1 Filed 2/26/14 P. v. Boyer CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. RICHARD KEITH BOYER, Defendant and Appellant. E058143 (Super.Ct.No. FVA1201148) OPINION

APPEAL from the Superior Court of Sa n 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, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, A. Natasha Cortina, and Kristen Kinnaird Chenelia, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 A jury convicted defendant Richard Keith Boyer of felony possession of a controlled substance (count 1; Hea lth & Saf. Code, § 11377, subd. (a)). 1 The court granted defendant three year s’ probation with various te rms and conditions including a requirement that he pay a $246 criminal labor atory 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 Departme nt 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 lig hts in order to conduct a traffic stop to investigate whether the driver was intoxica ted. The driver, defendant, immediately leaned over the right hand, passenger side of the truck’s cab for th e 30 to 45 seconds it took him to pull over and stop. Out of concern defendant may have b een reaching for a gun, Delgado asked defendant to step out of the vehicle; Delg ado 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 turn ed the investigation over to Rice. When Rice arrived, he saw defendant sitting on the curb w ith Delgado next to him. Rice spoke with Delgado. Rice then obtain ed permission from defendant to search the

1 All further statutory references are to the Health and Safety Code unless otherwise indicated.3 vehicle. Based on his conversa tion with Delgado, Rice opened the door of the truck to search for a firearm. Instead, Rice saw a sma ll, 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 part ies stipulated the baggie contained 0.24 grams of methamphetamine, a useable amount. Rice then searched defendant. In defend ant’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 whic h I also believed to be methamphetamine residue.” Hollowed out pens are commonly us ed to ingest methamphetamine by inhaling or snorting. Rice opined the pen “was a na rcotic 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 se en it before Rice discovered it. Defendant leaned over the seat while Delgado was pu lling him over in order to retrieve a Pepsi which had rolled off the seat. Defendant also reached over to his gl ove box to obtain his vehicle registration. The probation report prepared in adva nce of defendant’s sentencing recommended probation term 22 require defendant pay a labor atory analysis fee in the amount of $50 pursuant to section 11372.5, pl us a penalty assessment of $150, and a processing fee of4 $35 pursuant to Penal Code section 1205, subdivision (d ), for a total of $235. 2 At the sentencing hearing, defense co unsel objected to term 20; the court struck term 20. Defense counsel then submitte d. Defendant accep ted probation on the terms outlined in the probation report. The sentencing minute order reflects th at term 19 of de fendant’s probation conditions requires that he pay a criminal lab analysis fee in the amount of $246. Someone circled the $235 amount in the proba tion 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 recommende d amount was changed from $235 to $246.
DISCUSSION Defendant contends the requi rement defendant pay a $246 criminal analysis fee as a condition of his probation is unauthorized and must be modifi ed to reflect payment as a separate order and not as a c ondition of his probation. The People maintain payment of the fee is appropriate as a condition of defe ndant’s probation because it was intended to be punitive. We agree with the People. “A trial court has broad, but not unlim ited, discretion in setting the terms and conditions of probation. [Citati ons.] On appeal, we review the trial court’s exercise of

