Filed 3/22/16 P. v. Kilpatrick CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SEAN-PAUL KILPATRICK,

Defendant and Appellant.

 H042054

 (Monterey County

 Super. Ct. Nos. SS102530A,

 SS092383A)

Defendant Sean-Paul Kilpatrick pleaded no contest to a count of possession of

hydrocodone for sale (Health & Saf. Code, § 11351) and possession of a controlled 

substance for sale (id., § 11378) in two consolidated cases. He was sentenced to a term 

of six years in county jail. On appeal, defendant argues that his trial counsel rendered 

ineffective assistance when he failed to call a witness to testify during the hearing on his

motion to suppress. He also claims that the trial court erroneously imposed penalty 

assessments on his criminal laboratory analysis fee and drug program fee. We reject 

defendant’s arguments and affirm the judgment.

BACKGROUND

Case No. SS102530A

On January 7, 2011, the Monterey County District Attorney’s Office filed an 

information charging defendant with a count of possession of a controlled substance for 

sale (Health & Saf. Code, § 11378), a count of possession of marijuana/hashish for sale 

(id., § 11359), a count of transporting a controlled substance (id., § 11379, subd. (a)), and 
2

resisting, obstructing, or delaying a police officer (Pen. Code, § 148, subd. (a)(1)).

1

It 

was also alleged that defendant had served a prior prison term after he committed a 

felony while released on bail. (§§ 667.5, subd. (b), 12022.1.) 

Case No. SS092383A

The following month, defendant was charged by information in a separate case 

with a count of possession of hydrocodone for sale (Health & Saf. Code, § 11351), 

possession of hydrocodone (id., § 11350, subd. (a)), and possession of 28.5 grams or less 

of marijuana (id., § 11357, subd. (b)). It was further alleged that he had served two prior 

prison terms. 

Facts Pertaining to Case No. SS102530A2

On November 8, 2010, a campus supervisor at Pacific Grove High School found a 

jar of marijuana on campus and went to alert school administration. Another campus 

supervisor stayed close to where the jar was found and saw two men approach the area. 

The administration had already contacted the police.

The responding officer recognized defendant from a flier that said that he was on 

parole, was involved in narcotics sales, and was possibly armed. The officer called for 

backup, and both men were eventually handcuffed and detained. Defendant was not 

compliant and was writhing on the floor during the process. At some point, officers 

noticed that defendant had duct tape around his waist. Concerned that the duct tape was 

attached to a weapon, the officers pulled on the duct tape and found that it was securing a 

bag filled with controlled substances.

 

1 Unspecified statutory references are to the Penal Code.

2

The facts of case No. SS092383A are not relevant to the issues raised on 

defendant’s appeal. Therefore, we only provide a brief recitation of the facts pertinent in 

case No. SS102530A.
3

Motion to Suppress

On May 16, 2013, the court held a hearing on defendant’s motion to suppress 

evidence (§ 1538.5) in case No. SS102530A. Defendant argued that the drugs that were 

found in his possession, his statements to the arresting officers, and all observations made 

by the officers during their contact with him at the high school should be suppressed 

because they were the product of an illegal search. After hearing testimony from the two 

campus supervisors who found the marijuana, the responding officer, and defendant 

himself, the court denied the motion to suppress. 

Subsequently, case Nos. SS102530A and SS092383A were consolidated.

Plea and Sentencing

On October 30, 2014, defendant entered a plea of nolo contendere in case 

No. SS092383A to possession of hydrocodone for sale and admitted he had served two 

prior prison terms. He also entered a plea of nolo contendere in case No. SS102530A to

possession of a controlled substance for sale. When he entered his plea, defendant 

waived his right to appeal, except for claims of ineffective assistance of counsel.

On January 6, 2015, the trial court sentenced defendant to the agreed-upon term of 

six years in county jail for case No. SS092383A and two years in county jail for case 

No. SS102530A. The two terms were to be served concurrently. The trial court also 

imposed various fines and fees, including a criminal laboratory analysis fee (Health &

Saf. Code, § 11372.5) and a drug program fee (id., § 11372.7). The trial court applied 

penalty assessments (§ 1464, Gov. Code, § 76000) to both of these fees.

