P. v. Chairenza

Filed 7/31/06 P. v. Chairenza CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Vincent Salvatore Chairenza appeals from a judgment following a guilty plea to possession of a controlled substance for sale. (Health & Saf. Code, § 11351.) The trial court suspended imposition of sentence and placed him on formal probation. Chairenza contends that, by imposing a probation revocation fine (Pen. Code, § 1202.44), and certain penalty assessments pursuant to Government Code sections 70372 and 76104.6,[1] the trial court violated the constitutional prohibition against ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) We will order the judgment modified to strike the probation revocation fine and remand for recomputation of the penalty assessments. In all other respects, we affirm.

FACTS AND PROCEDURAL HISTORY

In October 2002, the police conducted a surveillance of a location at which the police believed Chairenza was selling cocaine. After watching him complete an apparent drug sale, the police detained and searched Chairenza. Officers found one-half gram of cocaine.

Chairenza was charged with selling or transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)), and two counts of possession of a controlled substance for sale (Health & Saf. Code, § 11351). After a suppression motion was denied, Chairenza pleaded guilty to one count of possession for sale, and the other charges were dismissed. Chairenza was sentenced to three years probation conditioned upon serving 210 days in county jail. The court ordered him to pay a $400 restitution fine (Pen. Code, § 1202.4, subd. (b)) and stated that an additional $400 fine would be imposed if his probation was "unsuccessfully terminated." The court also imposed a $165 "fine plus penalty assessment" pursuant to Health and Safety Code section 11372.5, and a $495 "fine plus penalty assessment" pursuant to Health and Safety Code section 11372.7.

DISCUSSION

Probation Revocation Fine Violates Ex Post Facto Principles

Chairenza contends that a fine of $400 payable upon an "unsuccessful termination" of probation constitutes punishment that is not authorized by statute. Penal Code section 1202.44, which became effective in August 2004, requires a court to impose a $400 probation revocation fine at the time of sentencing a defendant to probation. (Stats. 2004, ch. 223, § 3, eff. Aug. 16, 2004.)[2] Respondent concedes that, because the offense occurred in October 2002, imposition of a probation revocation fine violates the constitutional prohibition against ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) We accept respondent's concession.

People v. Callejas (2000) 85 Cal.App.4th 667, 678, held that a similar provision imposing a parole revocation restitution fine (Pen. Code, § 1202.45) could not constitutionally be applied where the crime preceded enactment of the statute. The reasoning of Callejas applies equally to the imposition of probation revocation restitution fines pursuant to Penal Code section 1202.44.

Sections 70372 and 76104.6 Penalties Violate Ex Post Facto Laws

Chairenza contends that the trial court improperly included sections 70372 and 76104.6 fines in the penalties assessed on the fees imposed under Health and Safety Code sections 11372.5 and 11372.7. He contends that, because sections 70372 and 76104.6 were enacted after the commission of his offense, imposition of the fines violated the prohibition against ex post facto laws. We agree.

The trial court imposed a $165 laboratory analysis fee "plus penalty assessment" and a $495 drug program fee "plus penalty assessment" pursuant to Health and Safety Code sections 11372.5 and 11372.7, respectively. Although the minute order does not specify how these charges were calculated, the total amounts show that a portion of the penalties were assessed pursuant to sections 70372 and 76104.6.[3] The statutes became effective after the commission of Chairenza's offense. Section 70372 became operative on January 1, 2003 (Stats. 2002, ch. 1082, § 4), and section 76104.6 became effective on November 3, 2004 (added by initiative measure, Prop. 69, approved Nov. 2, 2004.)[4]

Both statutes are punitive and cannot be applied to offenses committed before their effective dates without violating the ex post facto clauses of the federal and state Constitutions. In so concluding, we rely on People v. High (2004) 119 Cal.App.4th 1192 (High) as dispositive regarding section 70372, and apply the reasoning of High to section 76104.6. (High, at pp. 1197-1199.)

Section 70372 levies a state court construction "penalty" on other fines or penalties imposed on defendants convicted of criminal offenses. Section 70372 is part of the Trial Court Facilities Act of 2002 which increased fees, fines and penalties in both civil and criminal proceedings to provide funds for the construction of state court facilities. (High, supra, 119 Cal.App.4th at p. 1198.)

Section 76104.6 levies a DNA database "penalty" on other fines or penalties imposed on defendants convicted of criminal offenses. Section 76104.6 was enacted by the Proposition 69 initiative measure referred to as the "DNA Fingerprint, Unsolved Crime and Innocence Protection Act." (Prop. 69, approved Nov. 2, 2004, effective Nov. 3, 2004.) The initiative was designed to expand the use of DNA testing. (Ibid.)

The ex post facto clauses prohibit the imposition of increased punishment after the commission of a crime. (Collins v. Youngblood (1990) 497 U.S. 37, 41-42; Tapia v. Superior Court (1991) 53 Cal.3d 282, 288; High, supra, 119 Cal.App.4th at p. 1195.) A statute which makes punishment for a crime more burdensome by imposing penalties after its commission is prohibited as ex post facto. (Collins, supra, at p. 42; People v. McVickers (1992) 4 Cal.4th 81, 84; High, supra, at pp. 1195-1196.)