2 Penal Code section 1205 does not spec ify the amount of either a penalty assessment or a processing fee. Subdivision (d) provides “Not hing 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 coll ecting agency for processing and collection.” Subdivision (a) reflects, “The judgment shall specify the term of imprisonment for nonpayment of the fine, whic h 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.”5 that discretion under the abuse of discretion standard. ‘A condition of probation will not be held invalid unless it “(1) has no relations hip 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 reasonabl y related to future crimina lity . . . .” [Citation.]’ [Citations.] All three factors must be present for a condition of proba tion to be invalid. [Citation.] Furthermore, ‘[i]nsofar as a pr obation condition serves the statutory purpose of “reformation and rehabilitation of the prob ationer,” [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 “rela tionship to the crime of which the offender was convicted.”’ [Citation.] A trial c ourt 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 (F ourth 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) fo r each separate offense.” Subdivision (b) prescribes that the “county treasurer shall mainta in a criminalistics laboratories fund. The sum of fifty dollars ($50) shall be deposite d into the fund for every” enumerated crime “in addition to fine s, forfeitures, and other moneys which are transmitted by the courts to the county treasure r 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.6 Moneys in the criminalistics labor atories fund shall, except as otherwise provided in this section, be used exclusively to fund (1) costs incurred by crimin alistics laboratories providing microscopic and chem ical analyses for controlle d substances, in connection with criminal investigations conducted with in both the incorporated or unincorporated portions of the county, (2) th e 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 scientis ts 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 subs tance seized by Office r Joshua Rice on May 18, 2012[,] was analyzed by James Vaughn, a qualified forensic criminalist for the San Bernardino Sheriff’s Department, under me thods currently accepted in the scientific community, and was found [to] be 0.24 gr ams of methamphetamine. [¶] That 0.24 grams of methamphetamine is a useable quantity .” Therefore, imposition of the fee as a condition of defendant’s proba tion 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 nonp unitive 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 and7 those that may not is that probation ‘should be oriented towards rehabilitation of the defendant and not toward the financing of the m achinery of criminal ju stice.’ [Citations.] An equally compelling reason fo r 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 pu rpose of [a] fee squarely places it among those fines and fees that are collateral to th e 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 Peopl e apparently agree with Pacheco ’s statement of the law, but contend the criminal laborator y fee is punitive and, therefor e, was appropriately imposed as a condition of defendant’s probati on. 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 co nditions of probation. In People v. Hall (2002) 103 Cal.App.4th 889, the c ourt held that the nonpunitive, nonmandatory fees of the costs of probation supervision and the prep aration of probation reports could not be made conditions of pr obation 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 cond ition 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 cour t held a defendant could not be held in violation of probation for failure to pay defense attorney fees because the order8 was nonpunitive and required a court dete rmination 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 base d 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 an alysis fees as a c ondition 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 manda torily 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 cond ition 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 mandato ry 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 discre tionary 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 dr ug program fee is punitive]; Martinez, at p. 1522.)9 Fifth, section 11327.5 its elf only permits im position 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 allocat ion and distribution of fines and penalties assessed in criminal cases pursuant to sections 1 1372.5 and 11502. Thus, when construed in the context of the statutory scheme as a whole, section 11 327.5 fees are mandatory, punitive fines, not discretionary fees. Sixth, although the People note no publis hed case squarely addresses the issue of whether a section 11372.5 fee may be imposed as a condition of prob ation, they observe there is direct, extensively exposited author ity for the proposition th at 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 app lication in a civil context. ( Id . at p. 870.) “[T]he fee is assessed in proportion to a de fendant’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 th e defendant’s ability to pay. ( Ibid .) The fees are used for10 law enforcement purposes. ( Ibid .) “[S]ection 11372.5 contai ns no language suggesting the Legislature intended to ex empt the criminal laboratory an alysis fee from section 654. [Citations.]” ( Id . at p. 870.) There was no evid ence 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 langu age of Health and Safety Code section 11372.5, subdivision (a) the Legislature in tended the $50 laboratory ‘fee’ to be an
additional punishment for conviction of one of th e enumerated felonies.” ( Id . at p. 194, italics added.) This is because the statute itse lf refers to the “fee” as a “fine” which may be imposed in increasing increments with resp ect to the number of offenses committed in addition to any other “penalty ” prescribed by law. ( Id . at p. 194; § 1 1372.5, subd. (a).) Indeed, in Vega, at page 194, the court found suppor t for such an inte rpretation in the language of People v. Talibdeen, supra, 27 Cal.4th 1151, in which the California Supreme Court referred to imposition of a s ection 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 th e laboratory analysis fee was a punishment. Rather, the court and the parties in Talibdeen proceeded under the assumption the fee was11 a punishment and addressed th e question whether the trial c ourt 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 th e Legislature uses both terms in reference to the charge in the same statute. ( Ibid .) Contrariwise, the court noted “F ines 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 o ffset the administrative cost of testing the purported drugs the defenda nt 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 descrip tion 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 ‘crimina listics laboratories fund’ maintained in each county by the county treasurer.” ( Ibid .) We find Sharett the more persuasive of the tw o conflicting decisions. Although, section 11327.5 refers to the charge as a “fee,” it both internally, and through consideration of the related stat utes, 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 “incre ment” of the $246 penalty imposed in this
case. Numerous courts have foun d 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;12 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 with in 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.