Filed 5/7/15 P. v. Reuben CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066872
Plaintiff and Respondent,
v. (Super. Ct. No. SCD257600)
LEONARD DION REUBEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
R. Walsh, Judge. Affirmed as modified with directions.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala Harris, Attorney General, for Plaintiff and Respondent.
Appellant Leonard Dion Reuben pleaded guilty to sale of a controlled substance,
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in exchange for a split
sentence of one year in custody and two years of mandatory supervision. The court
dismissed allegations that Reuben suffered three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). It sentenced Reuben to the agreed-upon
terms, granted him 149 days of actual and local conduct credits and ordered him to pay
various fines and fees. Reuben appeals from the final judgment entered after that plea
under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967)
386 U.S. 738 (Anders). We offered Reuben the opportunity to file his own brief on
appeal but he has not responded.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation officer's report. In July 2014, the San
Diego Police Department conducted a "buy/bust" operation in downtown San Diego on C
Street using an undercover officer. The officer contacted Reuben and asked, "Do you
know where I can find some tweek [methamphetamine]?" Reuben asked if he was an
officer and the officer answered in the negative. Reuben then sold the officer .15 grams
of methamphetamine for $40.
The People charged Reuben with selling, furnishing or offering to sell
methamphetamine, and alleged he had suffered two prior probation denial priors within
the meaning of Penal Code section 1203, subdivision (e)(4) as well as three prior prison
terms within the meaning of Penal Code sections 667.5, subdivision (b) and 668. Reuben
initially pleaded not guilty and denied the allegations, but then withdrew his not guilty
plea and entered into a negotiated plea agreement. Under that agreement, Reuben
pleaded guilty to selling methamphetamine in exchange for a stipulated three-year
sentence of one year in local custody and two years of mandatory supervision. As part of
that plea, Reuben waived his right to appeal the stipulated sentence. The court confirmed
2 that Reuben was not promised anything in exchange for the plea, that he understood he
was giving up constitutional trial rights reflected in the plea form, and that he understood
and agreed to the plea terms. It accepted the plea, finding Reuben entered into a
knowing, intelligent and voluntary waiver of his constitutional rights. The court
dismissed the balance of the charges.
In October 2012, the court sentenced Reuben pursuant to the plea terms. It
imposed but suspended unless supervision was revoked a $900 restitution fine, and
ordered him to pay a $40 criminal conviction assessment, a $30 court operations
assessment, a $154 criminal justice administration fee, a $615 drug program fee, and a
$205 laboratory analysis fee. It awarded Reuben 75 days of actual and 74 days of Penal
Code section 4019 local conduct credits for a total of 149 days of presentence custody
credits.
Reuben timely filed a notice of appeal but did not obtain a certificate of probable
cause (Pen. Code, § 1237.5).
DISCUSSION
Appellate counsel indicates she is unable to identify any reasonably arguable
issues for appeal and has asked this court to review the record for error. (Wende, supra,
25 Cal.3d 436.) Pursuant to Anders, supra, 386 U.S. 738, counsel has identified the
following issues in order to assist the court in its search for error:
1. Did Reuben validly waive his right to appeal as part of the plea bargain?
2. Was Reuben's guilty plea constitutionally valid?
3. Did Reuben receive effective assistance of counsel?
3 We have reviewed the entire record consistent with the mandate of Wende, supra,
25 Cal.3d 436, and Anders, supra, 386 U.S. 738. We have not identified any reasonably
arguable issues for reversal on appeal. Reuben has been represented by competent
counsel on this appeal.
We note that the abstract of judgment does not reflect the mandatory drug program
(Health & Saf. Code § 11372.7) and laboratory analysis (Health & Saf. Code, § 11372.5)
fees ordered by the court during Reuben's sentencing hearing.1 (See People v. Turner
1 Because the statutes limit the drug program and laboratory analysis fees to $150 and $50 respectively, the amounts recommended by the probation officer and ordered by the court necessarily include required penalty assessments and surcharges. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Sharret (2011) 191 Cal.App.4th 859, 863-864; People v. Taylor (2004) 118 Cal.App.4th 454; People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522.) On May 1, 2015, the Nevada County Appellate Division decided People v. Moore (May 1, 2015, No. AP14-0020) ___ Cal.App.4th ___ [2015 WL 1967947], and held that penalty assessments were erroneously levied on the Health and Safety Code section 11372.5 laboratory analysis fee imposed in that case. Moore followed People v. Vega (2005) 130 Cal.App.4th 183 and characterized that case as disagreeing with People v. Sierra (1995) 37 Cal.App.4th 1690, which held those fees are subject to penalty assessments because they are penal in nature. (Moore, at *3.) Interpreting the term "total fine" within Penal Code section 1463, subdivision (l), Moore concluded that "the [L]egislature intended when it drafted [Health and Safety Code s]ections 11372.5 and 11372.7 that a trial court should first determine the 'base fine' applicable to the offense(s), then levy the proper penalty assessments, surcharges, etc., on that base fine . . . . to determine the 'total fine,' and then increase that 'total fine' sum by the increment of any fees imposed under [Health and Safety Code] sections 11362.5 and 11362.7, to arrive at the ultimate fine imposed on a convicted drug offender." (Moore, at *4.) But in People v. Talibdeen, supra, 27 Cal.4th 1151, the California Supreme Court, addressing whether a trial court has discretion to waive penalties under Penal Code section 1464, proceeded on the basis that penalty assessments applied to a Health and Safety Code section 11372.5 laboratory analysis fee did not constitute an unauthorized sentence, and that assessment of penalties on that fee was mandatory. (Talibdeen, 27 Cal.4th at p. 1153 & fn. 2.) The court in People v.
