People v. Sharret
191 Cal. App. 4th 859
| Cal. Ct. App. | 2011Background
- Defendant Tyrone Sharret was convicted of possession for sale and sale of heroin under Health and Safety Code sections 11351 and 11352.
- He admitted priors: three prior prison terms under Penal Code 667.5(b) and a prior drug conviction under Health and Safety Code 11370.2(a).
- At trial, heroin was handed from Sharret to another person, who handed it to a third, and then to an undercover officer; Sharret was arrested, searched, and found with additional heroin and $107 cash.
- Sentence: six years total—three years on count 2 plus a three-year 11370.2(a) enhancement; count 1 stayed under Penal Code 654(a); a $30 court security fee and a $30 court facilities assessment were ordered consecutive to count 2; and the 667.5(b) enhancements were stricken.
- Count 2 imposed various fines and fees, including a $200 restitution fine, a $200 parole restitution fine, a $50 criminal laboratory analysis fee and a $150 drug program fee plus penalties/surcharges; the abstract omitted the 11372.7 drug program fee, though imposed orally.
- Appointed counsel filed a Wende brief; on appeal the court requested briefing on whether the laboratory analysis fee and drug program fee with penalties should be stayed under 654 and whether the judgment and penalties were correctly reflected; the record was reviewed in camera.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 11372.5 laboratory analysis fee should be imposed on both counts. | Attorney General argues both counts incur 11372.5. | Sharret did not object; the fee may be improper on one count if not triggered. | Yes; 11372.5 applies to both counts. |
| Whether 11372.5 and associated penalties are punitive and thus stayed under 654 when the related count was stayed. | If punitive, 654 requires staying the fee on the stayed count. | If nonpunitive, no stay is required. | The laboratory analysis fee is punitive and must be stayed for the stayed count under 654. |
| Whether the 11372.7 drug program fee is properly imposed and stayed under 654, and whether ability-to-pay affects imposition. | Drug program fee was properly imposed with penalties; possible availability to pay not shown. | Filed/absent explicit ability-to-pay for count 1; no error if not imposed on count 1. | 11372.7 is punitive and subject to stay on count 1; presumption defendant lacked ability to pay a second drug program fee on count 1; no error in staying. |
| What is the proper abstract of judgment and penalties reflecting the stayed and imposed fees on counts 1 and 2. | Oral imposition controls; minutes/abstract must reflect penalties and surcharges as stated. | Abstract should align with oral pronouncement and modified on appeal. | Judgment modified to reflect $50 laboratory analysis fee on both counts with penalties/surcharges; count 1 stayed; abstract corrected on remittitur. |
Key Cases Cited
- People v. Knightbent, 186 Cal.App.4th 1105 (Cal. App. 4th Dist. 2010) (analysis of penalties and fees under 11372.5)
- People v. Castellanos, 175 Cal.App.4th 1524 (Cal. App. 2d Dist. 2009) (interpretation of penalties and penalties assessments)
- People v. Hanson, 23 Cal.4th 355 (Cal. 2000) (restitution fines are punishment for double jeopardy purposes)
- People v. Alford, 42 Cal.4th 749 (Cal. 2007) (court security fee nonpunitive; contextual analysis of punitive vs nonpunitive fees)
- People v. Batman, 159 Cal.App.4th 587 (Cal. App. 3d Dist. 2008) (DNA penalty assessment as punitive ex post facto law)
- People v. Crittle, 154 Cal.App.4th 368 (Cal. App. 2d Dist. 2007) (654 stay when sentence stayed for the stayed offense)
- People v. Le, 136 Cal.App.4th 925 (Cal. App. 4th Dist. 2006) (analysis of punishment character of penalties)