Opinion
D071414
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DUANE LITTLE, Defendant and Appellant.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD268739) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Judgment stricken in part, affirmed in part, and remanded with directions. Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
Defendant Anthony Duane Little was charged with one count of possession of a controlled substance for sale (Health & Saf. Code, § 11378). It was alleged that he had five prior drug convictions (former § 11370.2, subd. (c)), four prior convictions for which he had served time in prison (former Pen. Code, § 667.5, subd. (b)), and that he was not eligible for probation due to six prior felony convictions (Pen. Code, § 1203, subd. (e)(4)). He agreed to plead guilty to the single charge of possession of a controlled substance for sale and to admit one prior drug conviction, with a stipulated sentence of six years in prison, split between three years in local custody and three years of mandatory supervision. The prosecutor agreed to dismiss the remaining allegations. He was sentenced accordingly on November 29, 2016, to the upper term of three years on his conviction for sale of a controlled substance and the mandatory term of three years on the prior drug conviction enhancement. The court imposed the terms and conditions of his mandatory supervision. Little requested that his fines and fees be reduced but did not otherwise object to the conditions of his mandatory supervision.
Further statutory references are to the Health and Safety Code unless otherwise specified.
Little appealed, challenging some of the conditions of his mandatory supervision, including the imposition of electronic monitoring conditions and the imposition of a restitution fine of $1,500 under Penal Code section 1202.4. We affirmed the conviction in part and reversed in part, remanding the case to the trial court to modify the mandatory supervision condition that required him to report any contact with law enforcement, limiting the duty to report to instances in which law enforcement officers requested identification from him. (People v. Little (Jan. 25, 2018, D071414) [nonpub. opn.] (Little I).)
The Supreme Court granted review on the issue of the electronic monitoring condition, and transferred the case back to this court with directions to vacate the decision and to reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113. Accordingly, we now vacate our prior opinion (Little I).
DISCUSSION
1. Issues Regarding Mandatory Supervision Conditions Are Moot
After transfer back to this court, we granted Little the opportunity to file a supplemental brief and gave the People an opportunity to respond. Little filed a supplemental letter brief stating that he is no longer on mandatory supervision. The People did not file a responsive brief. Little informed us that his mandatory supervision was revoked on August 6, 2019, and he was ordered to serve the remaining 566 days of his term in custody. We grant Little's unopposed request to take judicial notice of the trial court's August 6, 2019 minute order.
Little's motion to expedite this appeal is moot in light of this opinion.
Little's challenges to the conditions of mandatory supervision are moot because he is no longer subject to any of the conditions of mandatory supervision.
2. Restitution Fine
Enforcement of restitution fines continues after mandatory supervision ends, in the manner provided for the enforcements of money judgments generally. (Pen. Code, § 1214, subd. (a); People v. Willie (2005) 133 Cal.App.4th 43, 49.) The issue of the restitution fine is not moot even though Little is no longer on mandatory supervision.
At sentencing, Little asked the court to reduce the proposed restitution fine of $1,800 due to his inability to pay. The court imposed a restitution fine of $1,500 and ordered that all fines and fees be paid from Little's jail wages and trust account pursuant to Penal Code section 2085.5. Little argued on appeal that the trial court misinterpreted the formula for imposing a fine in Penal Code section 1202.4, subdivision (b)(2), or that it was an abuse of discretion in light of Little's receipt of social security disability insurance. We incorporate the portion of our prior opinion discussing this issue, and find no error for the reasons stated in our prior opinion. (Little I, at p. *11.)
3. Error in Laboratory Analysis and Drug Program Fines
A probation officer recommended that a drug program fine of $615 and a laboratory analysis fine of $205 be imposed, both fines including penalty assessments. Little asked the court at sentencing not to impose the drug program fee (§ 11372.7), and to impose only the minimum criminal laboratory analysis fee of $50 (§ 11372.5), due to his inability to pay. The court imposed a drug program fee of $200 and a lab analysis fee of $50. Penalty assessments were not added. We asked for supplemental briefing on whether these fines were unauthorized under sections 11372.5 and 11372.7 because of the court's failure to impose the mandatory penalty assessments on those fines. Respondent contends they were unauthorized. Counsel for Little has submitted on that issue.