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Filed 5/7/15 P. v. Reuben CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066872
Plaintiff and Respondent,
v. (Super. Ct. No. SCD257600)
LEONARD DION REUBEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
R. Walsh, Judge. Affirmed as modified with directions.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala Harris, Attorney General, for Plaintiff and Respondent.
Appellant Leonard Dion Reuben pleaded guilty to sale of a controlled substance,
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in exchange for a split
sentence of one year in custody and two years of mandatory supervision. The court
dismissed allegations that Reuben suffered three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). It sentenced Reuben to the agreed-upon
terms, granted him 149 days of actual and local conduct credits and ordered him to pay
various fines and fees. Reuben appeals from the final judgment entered after that plea
under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967)
386 U.S. 738 (Anders). We offered Reuben the opportunity to file his own brief on
appeal but he has not responded.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation officer's report. In July 2014, the San
Diego Police Department conducted a "buy/bust" operation in downtown San Diego on C
Street using an undercover officer. The officer contacted Reuben and asked, "Do you
know where I can find some tweek [methamphetamine]?" Reuben asked if he was an
officer and the officer answered in the negative. Reuben then sold the officer .15 grams
of methamphetamine for $40.
The People charged Reuben with selling, furnishing or offering to sell
methamphetamine, and alleged he had suffered two prior probation denial priors within
the meaning of Penal Code section 1203, subdivision (e)(4) as well as three prior prison
terms within the meaning of Penal Code sections 667.5, subdivision (b) and 668. Reuben
initially pleaded not guilty and denied the allegations, but then withdrew his not guilty
plea and entered into a negotiated plea agreement. Under that agreement, Reuben
pleaded guilty to selling methamphetamine in exchange for a stipulated three-year
sentence of one year in local custody and two years of mandatory supervision. As part of
that plea, Reuben waived his right to appeal the stipulated sentence. The court confirmed
2 that Reuben was not promised anything in exchange for the plea, that he understood he
was giving up constitutional trial rights reflected in the plea form, and that he understood
and agreed to the plea terms. It accepted the plea, finding Reuben entered into a
knowing, intelligent and voluntary waiver of his constitutional rights. The court
dismissed the balance of the charges.
In October 2012, the court sentenced Reuben pursuant to the plea terms. It
imposed but suspended unless supervision was revoked a $900 restitution fine, and
ordered him to pay a $40 criminal conviction assessment, a $30 court operations
assessment, a $154 criminal justice administration fee, a $615 drug program fee, and a
$205 laboratory analysis fee. It awarded Reuben 75 days of actual and 74 days of Penal
Code section 4019 local conduct credits for a total of 149 days of presentence custody
credits.
Reuben timely filed a notice of appeal but did not obtain a certificate of probable
cause (Pen. Code, § 1237.5).
DISCUSSION
Appellate counsel indicates she is unable to identify any reasonably arguable
issues for appeal and has asked this court to review the record for error. (Wende, supra,
25 Cal.3d 436.) Pursuant to Anders, supra, 386 U.S. 738, counsel has identified the
following issues in order to assist the court in its search for error:
1. Did Reuben validly waive his right to appeal as part of the plea bargain?
2. Was Reuben's guilty plea constitutionally valid?
3. Did Reuben receive effective assistance of counsel?
3 We have reviewed the entire record consistent with the mandate of Wende, supra,
25 Cal.3d 436, and Anders, supra, 386 U.S. 738. We have not identified any reasonably
arguable issues for reversal on appeal. Reuben has been represented by competent
counsel on this appeal.
