People v. WebbPeople v. Webb
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Factual and Procedural History
Defendant was charged by amended information with driving or taking a vehicle without consent after a prior conviction (
Because defendant does not challenge the sufficiency of the evidence in support of his convictions, a detailed summary of the trial evidence is unnecessary. We set forth only a summary of basic facts to provide context for the discussion that follows.
A police officer testified that on August 31, 2015, at approximately 3:00 p.m., he received notification that a stolen vehicle was traveling in a nearby area. He drove to the area where he located the stolen car parked with defendant sitting in the driver‘s seat. The officer observed defendant exit the car and walk behind a set of parked cars. When the officer then detained defendant, he refused to identify himself but stated that he had an identification card in his pants pocket. The officer retrieved a California driver‘s license from defendant‘s pocket. Defendant “didn‘t necessarily look like the same person” as depicted on the license. The officer confronted defendant and asked for his real name and defendant responded that his name is David Donald Webb.
After arresting defendant, the officer walked the route that defendant had taken after exiting the stolen car and recovered from beside the parked cars a small box containing 2.129 grams of methamphetamine and a small electronic scale. Video from the citywide surveillance system showed defendant dropping the box out of his pocket as he walked behind the parked cars. During defendant‘s booking search following his arrest, the officer found in defendant‘s pocket six personal bank checks in the name of other individuals, intermingled with other personal items. The officer also recovered from defendant two cell phones, one of which contained text messages and emails relating to drug transactions. Finally, a search of defendant‘s home uncovered additional methamphetamine and indicia of drug sales.
The jury found defendant guilty as charged and the court found the enhancement allegation to be true. The court denied probation and imposed a five-year sentence consisting of two years in county jail and three years of mandatory supervision. The court imposed, among other fees, a $190 criminal laboratory analysis fee (
Defendant timely filed a notice of appeal.
1. The Williamson Rule
“Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] . . . [¶] Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) ‘each element of the general statute corresponds to an element on the face of the special statute’ or (2) when ‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.’ [Citation.] In its clearest application, the rule is triggered when a violation of a provision of the special statute would inevitably constitute a violation of the general statute. . . . [¶] On the other hand, if the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely. . . . [¶] However, that the general statute contains an element not within the special statute does not necessarily mean that the Williamson rule does not apply. ‘It is not correct to assume that the [Williamson] rule is inapplicable whenever the general statute contains an element not found within the four corners of the “special” law. Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the “special” statute will necessarily or commonly result in a violation of the “general” statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.’ ” (People v. Murphy (2011) 52 Cal.4th 81, 86-87.)
Defendant contends that his trial attorney provided ineffective assistance in failing to move to dismiss the felony identity theft charge under
Providing false personal identification information to a police officer would, as defendant argues, necessarily establish a violation of the two misdemeanor statutes. That act would not be sufficient, however, to support a conviction for identity theft. To establish a violation of
As argued by the Attorney General,
2. Penalty Assessments on Health and Safety Code Fees
The trial court imposed a criminal laboratory analysis fee under
Penalty assessment are monetary charges which, “when applicable, inflate the total sum imposed on the defendant by increasing certain charges by percentage increments. All current penalty assessments are legislatively expressed as a certain dollar amount ‘for every ten dollars ($10), or part of ($10),’ for the particular fine, penalty, or forfeiture that is subject to the assessments. [Citation.] Thus, for example, if the base fine is $100 and the penalty assessment is $2 for every $10 imposed, the penalty assessment increases the defendant‘s base fine by $20, or 20 percent. If the same penalty assessment is imposed on a base fine of $105, the penalty assessment is $22, and the percentage increase is slightly more than 20 percent.” (Watts, supra, 2 Cal.App.5th at p. 228.) Penalty assessments imposed under the Penal and Government Codes mandate additional assessments upon every “fine, penalty, or forfeiture” imposed in a criminal case. (See, e.g.,
In People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 (Martinez), the court extended the reasoning of Sierra to conclude the criminal laboratory analysis fee imposed under section 11372.5 is also a fine and therefore subject to mandatory penalty assessments. The court held: “Under the reasoning of Sierra, we conclude
However, in Watts, supra, 2 Cal.App.5th at page 231, the court concluded, contrary to the above authority, that the criminal laboratory analysis fee is a fee rather than a fine and, thus, is not subject to penalty assessments. In reaching this conclusion, the Watts court rejected the Martinez courts’ interpretation of the first paragraph of
The Watts court acknowledged the “interpretive difficulty” posed by the second paragraph of subdivision (a), which calls for imposition of “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” in criminal cases involving an offense ” ‘for which a fine is not authorized by other provisions of law.’ ” (Watts, supra, 2 Cal.App.5th at p. 237.) The court concluded that under this provision, “the crime-lab fee acts as a fine and is, in turn, subject to penalty assessments.” (Id. at p. 235.) The court explained, however, that as there are at present no offenses for which a fine is not authorized by other provisions of law, the “second paragraph of section
Finally, the Watts court rejected the argument that the California Supreme Court‘s decision in People v. Talibdeen (2002) 27 Cal.4th 1151, 1153 compels the conclusion that the levies are fines or penalties. In that case, the court held that penalty assessments are “mandatory—and not discretionary—sentencing choices” and upheld the imposition of penalty assessments on the
More recently, in People v. Moore (2017) 12 Cal.App.5th 558, 560, the court rejected the reasoning in Watts and agreed with earlier decisions that “the levy imposed under section 11372.5 constitutes a fine or penalty that is subject to penalty assessments.”8 The court observed initially that “Section 11372.5 uses four different terms to refer to the same levy. Subdivision (a) describes the levy as a ‘criminal
laboratory analysis fee,’ ‘a fine,’ an ‘increment,’ and a penalty to be imposed ‘in addition to any other penalty prescribed by law.’ [Citations.] Thus, the labels used by section 11372.5, by themselves, do not clearly answer whether the levy is a fee or a fine or penalty.” (Moore, supra, pp. 563-564.) Nonetheless, the court reasoned that “the language of the statute and the weight of case authority” leads to the conclusion the criminal laboratory analysis fee constitutes a fine or penalty for purposes of penalty assessments. The court reasoned that such an interpretation was necessary to avoid rendering the second paragraph a “nullity” as the Watts court had done (Moore, supra, p. 570) and that “[e]ven if the interplay of base and total fines is imprecisely drawn, the Legislature‘s redundant inclusion of language granting the trial court the ability to increase the total fine in addition to any other penalty suffices to make section 11372.5 subject to penalty assessments” (Moore, supra, p. 571).
