People v. McFarland CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF35080
- Trial judge
- Diane B. Altamirano
- Outcome
- modified — Affirmed as modified and remanded with directions.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Cynthia Aaron
Analysis
The trial court imposed a narcotics offender registration requirement and a $50 lab fee on the defendant based on a Harvey waiver for a dismissed drug count, despite the absence of a drug conviction. The Court of Appeal affirmed the judgment as modified, directing the trial court to strike both conditions because a Harvey waiver does not constitute a conviction required by statute for such penalties.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of narcotics offender registration requirement“Health and Safety Code section 11590 authorizing registration of narcotics offenders requires a conviction before registration can be ordered. Thus, the trial court did not have the authority to order narcotics offender registration in this case.” | de novo | error (statutory interpretation) | agree with court agree with court |
Imposition of $50 lab fee“Just as with the registration discussion, the power to impose a lab fee under Health and Safety Code section 11372.5 applies in cases where the defendant has been convicted of an appropriate drug-related offense. As we have discussed above, a Harvey waiver does not amount to a conviction. Thus, the court had no authority to impose the lab fee in this case.” | de novo | error (statutory interpretation) | agree with court agree with court |
Authorities
- relied: People v. Harvey (1979) 25 Cal.3d 754 — A Harvey waiver allows the court to consider facts of dismissed charges in sentencing but does not constitute a conviction.
- relied: People v. Munoz (2007) 155 Cal.App.4th 160 — The Harvey waiver allows the sentencing court to consider the facts of the dismissed charges in exercising its sentencing discretion regarding the charges for which a person has been convicted.
- relied: People v. Myers (1984) 157 Cal.App.3d 1162 — A Harvey waiver is not the same as a conviction and cannot be considered as such in sentencing.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court, relying on a Harvey waiver covering a dismissed methamphetamine possession count, imposed narcotics offender registration under Health and Safety Code section 11590 and a $50 lab fee under section 11372.5 as part of a probation grant following a plea to vehicle burglary and two non-drug misdemeanors. The Court of Appeal, accepting the People's concession, held that a Harvey waiver is not a conviction and that both statutes require a qualifying drug conviction, and directed the trial court to strike both conditions while otherwise affirming.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order requiring appellant to register as a narcotics offender under Health and Safety Code section 11590 based solely on a Harvey waiver of a dismissed drug count“Health and Safety Code section 11590 authorizing registration of narcotics offenders requires a conviction before registration can be ordered. Thus, the trial court did not have the authority to order narcotics offender registration in this case.” | de novo | error (statutory interpretation) | agree with court Section 11590 by its terms applies to persons 'convicted' of enumerated drug offenses; a Harvey waiver permits consideration of dismissed-count facts only in exercising sentencing discretion on the convicted counts and does not transform a dismissed count into a conviction. Munoz and Myers support this limit, and the People conceded. The ruling is a question of statutory authority, effectively reviewed de novo though the opinion does not state the standard. |
Imposition of a $50 criminal laboratory analysis fee under Health and Safety Code section 11372.5 based on a Harvey waiver“As we have discussed above, a Harvey waiver does not amount to a conviction. Thus, the court had no authority to impose the lab fee in this case.” | de novo | error (statutory interpretation) | agree with court Section 11372.5 imposes the lab fee on persons 'convicted' of specified drug offenses. With the methamphetamine count dismissed, there was no qualifying conviction, and a Harvey waiver cannot supply one. The court's reasoning parallels its registration analysis and is consistent with the plain statutory text and the People's concession. |
Authorities
- relied: People v. Harvey (1979) 25 Cal.3d 754 — Absent a waiver, a sentencing court may not consider facts underlying dismissed counts; a 'Harvey waiver' permits such consideration in sentencing on the counts of conviction.
- relied: People v. Munoz (2007) 155 Cal.App.4th 160 — A Harvey waiver allows the sentencing court to consider facts of dismissed charges in exercising sentencing discretion on the charges of conviction.
- relied: People v. Myers (1984) 157 Cal.App.3d 1162 — A Harvey waiver is not the equivalent of a conviction and cannot be treated as one at sentencing.
The appellate opinion: sound — The opinion correctly identifies that both Health and Safety Code sections 11590 and 11372.5 are triggered only by a conviction for an enumerated drug offense and that a Harvey waiver, which merely permits consideration of dismissed-count facts, cannot substitute for a conviction; the cited authorities support that distinction and the People conceded error. It is brief and does not state a standard of review or quote statutory text, but given the concession and plain statutory language the result is well supported.
Opinion
Filed 6/3/16 P. v. McFarland 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, D068650
Plaintiff and Respondent, v. (Super. Ct. No. JCF35080)
ANTHONY MC FARLAND,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Diane B.
Altamirano, Judge. Affirmed as modified and remanded with directions.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lise S. Jacobson and Randall D.
Einhorn, Deputy Attorneys General, for Plaintiff and Respondent. Appellant Anthony McFarland entered into a plea agreement. Under that agreement, appellant pled guilty to burglary of a vehicle (Pen. Code,1 § 459) and two misdemeanors: possession of burglary tools and fleeing from a police officer. The remaining counts, including misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) were dismissed with a Harvey waiver.2 The parties agreed appellant would receive three years of formal probation The trial court granted probation but added two conditions, which are the subject of this appeal. First, based on the Harvey waiver, the court ordered appellant to register as a narcotics offender, although the drug possession count had been dismissed. Second, and again based on the Harvey waiver, the court imposed a $50 lab fee.
This appeal challenges the imposition of drug conditions, where there was no "drug" conviction. The People correctly concede the trial court erred in imposing the challenged conditions. We will order the court to strike both conditions.3
DISCUSSION
A. The Registration Requirement The probation officer and the prosecution argued the Harvey waiver allowed the court to impose drug conditions even in the absence of a conviction for a drug-related offense.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 People v. Harvey (1979) 25 Cal.3d 754.
3 The facts of the underlying offenses are not relevant to the issues in this appeal. Thus we will omit the traditional statement of facts. 2 As the parties agree, the Harvey waiver allows the sentencing court to consider the facts of the dismissed charges in exercising its sentencing discretion regarding the charges for which a person has been convicted. (People v. Munoz (2007) 155 Cal.App.4th 160, 167.) The waiver is not the same as a conviction, and cannot be considered as such in sentencing. (People v. Myers (1984) 157 Cal.App.3d 1162, 1168.)
Health and Safety Code section 11590 authorizing registration of narcotics offenders requires a conviction before registration can be ordered. Thus, the trial court did not have the authority to order narcotics offender registration in this case.
B. Lab Fee Just as with the registration discussion, the power to impose a lab fee under Health and Safety Code section 11372.5 applies in cases where the defendant has been convicted of an appropriate drug-related offense. As we have discussed above, a Harvey waiver does not amount to a conviction. Thus, the court had no authority to impose the lab fee in this case.
DISPOSITION
The trial court is directed to strike the order requiring registration and to strike the $50 lab fee. The court shall amend the court's minutes appropriately. In all other respects the judgment is affirmed.
3 HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
Cites, in this corpus
- People v. Munoz C053570 · 2007-09-14
- People v. Myers Crim. 15734 · 1984-06-29
- People v. Harvey Crim 21022 · 1979-11-27