Defendant filed a timely notice of appeal. He also requested a certificate of 

probable cause, which the trial court granted. 
4

DISCUSSION

1. Ineffective Assistance of Counsel

On appeal, defendant argues that his trial counsel rendered ineffective assistance 

when he failed to call a police officer to testify during the suppression hearing. 

Defendant argues that the police officer had previously provided testimony at the 

preliminary hearing that directly contradicted testimony provided by another officer 

during the suppression hearing.3

Before we proceed to the substantive merits of his claim, we briefly review the 

preliminary hearing testimony and the testimonies provided during the hearing on the 

motion to suppress.

a. Preliminary Hearing Testimony

Officer DiMarco testified at the preliminary hearing. He was dispatched to Pacific 

Grove High School after receiving reports of a trespasser on school grounds. When he 

arrived, he saw four officers at the scene detaining two men next to the high school’s 

football field. 

Officer DiMarco stated that defendant was not being compliant. He was being 

handcuffed but was swaying back and forth on the ground while lying on his stomach. 

Defendant had his legs crossed and would not allow the officers to search him. DiMarco 

stated that defendant had his legs tight with his ankles crossed and had clenched his 

buttocks. 

Officer DiMarco said that the officers told defendant that he needed to relax 

and to allow a search. Defendant responded that the officers could not search him. 

 

3 Originally, the People argued that defendant waived his right to appeal as part of 

his plea, which barred his claim of ineffective assistance of counsel. Prior to oral 

argument, the People withdrew their waiver argument (Argument I.C. in their 

respondent’s brief).
5

DiMarco stated, “At that point, Sergeant Figueora instructed me that he believed that 

[defendant] might have a weapon. And at that time, he forcibly spread [defendant’s] legs 

and said to search him.” 

Officer DiMarco stated that when the officers lifted up defendant’s shirt, they 

noticed a “good amount of duct tape around his waist, going down beneath his pants.” 

DiMarco explained that this was concerning, because defendant may have been using the 

duct tape to conceal a weapon. At that point, DiMarco tried to remove the duct tape. 

DiMarco said that he pulled on the tape and the officers lowered defendant’s sweat pants 

so they could ascertain if the tape was securing a weapon. DiMarco asserted that he and 

his fellow officers then saw that there was a “white crystallized substance between 

[defendant’s] gluteal folds,” which he believed was crystal methamphetamine. 

Later, Officer DiMarco was asked whether someone pulled off defendant’s pants 

and underwear at the school. DiMarco responded affirmatively and explained that 

Sergeant Figueroa “lowered [defendant’s] pants because we wanted to—he instructed me 

that he believed that [defendant] might have a weapon on him and to search that area.” 

b. Hearing on the Motion to Suppress

i. Sergeant Jose Figueroa’s Testimony

Sergeant Jose Figueroa testified at the suppression hearing. Figueroa was the first 

officer at the scene. He stated that when he initially made contact with defendant and the 

other man at the campus, they walked away from him. He eventually ordered both of 

them to get on the ground and called for extra units so he could detain them. Figueroa 

said that he recognized defendant and knew that he was an active parolee. He had 

recently seen a flier with defendant’s picture on it, describing him as being on parole, 

being involved in narcotics transactions, and possibly being armed.

Four officers arrived at the scene, including Officer DiMarco. Sergeant Figueroa 

stated that two officers attempted to put handcuffs on defendant, but defendant was not 
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being compliant with the arrest order. Figueroa said that defendant was writhing on the 

ground, crossing his legs, and preventing the officers from getting a hold of his wrists. 

Sergeant Figueroa told Officer DiMarco to grab defendant’s legs and to try to 

spread them apart so they could get control of defendant’s feet. Figueroa said that 

defendant’s sweatpants were loose and had moved down during the struggle with the 

officers, revealing gray duct tape around his waist. Figueroa testified that he alerted the 

other officers that he saw duct tape and to thoroughly search defendant for weapons. 

