerated crime “in addition to fines, forfeitures, and other moneys which are

transmitted by the courts to the county treasurer pursuant to Section 11502. The deposits

shall be made prior to any transfer pursuant to Section 11502. The county may retain an

amount of this money equal to its administrative cost incurred pursuant to this section.

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Moneys in the criminalistics laboratories fund shall, except as otherwise provided in this

section, be used exclusively to fund (1) costs incurred by criminalistics laboratories

providing microscopic and chemical analyses for controlled substances, in connection

with criminal investigations conducted within both the incorporated or unincorporated

portions of the county, (2) the purchase and maintenance of equipment for use by these

laboratories in performing the analyses, and (3) for continuing education, training, and

scientific development of forensic scientists regularly employed by these laboratories.”

       The criminal laboratory analysis fee was related to the crime for which defendant

was convicted. A jury convicted defendant of possession of a controlled substance. The

parties stipulated “The white crystalline substance seized by Officer Joshua Rice on May

18, 2012[,] was analyzed by James Vaughn, a qualified forensic criminalist for the San

Bernardino Sheriff’s Department, under methods currently accepted in the scientific

community, and was found [to] be 0.24 grams of methamphetamine. [¶] That 0.24

grams of methamphetamine is a useable quantity.” Therefore, imposition of the fee as a

condition of defendant’s probation was a valid exercise of the sentencing court’s

discretion.

       Defendant relies on People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco),

for the proposition that nonpunitive fees cannot be imposed as a condition of a

defendant’s probation, but must be made by a separate order. Pacheco held that “Certain

fines such as those relating to restitution, for example, may by statute be imposed as

conditions of probation, but the court security fee is not one of them. [Citations.] One

reason for the distinction between fines that may be imposed as probation conditions and

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those that may not is that probation ‘should be oriented towards rehabilitation of the

defendant and not toward the financing of the machinery of criminal justice.’ [Citations.]

An equally compelling reason for the distinction is that a defendant may be imprisoned

for violating a probation condition, but not for violating an order to pay costs and fees.

[Citation.] The nonpunitive purpose of [a] fee squarely places it among those fines and

fees that are collateral to the crime and the consequent punishment for its commission.”

(Id. at pp. 1402-1403, disapproved of on another ground in People v. McCullough (2013)

56 Cal.4th 589, 599; accord People v. Kim (2011) 193 Cal.App.4th 836, 842 [court

facilities fees].) The People apparently agree with Pacheco’s statement of the law, but

contend the criminal laboratory fee is punitive and, therefore, was appropriately imposed

as a condition of defendant’s probation. We agree with the People.

       First, in reaching its holding, Pacheco relied upon several cases which held that

discretionary, nonpunitive fees could not be imposed as conditions of probation. In

People v. Hall (2002) 103 Cal.App.4th 889, the court held that the nonpunitive,

nonmandatory fees of the costs of probation supervision and the preparation of probation

reports could not be made conditions of probation because they could only be imposed

after the court determined the defendant was financially able to pay them. (Id. at p. 892.)

In Brown v. Superior Court (2002) 101 Cal.App.4th 313, the court held the costs of

polygraph testing could not be made a condition of probation because the court had to

determine defendant’s financial ability to pay them prior to imposing them. (Id. at pp.

321-322.) In People v. Amor (1974) 12 Cal.3d 20, the court held a defendant could not

be held in violation of probation for failure to pay defense attorney fees because the order

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was nonpunitive and required a court determination of ability to pay. (Id. at pp. 25-27.)

Here, in contrast to the cases relied upon by Pacheco, the criminal laboratory analysis fee

is mandatory; (People v. Taylor (2004) 118 Cal.App.4th 454, 456) the court has no

discretion to reduce or waive the fee based upon a defendant’s inability to pay. (People

v. Sharret (2011) 191 Cal.App.4th 859, 870; People v. Talibdeen (2002) 27 Cal.4th 1151,

1153.)

         Second, courts have imposed laboratory analysis fees as a condition of probation

without objection either in the trial court or on appeal. (People v. Mendoza (2003) 106

Cal.App.4th 1030, 1032; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069.) Third,

other courts have found that section 11372.5 fees are mandatorily imposed punitive fines.

(People v. Clark (1992) 7 Cal.App.4th 1041, 1050 [Imposition of § 11372.5 fee is

mandatory and not, in itself, improperly imposed as a condition of probation unless not

disclosed in negotiated plea bargain because it is punitive.]; People v. Martinez (1998) 65

Cal.App.4th 1511, 1522; People v. Taylor, supra, 118 Cal.App.4th at p. 456 [Imposition

of § 11372.5 fee is mandatory]; People v. Turner (2002) 96 Cal.App.4th 1409, 1413

[§ 11372.5 fee is a mandatory penalty assessment]; People v. Talibdeen, supra, 27

Cal.4th at p. 1152 [Laboratory analysis fee imposed by Court of Appeal because it was a

mandatory penalty, not a discretionary sentencing choice].) Fourth, similar, related fees

have also been imposed as a condition of probation and found punitive. (People v. Sierra

(1995) 37 Cal.App.4th 1690, 1694-1696 [§ 11372.7 drug program fee is punitive];

Martinez, at p. 1522.)