We note that the abstract of judgment does not reflect the mandatory drug program
(Health & Saf. Code § 11372.7) and laboratory analysis (Health & Saf. Code, § 11372.5)
fees ordered by the court during Reuben's sentencing hearing.1 (See People v. Turner
1 Because the statutes limit the drug program and laboratory analysis fees to $150 and $50 respectively, the amounts recommended by the probation officer and ordered by the court necessarily include required penalty assessments and surcharges. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Sharret (2011) 191 Cal.App.4th 859, 863-864; People v. Taylor (2004) 118 Cal.App.4th 454; People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522.) On May 1, 2015, the Nevada County Appellate Division decided People v. Moore (May 1, 2015, No. AP14-0020) ___ Cal.App.4th ___ [2015 WL 1967947], and held that penalty assessments were erroneously levied on the Health and Safety Code section 11372.5 laboratory analysis fee imposed in that case. Moore followed People v. Vega (2005) 130 Cal.App.4th 183 and characterized that case as disagreeing with People v. Sierra (1995) 37 Cal.App.4th 1690, which held those fees are subject to penalty assessments because they are penal in nature. (Moore, at *3.) Interpreting the term "total fine" within Penal Code section 1463, subdivision (l), Moore concluded that "the [L]egislature intended when it drafted [Health and Safety Code s]ections 11372.5 and 11372.7 that a trial court should first determine the 'base fine' applicable to the offense(s), then levy the proper penalty assessments, surcharges, etc., on that base fine . . . . to determine the 'total fine,' and then increase that 'total fine' sum by the increment of any fees imposed under [Health and Safety Code] sections 11362.5 and 11362.7, to arrive at the ultimate fine imposed on a convicted drug offender." (Moore, at *4.) But in People v. Talibdeen, supra, 27 Cal.4th 1151, the California Supreme Court, addressing whether a trial court has discretion to waive penalties under Penal Code section 1464, proceeded on the basis that penalty assessments applied to a Health and Safety Code section 11372.5 laboratory analysis fee did not constitute an unauthorized sentence, and that assessment of penalties on that fee was mandatory. (Talibdeen, 27 Cal.4th at p. 1153 & fn. 2.) The court in People v. Sharret more recently reaffirmed that the Legislature intended the Health and Safety Code section 11371.5 laboratory analysis fee to be punitive. (People v. Sharret, 191 Cal.App.4th at p. 869.) In our view, 4 (2002) 96 Cal.App.4th 1409, 1413 [laboratory analysis fee is mandatory]; People v. Clark
(1992) 7 Cal.App.4th 1041, 1050 [drug program fee and laboratory analysis fees are
mandatory].) The drug program fee statute contains an ability to pay provision (Health &
Saf. Code § 11372.7, subd. (b)2), and while the trial court did not make an express
determination of Reuben's ability to pay, the probation report indicates Reuben had
received a $65,000 inheritance from his mother and had the ability to rent a motel room
before his arrest. The court was not required to state its ability to pay finding on the
record. (People v. Martinez, supra, 65 Cal.App.4th at p. 1518 [trial court "is not required
to state its finding on the record" when determining whether a person is able to pay a
drug program fee]; see also People v. Staley (1992) 10 Cal.App.4th 782, 785 [Health and
Safety Code section 11372.7 "does not require the trial court to make an express finding
of ability to pay a drug program fee"].) Accordingly, we will presume the trial court
found Reuben had the ability to pay the drug program fee. (Clark, at p. 1050; Staley, at
Talibdeen controls, and the Moore court has misinterpreted Vega, which merely addressed whether the laboratory analysis fee applied to the conviction in the first instance, not whether penalty assessments were properly levied on that fee. (People v. Vega, 130 Cal.App.4th at p. 195.)
2 Health and Safety Code section 11372.7, subdivision (b) provides that "[t]he court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. 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. In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee." 5 pp. 785-786; Evid. Code, § 664 ["It is presumed that official duty has been regularly
performed"].) Furthermore, counsel's failure to object on the basis of Reuben's ability to
pay forfeited any challenge to imposition of the drug program fee on appeal. (Accord,
People v. McCollough (2013) 56 Cal.4th 589, 597 [ability to pay booking fee].) The
statute authorizing imposition of a laboratory analysis fee does not require an ability-to-
pay finding. (Staley, at pp. 784-785.)
We therefore modify the judgment to include a $615 drug program fee and a $205
laboratory analysis fee.
6 DISPOSITION
The judgment is modified to include a $615 drug program fee (Health & Saf.
Code, § 11372.7) and a $205 laboratory analysis fee (Health & Saf. Code, § 11372.5).
As so modified, the judgment is affirmed. The trial court is directed to amend the
abstract of judgment to reflect those fees and forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.