Sergeant Figueroa asserted that Officer DiMarco eventually forcefully spread 

defendant’s legs apart, grabbed the duct tape, and pulled on it. The duct tape was 

securing a plastic bag filled with controlled substances. Figueroa stated that none of the 

officers took defendant’s clothes off.

ii. Defendant’s Testimony

Defendant testified at the suppression hearing. He stated that Sergeant Figueroa 

told him he was under arrest for trespassing and that he complied with the officers’ 

requests to get down on the floor. 

Defendant said that after Sergeant Figueroa called for backup, one of the arriving 

officers immediately jumped onto his back while he was lying on his stomach. 

Defendant said that this officer, Commander Nyuent, immediately searched his front 

pockets, rolled him onto his back, and ran his palms all over the inside of his clothing. 

Defendant testified that Nyuent took money out of his pocket and handed it to Figueroa.

Defendant attested that Commander Nyuent continued to search him. Defendant 

stated that Nyuent rolled him onto his stomach, pulled his sweatpants out so he could 

look down, and reached down into his pants. 

Defendant asserted that he was searched a second time, when Officer DiMarco 

arrived. He stated that the second time, someone “spread [his] buttocks apart” and pulled 

the bag out that was secured by duct tape. 
7

Defendant said he did not have anything that looked like a weapon on him at the 

time of the search. He also explained that he had been injured, and the duct tape was 

there to prevent any bleeding.

iii. The Trial Court’s Ruling

After hearing testimony, the trial court denied defendant’s motion to suppress, 

finding that there was probable cause to detain defendant and the entire search was 

reasonable. The court noted that it found Sergeant Figueroa’s testimony describing the 

events to be more credible than defendant’s testimony. It further found that defendant 

was not subjected to a “strip search of any kind.”

c. Overview of Ineffective Assistance of Counsel Claims

Defendant argues that his trial counsel rendered ineffective assistance when he 

failed to call Officer DiMarco to testify during the hearing on the motion to suppress. 

To succeed on a claim of ineffective assistance of counsel, defendant must show 

both that counsel failed to act in a manner to be expected of a reasonably competent 

attorney acting as a diligent advocate and that defendant was prejudiced thereby. (People 

v. Ledesma (1987) 43 Cal.3d 171, 216-217; Strickland v. Washington (1984) 466 U.S. 

668, 684 [discussing federal constitutional rights]; People v. Pope (1979) 23 Cal.3d 412, 

422 [discussing both state and federal constitutional rights].)

“ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining 

a claim of ineffective assistance of counsel [citation], and there is a “strong presumption 

that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” ’ [Citations.] ‘[W]e accord great deference to counsel’s tactical decisions’ 

[citation], and we have explained that ‘courts should not second-guess reasonable, if 

difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are 

generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the 

context of the available facts.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
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“In the usual case, where counsel’s trial tactics or strategic reasons for challenged 

decisions do not appear on the record, we will not find ineffective assistance of counsel 

on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” 

(People v. Weaver, supra, 26 Cal.4th at p. 926.)

We “ ‘need not determine whether counsel’s performance was deficient before 

examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of 

lack of sufficient prejudice, . . . that course should be followed.’ ” (In re Jackson (1992) 

3 Cal.4th 578, 604, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.) A 

defendant establishes prejudice by demonstrating that without the deficient performance 

there is a reasonable probability the result would have been more favorable. In other 

words, even if counsel’s actions fall below the threshold of reasonableness, a defendant 

must still show that counsel’s actions were prejudicial. (People v. Ledesma, supra, 43 

Cal.3d at p. 218.) A defendant must prove prejudice that is a “ ‘demonstrable reality,’ not 

simply speculation.” (People v. Williams (1988) 44 Cal.3d 883, 937; People v. Fairbank

(1997) 16 Cal.4th 1223, 1241.)

d. Defendant does not Establish Defense Counsel’s Performance was 

Deficient

Defendant claims that defense counsel’s failure to call Officer DiMarco to testify 

during the suppression hearing was patently unreasonable, because his testimony directly 

contradicted Sergeant Figueroa’s testimony. However, we do not believe defendant has 

established that his defense counsel acted deficiently. Accordingly, we reject his claim of 

ineffective assistance of counsel.