                                              8
       Fifth, section 11327.5 itself only permits imposition of a $50 fee. However, it

incorporates other fines and forfeitures ordered pursuant to section 11502. Section 11502

permits the disposition of other fines imposed by the court. Penal Code section 1464.8

provides for the allocation and distribution of fines and penalties assessed in criminal

cases pursuant to sections 11372.5 and 11502. Thus, when construed in the context of

the statutory scheme as a whole, section 11327.5 fees are mandatory, punitive fines, not

discretionary fees.

        Sixth, although the People note no published case squarely addresses the issue of

whether a section 11372.5 fee may be imposed as a condition of probation, they observe

there is direct, extensively exposited authority for the proposition that a section 11372.5

fee is punitive. In People v. Sharret, supra, 191 Cal.App.4th 859, after an exhaustive

analysis of the fines and fees which may or must be imposed upon conviction and the

cases interpreting them, the court explicated eight reasons for concluding that “the

Legislature intended the section 11372.5 criminal laboratory analysis fee to be punitive.”

(Id. at pp. 869, 870.)

       Sharret reasoned the language of section 11372.5, provides that the laboratory

analysis fee is actually an increment of a fine and, therefore, punitive. (People v. Sharret,

supra, 191 Cal.App.4th at pp. 869-870.) It noted the fee may only be imposed upon a

criminal conviction and has no application in a civil context. (Id. at p. 870.) “[T]he fee is

assessed in proportion to a defendant’s culpability insofar as it applies to each separate

conviction of a violation of specified” offenses. (Ibid.) The fee is mandatory and not

subject to a determination of the defendant’s ability to pay. (Ibid.) The fees are used for

                                              9
law enforcement purposes. (Ibid.) “[S]ection 11372.5 contains no language suggesting

the Legislature intended to exempt the criminal laboratory analysis fee from section 654.

[Citations.]” (Id. at p. 870.) There was no evidence the fee was a “mere budget

measure” like other statutory fees. (Ibid.) Finally, the total amount of the fee, $180 in

the Sharret case and $246 in the instant case, is substantially greater than other

procedural funding fees such as a court security fee ($30). (Ibid.) Therefore, the criminal

laboratory analysis fee is punitive in nature. (Ibid.)

       The court in People v. Vega (2005) 130 Cal.App.4th 183, 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.” (Id. at p. 194,

italics added.) This is because the statute itself refers to the “fee” as a “fine” which may

be imposed in increasing increments with respect to the number of offenses committed in

addition to any other “penalty” prescribed by law. (Id. at p. 194; § 11372.5, subd. (a).)

Indeed, in Vega, at page 194, the court found support for such an interpretation in the

language of People v. Talibdeen, supra, 27 Cal.4th 1151, in which the California

Supreme Court referred to imposition of a section 11372.5, subdivision (a),“fee” as a

trigger requiring the levy of a mandatory, not “discretionary-sentencing choice” of other

“penalties.”(Talibdeen, at pp. 1153-1154.)

       Nevertheless, the court in Vega found Talibdeen “not controlling . . . because the

court did not address the question whether the laboratory analysis fee was a punishment.

Rather, the court and the parties in Talibdeen proceeded under the assumption the fee was

                                             10
a punishment and addressed the question whether the trial court had discretion to waive

the penalty assessments.” (People v. Vega, supra, 130 Cal.App.4th at p. 195.) It found

the label of a levy as a “fee” or “fine” not a dispositive indicator of an intent to be

punitive, particularly when the Legislature uses both terms in reference to the charge in

the same statute. (Ibid.) Contrariwise, the court noted “Fines are imposed for retribution

and deterrence; fees are imposed to defray administrative costs.” (Ibid.)

       The court held “the main purpose of . . . 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.” (People v. Vega, supra, 130 Cal.App.4th at p. 195.) It

reasoned that “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.)

       We find Sharett the more persuasive of the two conflicting decisions. Although,

section 11327.5 refers to the charge as a “fee,” it both internally, and through

consideration of the related statutes, reflects that it is both a fine and a penalty.

(§§ 11372.5, 11502, Pen. Code, §§ 1205, 1464.8.) The base criminal laboratory analysis

“fee” is only $50, a fraction of the total “increment” of the $246 penalty imposed in this

case. Numerous courts have found the “fee” mandatory and punitive. (People v. Sharret,

supra, 191 Cal.App.4th at pp. 869-870; People v. Clark, supra, 7 Cal.App.4th at p. 1050;

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People v. Martinez, supra, 65 Cal.App.4th at p. 1522; People v. Taylor, supra, 118

Cal.App.4th at p. 456; People v. Turner, supra, 96 Cal.App.4th at p. 1413; People v.

Talibdeen, supra, 27 Cal.4th at p. 1152.) Some have imposed the fee as a condition of

probation. (People v. Mendoza, supra, 106 Cal.App.4th at p. 1032; People v. Valtakis,

supra, 105 Cal.App.4th at p. 1069.) The fee is related to the crime for which defendant

was convicted. Thus, the court acted within its discretion in imposing the fee as a

condition of defendant’s probation.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                          J.

We concur:


HOLLENHORST
          Acting P. J.


McKINSTER
                          J.




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