Criminal laboratory analysis fee (Health & Saf. Code, § 11372.5) constitutes a fine or penalty subject to additional penalty assessments under Penal Code section 1464 and Government Code section 76000. Following defendant’s conviction for being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), the trial court added penalty assessments to the criminal laboratory analysis fee imposed. The appellate division of the superior court concluded that section 11372.5 was not subject to penalty assessments, and the Court of Appeal on its own motion transferred the matter for review. Held: Reversed. Under section 11372.5, trial courts must impose a criminal laboratory analysis fee not to exceed $50 when a defendant is convicted enumerated drug offenses. The statute uses four different terms to refer to this levy: a fee, a fine, an increment, and a penalty. After considering the language of the statute as a whole, the court concluded the levy must be construed as a fine in order to avoid rendering portions of the statute mere surplusage. Specifically, the provisions that courts “increase the total fine necessary to include” the laboratory fee and that the levy “shall be in addition to any other penalty prescribed by law” would be unnecessary if the levy was not a penalty. Furthermore, in People v. Talibdeen (2002) 27 Cal.4th 1151, the California Supreme Court referred to the levy as a “penalty,” and the line of Court of Appeal authority recognizing the levy as a fine has not been abrogated by the Legislature. (See e.g., People v. Martinez (1998) 65 Cal.App.4th 1511.) Because the criminal laboratory fee constitutes a fine or penalty, it is subject to additional penalty assessments under section 1464 and section 76000. The court disagreed with People v. Vega (2005) 130 Cal.App.4th 183 and People v. Watts (2016) 2 Cal.App.5th 223 to the extent those cases held to the contrary.

Where the record is silent as to why the trial court did not impose the drug program fee (Health & Saf. Code, § 11372.7), the court erred in remanding for a determination of defendant’s ability to pay. Section 11372.7 imposes a drug program fee not to exceed $150 for each conviction of enumerated drug offenses. Unlike the criminal laboratory analysis fee that is mandatory regardless of the defendant’s ability to pay, the drug program fee may be imposed only if the trial court finds the defendant has an ability to pay the fee. Here, the record did not explain why the trial court did not impose the drug program fee. The appellate division concluded that the trial court had failed to exercise its discretion to make an ability to pay determination and remanded for determination of that issue. This was error because under section 11372.7, subdivision (b), the trial court is not required to make an express finding as to the defendant’s ability to pay, and is permitted to conclude that a defendant does not have the ability to pay without stating so on the record. Where, as here, the record is silent, the court presumes the issue was resolved in favor of not imposing the fee. (People v. Martinez (1998) 65 Cal.App.4th 1511.) Thus, the lack of the drug program fee did not render defendant’s sentence unauthorized, and the trial court erred in remanding for a determination of defendant’s ability to pay the fee. [Editor’s Note: The court declined to consider whether section 11372.7 imposes a fine or penalty but noted that section 11372.7 and section 11372.5 have similar language.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C079171.PDF