Based on our review of the record, we disagree with defendant’s claim that there 

was a discrepancy between Sergeant Figueroa’s testimony and Officer DiMarco’s 

testimony regarding how the search was initiated. During the preliminary hearing, 
9

DiMarco said that officers lowered defendant’s pants and underpants, because Sergeant 

Figueroa believed that defendant may be armed. DiMarco asserted that officers

subsequently lifted defendant’s shirt, which is when they saw the duct tape around 

defendant’s waist.

In contrast, Sergeant Figueroa testified that defendant’s pants, which were loose, 

had lowered during the struggle with officers. Accordingly, Figueroa said that he was 

able to see the duct tape around defendant’s waist, which was when he alerted the other 

officers that defendant may be armed. 

On this point, the two testimonies are not entirely irreconcilable. It is possible that 

Sergeant Figueroa initially saw the duct tape while defendant was writhing then alerted 

Officer DiMarco that defendant may have a weapon. At that point, Officer DiMarco may 

have started his search by lifting defendant’s shirt, thus exposing the duct tape to himself 

and to the other officers. 

However, we do agree with defendant that there is an obvious contradiction 

between Officer DiMarco’s statements during the preliminary hearing and the statements 

made by Sergeant Figueroa during the hearing on the motion to suppress. Figueroa 

unequivocally stated, in several portions of the hearing, that none of the officers present 

at the scene took off defendant’s clothes. Rather, Figueroa stated that defendant’s 

writhing had caused his pants to ride down, exposing his buttocks. DiMarco, on the other 

hand, answered affirmatively when asked during the preliminary hearing if any of the 

officers had taken off defendant’s sweat pants and underwear when he was at the school. 

DiMarco explained that the officers had lowered defendant’s sweat pants, because they 

wanted to see if the duct tape around defendant’s waist was secured to a weapon.

Nonetheless, whether or not to call certain witnesses “is . . . a matter of trial 

tactics, unless the decision results from unreasonable failure to investigate.” (People v.

Bolin (1998) 18 Cal.4th 297, 334.) “ ‘It is all too tempting for a defendant to second
10

guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a 

court, examining counsel’s defense after it has proved unsuccessful, to conclude that a 

particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of

attorney performance requires that every effort be made to eliminate the distorting effects 

of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 

evaluate the conduct from counsel’s perspective at the time. Because of the difficulties 

inherent in making the evaluation, a court must indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance; that 

is, the defendant must overcome the presumption that, under the circumstances, the 

challenged action “might be considered sound trial strategy.” ’ ” (In re Jones (1996) 13 

Cal.4th 552, 561.)

In this case, there is no explanation in the record for defense counsel’s failure to 

call Officer DiMarco to testify during the suppression hearing. Accordingly, we will not 

find counsel rendered ineffective assistance “unless there could be no conceivable reason 

for counsel’s acts or omissions.” (People v. Weaver, supra, 26 Cal.4th at p. 926.)

Defendant argues that there can be no conceivable tactical reason for defense 

counsel’s omissions, because he claims that Officer DiMarco’s testimony during the 

preliminary hearing only lends support to his argument that he was subjected to an 

unreasonable strip search. 

We agree that Officer DiMarco’s testimony that defendant’s underwear and pants

were removed had the potential to benefit defendant during the hearing on the motion to 

suppress. However, defense counsel may have had a tactical reason for failing to call 

DiMarco to testify. Much of DiMarco’s testimony from the preliminary hearing 

corroborated Figueroa’s testimony at the suppression hearing. Like Figueroa, DiMarco 

also asserted that defendant was not compliant with the officers and was struggling with 

them when they were trying to detain them. DiMarco further confirmed that Figueroa 
11

told him he believed that defendant may have a weapon, and DiMarco asserted that he 

followed the duct tape secured around defendant’s waist until he found the bag of drugs 

secured at the end. DiMarco also testified that seeing the duct tape around defendant’s 

waist was concerning because it could be securing a weapon, lending support to the 

existence of probable cause for the search.

Furthermore, DiMarco’s preliminary hearing testimony was far from clear and 

contained some discrepancies. DiMarco first testified that other officers lowered 

defendant’s pants while he was pulling on the duct tape in order to facilitate the search. 