Section 11372.5 states that every person who is convicted of section 11378 and other drug offenses "shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense." (§ 11372.5, subd. (a), italics only.) Section 11372.7 requires persons convicted of drug offenses to "pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense." (§ 11372.7, subd. (a).) This latter fee is subject to the defendant's ability to pay. (Id. subd. (b).) "If the court determines that the person has the ability to pay, the court may set the amount to be paid and order the person to pay that sum to the county in a manner that the court believes is reasonable and compatible with the person's financial ability. . . [T]he court shall take into account the amount of any fine imposed upon that person . . . ." (Ibid.)
The Supreme Court has held that both of these fees are part of the punishment provided for in the underlying crime. (People v. Ruiz (2018) 4 Cal.5th 1100, 1122.) Additional penalty assessments are mandatory for punitive fines. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1155 (Talibdeen).) Penalty assessments apply to any " 'fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses' " and increase such fines, penalties, or forfeitures by a specified amount. (See People v. Watts (2016) 2 Cal.App.5th 223, 229 [list of applicable penalty assessments], overruled on other grounds in Ruiz, at p. 1113 [disapproving Watts's finding that crime lab fee was not punitive].)
Penalty assessments more than quadruple the base fine by adding assessments that total 310 percent of the base fine. (See Pen. Code, §§ 1464, subd. (a)(1) [$10 for every $10 or part of $10]; 1465.7, subd. (a) [20 percent of base fine]; Gov. Code, §§ 70372, subd. (a)(1) [$5 for every $10 or part of $10], 76000, subd. (a)(1) [$7 for every $10 or part of $10], 76000.5, subd. (a)(1) [$2 for every $10 or part of $10], 76104.6, subd. (a)(1) [$1 for every $10 or part of $10] & 76104.7, subd. (a) [$4 for every $10 or part of $10].) A fine of $100 grows to $410 if penalty assessments are added.
The trial court was required to impose a criminal laboratory analysis fee of $50, plus penalty assessments that increased the fee to $205. (§ 11372.5, subd. (a).) The imposed fine of $50 was not authorized. The court had greater discretion in imposing the drug program fee up to a maximum of $150, and had to consider Little's ability to pay in setting the amount. We presume the court knew and followed the law. (People v. Jones (2017) 3 Cal.5th 583, 616.) The court imposed a total amount of $200 in consideration of Little's reduced earning ability. That exact amount was not authorized, however, because most of the fines are applied to each $10 or part thereof, giving the court less leeway in setting the fine. The court must impose a drug program fine but it has the discretion to choose an amount below the maximum of $150. It must also add the penalty assessments.
The court could have imposed a drug program fine of $50, plus additional penalty assessments of $155, for a total of $205. --------
Neither fine complied with the laws requiring penalty assessments to be added to these fines. (Talibdeen, supra, 27 Cal.4th at p. 1155.)
4. Senate Bill No. 180, Which Removed Sentencing Enhancements Based Upon Most Prior Felony Drug Offenses, Applies Retroactively to Plea Bargains
We asked the parties to file supplemental briefs on the applicability of recent amendments to the prior drug conviction enhancement, section 11370.2. Little asserts that the amendment is retroactive and that the three-year enhancement for his prior drug conviction must be stricken because it is no longer authorized. The People agree. We accept the concession.
Former section 11370.2 provided for three-year sentence enhancements for prior felony convictions of several drug offenses. Senate Bill No. 180, effective January 1, 2018, amended that section to provide that the three-year sentence enhancement applies only when the prior offense was a violation of section 11380, which criminalizes the use of a minor to commit a drug offense. (§ 11370.2, subds. (a), (c).)
The sentencing enhancements based on prior violations of other drug statutes are no longer authorized. (See Wright, supra, 31 Cal.App.5th at p. 752; Millan, supra, 20 Cal.App.5th at p. 454.) Legislative changes that ameliorate or lessen punishment are retroactive to cases that are not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 745; Wright, at pp. 752-753; Millan, at pp. 455-456.) When a punishment is no longer authorized by law, the punishment must be stricken even though the defendant stipulated to the sentence as part of a plea bargain. (Wright, at p. 756.)
DISPOSITION
We vacate the portions of Little's sentence that are unauthorized, which are the enhancement under former section 11370.2, subdivision (c), and the fines under sections 11372.5 and 11372.7. We remand this case to the trial court with directions to reimpose the fines under those two sections with penalty assessments, to amend the abstract of judgment to reflect these changes and to forward a corrected abstract of judgment to the San Diego County Sheriff. We affirm the judgment in other respects.
BENKE, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.