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Name: People v. Sharret
Case #: B223752
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 01/10/2011

Because a criminal laboratory fee is punishment, if the penalty for the offense to which it attaches is stayed pursuant to Penal Code section 654, the fee must also be stayed. Appellant was convicted of possession for sale (count one), and sale of heroin (count two). The court imposed the sentence on count two, and imposed but stayed the sentence on count one pursuant to Penal Code section 654. On a “Wende” review, the appellate court found that it was error not to impose the mandatory laboratory analysis fee pursuant to Health and Safety Code section 11372.5 on count one, and, as with the prison term, that the fee should then be stayed under section 654. Penal Code section 654 prohibits the use of a conviction for any punitive purpose if the sentence on that conviction is stayed. For the following reasons the laboratory analysis fee is punitive in nature and must be stayed: (1) the Legislature refers to the fee as an increment increasing the total fine and fines are generally considered punishment; (2) the fee is imposed only upon conviction of a criminal offense; (3) the fee applies to each separate conviction; (4) the fee is mandatory with no ability to pay provision; (5) the funds from the fee are used for law enforcement purposes; (6) there is no language suggesting the Legislature intended the fee to be exempt from section 654; (7) there is no evidence the statute was a budget measure as with the court security fee; and (8) the amount of the fee plus its penalty assessments is significant.