Later, he stated that Sergeant Figueroa himself lowered defendant’s pants and underwear 

because Figueroa suspected he had a weapon. 

DiMarco also did not corroborate defendant’s version of the events, as defendant 

testified he was subjected to an invasive search of his body. Defendant asserted that the 

officers “spread [his] butt cheeks and just reached in and just started [to] pull the bag 

out,” further describing the search as violent. DiMarco merely testified that he pulled on 

the duct tape; he did not state that the search became invasive. Calling DiMarco to testify 

could have undermined defendant’s credibility. It is conceivable that trial counsel may 

have believed that having both officers testify would only serve to discredit defendant’s 

version of the events.

Therefore, even taking into consideration the discrepancy between the 

testimonies—the contradictory statements regarding whether defendant’s pants and 

underwear were removed—we cannot conclude based on this record that there is no 

conceivable tactical reason for defense counsel’s alleged omissions. Claims of 

ineffective assistance of counsel are generally rejected on direct appeal when “ ‘ “the 

record on appeal sheds no light on why counsel acted or failed to act in the manner 

challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, 

or unless there simply could be no satisfactory explanation.” ’ ” (People v. Mendoza 
12

Tello (1997) 15 Cal.4th 264, 266.) “A claim of ineffective assistance in such a case is 

more appropriately decided in a habeas corpus proceeding.” (Id. at pp. 266-267.)

Accordingly, we conclude that defendant’s claim of ineffective assistance of 

counsel fails, because he has not shown that his counsel acted outside the wide range of 

professional competence. Based on our conclusion, we need not address his claim that he 

was prejudiced by his counsel’s alleged omissions.

2. Penalty Assessments on the Criminal Laboratory Analysis Fee and 

Drug Program Fee

Next, defendant challenges the imposition of penalty assessments on the criminal 

laboratory analysis fee imposed under Health and Safety Code section 11372.5, 

subdivision (a), and the drug program fee imposed under Health and Safety Code 

section 11372.7, subdivision (a).4

Section 1464 and Government Code section 76000 mandate penalties or 

assessments upon every fine, penalty, or forfeiture imposed by the trial court in a criminal 

case. Defendant argues that the drug program fee and criminal laboratory analysis fee are 

fees, not fines or penalties, and therefore should not be subject to penalties.

As defendant notes, there is a split of authority regarding whether penalty 

assessments can validly be imposed on such fees. In People v. Sierra (1995) 37 

Cal.App.4th 1690 (Sierra), the Fifth Appellate District concluded that the drug program 

fee imposed under Health and Safety Code section 11372.7 was penal in nature and 

therefore subject to penalty assessments. (Sierra, supra, at p. 1695.) Sierra noted that 

 

4 Defendant and the People agree that these issues are cognizable on appeal 

notwithstanding defendant’s waiver of appellate rights when he entered his plea. A 

defendant’s waiver of his right to appeal does not prevent him from asserting errors not 

contemplated by the waiver. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1663.) The 

fees and penalty assessments were imposed after defendant entered his waiver. 

Accordingly, he did not waive his right to contest these issues on appeal.
13

Health and Safety Code section 11372.7, subdivision (a), states: “Except as otherwise 

provided in subdivision (b) or (e), each person who is convicted of a violation of this 

chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars 

($150) for each separate offense. The court shall increase the total fine, if necessary, to 

include this increment, which shall be in addition to any other penalty prescribed by law.” 

Sierra surmised that Health and Safety Code section 11372.7 described the drug program 

fee as an increase to the “total fine,” and a fine that was in addition “to any other 

penalty,” thereby describing itself as both a “fine and/or a penalty.” (Sierra, supra, at 

p. 1696.) 

The statute imposing the drug program fee requirement, Health and Safety Code 

section 11372.7, contains similar language, describing the fee as an “increment” of “the 

total fine” which is “in addition to any other penalty prescribed by law.” (Health & Saf. 

Code, § 11372.7, subd. (a).) In People v. Martinez (1998) 65 Cal.App.4th 1511, the 

Second Appellate District extended the reasoning in Sierra to conclude that a criminal 

laboratory analysis fee imposed under Health and Safety Code section 11372.5 was 

subject to mandatory penalty assessments. (People v. Martinez, supra, at p. 1522.)