The court also rejected the conclusion in Watts that the statute serves an administrative purpose. The court agreed that the determination of whether a charge is a “fee” or “fine” can be made, in most cases, ” ‘on the basis of the purpose of the charge imposed. Fines are imposed for retribution and deterrence; fees are imposed to defray administrative costs.’ ” (People v. Moore, supra, 12 Cal.App.5th at p. 564.) Unlike the courts in Watts and Vega, the court in Moore concluded that “Section 11372.5 appears to have the dual purposes of a fee and a fine. Subdivision (b) of section 11372.5 provides that the levy be deposited by the county treasurer in a criminalistics laboratories fund. The county may thus ‘retain an amount of this money equal to its administrative cost incurred pursuant to this section.’ [Citation.] Thus, subdivision (b) signals a fee purpose to the levy. Subdivision (c) proceeds to
The clear conflict between these decisions presumably will require resolution by our Supreme Court. Pending such clarification, we consider the reasoning in Watts more persuasive. We are inclined to agree with the observation of the appellate division in People v. Moore (2015) 236 Cal.App.4th Supp. 10, 16, that the attempt to resolve the issue based on the plain language of the statutes is “a fool‘s errand.” As that court delicately expressed the matter, “The language used by the Legislature on that topic in this series of code sections at work in fine and fee calculations is, to be polite, too imprecise to permit any reasonable conclusion on that subject to be drawn.” (Ibid.) The various statutory provisions in question unquestionably use the terms “fee,” “fine” and “penalty” interchangeably and inconsistently, so that any attempt to discern the Legislature‘s intent from the precise wording of the statutes is futile. We agree with the court in Vega (130 Cal.App.4th at p. 195) and the Court of Appeal in Moore (12 Cal.App.5th at p. 564) that whether a charge is a fee or a fine is normally determined by the purpose for which the charge is imposed. In our view, this criterion is dispositive in the absence of clear statutory language to the contrary.
Alford, supra, 42 Cal.4th 749 is instructive. In Alford, the court held that the court security fee (
We reach a similar conclusion with regard to the drug program fee.
As in Alford, neither of the fees is tethered to the seriousness of defendant‘s criminal conduct. The criminal laboratory analysis fee is a fixed $50. The drug program fee may not exceed $150 and the sliding scale is based not on severity of the offense but on the defendant‘s ability to pay. Neither fee is sufficiently great to serve as a deterrent. (See Alford, supra, 42 Cal.4th at p. 759 [“It is inconceivable that defendant would have decided not to commit his crime had he known in advance that this $20 fee would be imposed.“].)
3. Attorney Fees
Here, the trial court ordered defendant to pay a $500 attorney fee. In response to defendant‘s request that the fees be waived based on his indigent status, the court explained that attorney fees are “not one of the discretionary fines and fees, so the court would not be willing to waive.” Although phrased as a request to “waive” the fees, trial counsel‘s objection must be understood as asserting an objection based on defendant‘s inability to pay attorney fees. On appeal, defendant clearly asserts that he is indigent and contends that the trial court “was wrong that it did not have discretion not to impose the attorney‘s fees.”
The Attorney General argues that a trial court “has no authority to simply waive attorney‘s fees for a defendant with the ability to pay.” While that may be correct, the court did not find that defendant has the ability to pay the attorney fees. Rather, the court concluded that it was compelled to impose the fees on defendant, apparently without regard to his ability to pay them. The probation report contains little information about defendant‘s ability to pay attorney fees, indicating that he is a 33 year old man without a high school diploma who has spent the last 15 years of his life either detained or on parole or probation. Since defendant‘s ability to pay the fees appears questionable, to say the least, we must remand the matter for a determination under
The matter is remanded for recalculation of the criminal laboratory analysis and drug program fees without the addition of penalty assessments and a determination of defendant‘s ability to pay attorney fees under
Pollak, J.
We concur:
McGuiness, P. J.
Siggins, J.
Trial court: Contra Costa County Superior Court
Trial judge: Honorable Diana Becton
Counsel for plaintiff and respondent: Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, and Dorian Jung, Deputy Attorney General, for Plaintiff and Respondent.
Counsel defendant and appellant: Alex Green
A147740