A statute will be deemed to impose punishment either when the Legislature intends the sanction to be punitive, or when the effect of the statute is punitive. (High, supra, 119 Cal.App.4th at p. 1196.) A legislative intent to punish is sufficient to implicate the ex post facto prohibition without consideration of the effect of the statute. (Smith v. Doe (2003) 538 U.S. 84, 92-93; High, supra, at p. 1199; see also People v. Wallace (2004) 120 Cal.App.4th 867, 874.) The intent of the Legislature is determined by a statute's declared purpose "'". . . as well as the structure and design of the statute

. . . ."'" (High, supra, at pp. 1196-1197.)

When the legislative intent is not punitive, a statute will still be deemed punitive if the "'. . . sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature . . . .'" (High, supra, 119 Cal.App.4th at p. 1196; see also People v. Rivera (1998) 65 Cal.App.4th 705, 709.) In such a case, the party challenging the statute must provide "the clearest proof" of the punitive effect of the statute. (Smith v. Doe, supra, 538 U.S. at pp. 92-93; High, at pp. 1196-1197.)

Although the Legislature enacted section 70372 as a means to increase funds available to renovate and construct state court facilities, "the structure, operative principle, and descriptive language chosen reflect a penal purpose as well." (High, supra, 119 Cal.App.4th at p. 1198.) The state court facilities construction penalty is not a "user fee" because there is no "rational relationship between the amount of the assessment and the extent of the individual defendant's use." (Ibid.) The penalty is calculated on "'every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses'" at the same rate so as to promote the traditional retribution and deterrence aims of punishment. (Ibid.) Also, the statute reflects a punitive intent by designating the assessment as a "penalty." (Id., at p. 1199.) As our Supreme Court has observed in McVickers, "there is little dispute that additional jail time or extra fines are punishment." (People v. McVickers, supra, 4 Cal.4th at p. 84.)

Section 76104.6 is similar in structure, operative principle and language, and the analysis set forth in High is equally applicable and dispositive. The initiative is a method to provide funding for the use of DNA testing in law enforcement, but the penalty is calculated equally with respect to all criminal offenses irrespective of the importance of DNA testing. The statute also reflects a punitive purpose by designating the assessment as a "penalty."

Moreover, both sections 70372 and 76104.6 can be contrasted with other assessment statutes that have been deemed to be nonpunitive in intent and effect. In People v. Rivera, supra, 65 Cal.App.4th at page 711, the court held that the section 29550.2 booking and jail classification fee was not subject to ex post facto principles because it is designated as a "fee" and operates as a "user fee" by being tied to actual administrative costs incurred in the booking and jail classification process. (High, supra, 119 Cal.App.4th at p. 1199.)

Also, in People v. Wallace, supra, 120 Cal.App.4th at page 871, the court held that the Penal Code section 1465.8[5] court security fee was not punitive and not subject to the ex post facto clause. The court stated that the assessment was designated as a "fee," and was enacted in a bill which also imposed a "court security" fee in civil matters and which could only go into effect if specified levels of trial court funding were enacted by the Legislature. (Wallace, supra, at pp. 875-876.)

Respondent contends that High was wrongly decided, and also should not be extended to section 76104.6. Respondent argues that the factors used in determining the punitive effect of a statute support the conclusion that section 70372 and section 76104.6 are not punitive in effect. (See Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169.) These factors, however, are relevant only when the legislative intent appears to be civil and the issue is whether the effect of the enactment is sufficiently punitive to negate that intent. (Smith v. Doe, supra, 538 U.S. at p. 92; Kennedy v. Mendoza-Martinez, supra, at p. 169; People v. Castellanos (1999) 21 Cal.4th 785, 795.) Because we have concluded that the Legislature intended the penalty imposed by sections 70372 and 76104.6 to constitute punishment as well as a source of funds for other purposes, those factors are not material.

DISPOSITION

On remand the trial court is directed to strike the $400 probation revocation restitution fine (Pen. Code, § 1202.44), and to recalculate the fee and penalty assessments imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7 without including assessments set forth in sections 70372 and 76104.6. Otherwise, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Ken W. Riley, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, Jonathan B. Steiner, Executive Director, Suzan E. Hier, Staff Attorney, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Lawrence M. Daniels, Supervising Deputy Attorneys General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Real Estate Lawyers.

[1] All further statutory references are to the Government Code unless otherwise stated.

[2] Penal Code section 1202.44 provides that, "[i]n every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence . . . ."

[3] In reaching $165, it is apparent that the court added to the $50 Health and Safety Code section 11372.5 fee, a $50 Penal Code section 1464 penalty, a $35 section 76000 penalty, a $25 section 70372 penalty, and a $5 section 76104.6 penalty. In reaching $495, it is apparent that the court added to the $150 Health and Safety Code section 11372.7 fee, a $150 Penal Code section 1464 penalty, a $105 section 76000 penalty, a $75 section 70372 penalty and a $15 section 76104.6 penalty.

[4] In relevant part, section 70372 provides that "there shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . ."

In relevant part, section 76104.6 provides that "[f]or the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10) or fraction thereof in each county which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . ."

[5] Penal Code section 1465.8 provides: "(a)(1) To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses . . . . [¶] (2) For the purposes of this section, 'conviction' includes the dismissal of a traffic violation on the condition that the defendant attend a court-ordered traffic violator school, as authorized by Sections 41501 and 42005 of the Vehicle Code. . . ."