More recently, the Appellate Division of the Nevada County Superior Court 

decided People v. Moore (2015) 236 Cal.App.4th Supp. 10, which disagreed with the 

rationale set forth in Sierra and concluded that penalty assessments are not properly 

imposed on the criminal laboratory analysis fee or the drug program fee. Moore

interpreted People v. Vega (2005) 130 Cal.App.4th 183 (Vega), a case from the Second 

Appellate District, as disagreeing with the Sierra court and concluding that the lab fees 

and drug program fees were meant to offset administrative costs and were not penal in 

nature. (Id. at p. 195.) 

We disagree with the reasoning set forth in Moore. First, Vega did not address the 

exact issue presented here: whether penalty assessments can be properly imposed on a 
14

criminal laboratory analysis fee or a drug program fee. Rather, Vega discussed whether it 

was proper to impose the fee in the first instance on the defendant in that case. The issue 

in Vega was whether a criminal laboratory analysis fee plus penalty assessments was 

properly imposed on a defendant who was convicted of conspiracy to transport or possess 

cocaine. (Vega, supra, 130 Cal.App.4th at pp. 193-194.) Section 182, which defines and 

describes the punishment for crimes of conspiracy, states that those convicted “shall be 

punished in the same manner and to the same extent as is provided for the punishment of 

that felony.” (§ 182, subd. (a).) Whether the criminal laboratory analysis fee could be 

imposed depended on whether the fee was properly considered a punishment. Vega

concluded that the fee was not a punishment, since it interpreted that the fee was imposed 

to defray administrative costs, not to deter or make retribution. (Vega, supra, at p. 195.) 

Accordingly, Vega held that the criminal laboratory analysis fee was improperly imposed 

on the defendant. (Ibid.)

Not all courts have agreed with Vega. In People v. Sharret (2011) 191 

Cal.App.4th 859, another division of the Second Appellate Court, did not analyze Vega in 

its analysis and concluded that “[t]he section 11372.5 criminal laboratory analysis fee 

constitutes punishment and must be stayed under section 654.” (Id. at p. 869.)

Additionally, in People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen), the 

California Supreme Court considered the related issue of whether a trial court has 

discretion to waive penalties under section 1464. (Talibdeen, supra, at p. 1153.) In 

Talibdeen, the trial court “imposed, among other things, a laboratory analysis fee of $50 

pursuant to Health and Safety Code section 11372.5, subdivision (a). Although 

subdivision (a) of . . . section 1464 and subdivision (a) of Government Code 

section 76000 called for the imposition of state and county penalties based on such a fee, 

the trial court did not levy these penalties, and the People did not object at sentencing.” 

(Ibid., fn. omitted.) The appellate court imposed the penalties after concluding they were 
15

mandatory and not discretionary sentencing choices. Our Supreme Court affirmed the 

appellate court’s judgment, holding that the trial court had no discretion to waive 

penalties in the matter. (Id. at p. 1157.) 

We believe the Supreme Court’s discussion in Talibdeen shows approval for the 

proposition that penalty assessments should apply to criminal laboratory analysis fees 

imposed under Health and Safety Code section 11372.5. We also find the reasoning in 

Sierra and Martinez to be persuasive and conclude that penalty assessments were also 

applicable to the drug program fee imposed under Health and Safety Code 

section 11372.7.5

DISPOSITION

The judgment is affirmed.

 

5

The People argue that this court previously held that penalty assessments are 

properly imposed on criminal laboratory analysis fees and drug program fees in People v.

Hamed (2013) 221 Cal.App.4th 928. Hamed listed criminal laboratory analysis fees and 

drug program fees as examples of fines where courts have imposed penalty assessments. 

(Id. at pp. 935-936.) Hamed, however, did not discuss the issue raised here: whether 

penalty assessments were properly imposed on the drug program fee and the criminal 

laboratory analysis fee.
Premo, J.

WE CONCUR:

Rushing, P.J.

Márquez, J.

People v. Kilpatrick

H042054