P. v. Champion
Filed 5/14/07 P. v. Champion CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. ALLEN KEITH CHAMPION, Defendant and Appellant. | E040822 (Super.Ct.No. RIF 102299) OPINION |
APPEAL from the Superior Court of Riverside County. Norbert Ehrenfreund, Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed with directions.
Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
1. Introduction[1]
In a previous appeal, we affirmed defendants convictions for 40 counts of child molestation. ( 288, subd. (a).) We remanded the case for resentencing under section 67.61, subdivision (b). (People v. Champion (2005) 134 Cal.App.4th 1440, 1443, [nonpub. portion].) Defendant appeals from the sentence imposed on remand. ( 1237, subd. (a).) He challenges the $20 court security fee imposed under section 1465.8 and the trial courts handling of the recalculation of defendants custody credits.
We reject defendants claim of error concerning section 1465.8. We agree with defendant and the People that it is the obligation of the trial court to recalculate and credit against the modified sentence all actual time defendant has served. The matter is remanded again for that purpose.
2. Factual and Procedural Background
Upon remand, the trial court imposed a sentence of three consecutive indeterminate sentences of 15 years to life and 37 concurrent indeterminate sentences of 15 years to life, for a total indeterminate sentence of 45 years to life.[2] The court reimposed the post parole term, fines and fees, including the $20 court security fee authorized under section 1465.8. The court subsequently ordered credit for time served of 874 actual days plus 131 days pursuant to section 2933.1 for a total of 1,005 days, and ordered the Department of Corrections to recalculate defendants custody credits.
3. Section 1465.8
Section 1465.8, subdivision (a)(1) provides: To insure 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 . . . . This statute was enacted on August 2, 2003, and became operative on August 17, 2003. (Stats. 2003, ch. 159, 25.)
Defendant committed the underlying offenses before August 31, 2001. He was first sentenced on July 16, 2004, and sentenced again on June 5, 2006. Defendant argues that because he committed the original offenses before August 2, 2003, the effective date of section 1465.8, the imposition of the $20 court security fee must be stricken, as it cannot be applied retroactively. The People assert defendant has waived the issue by not raising it at either sentencing hearing. The People also contend the fee is constitutional.
Two recent decisions have addressed the application of retroactivity principles to court security fees and are now pending in our Supreme Court. (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S0141415 [holding the fee cannot be imposed retroactively because there was no clear indication that the Legislature intended the statute to be applied retroactively]; People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S0142508 [holding the fee may be imposed upon a defendant whose crime occurred before the effective date of the statute because the history, purpose, and impact of the law reveals the Legislature intended section 1465.8 to apply retroactively].)
Even if defendant did not waive the issue below, we agree with the reasoning in Alford that section 1465.8 may be applied retroactively: The enactment of section 1465.8 as part of an urgency measure to implement the Budget Act of 2003 indicates a legislative intent to implement the statute immediately; retroactive application facilitates the stated objective of the statute, which is to ensure and maintain adequate funding for court security; the imposition of the fee does not interfere with a defendants antecedent rights; a defendant does not have a vested interest in avoiding a minimal contribution to court security; and a defendant does not incur additional punishment from imposition of the fee. (People v. Wallace (2004) 120 Cal.App.4th 867, 871-878.)
4. Recalculation of Custody Credits
Defendant further objects to the trial court directing the Department of Corrections to adjust defendants custody credits. The proper procedure when a prison term is modified upon remand is for the sentencing court, not the Department of Corrections, to recalculate and credit against the modified sentence all actual time defendant has served before or after the original commitment: [T]he trial court, having modified defendants sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time. . . . [T]he courts duty in this respect arose from section 2900.1, which specifies that when a sentence is modified while in progress, the time already served shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts. (People v. Buckhalter (2001) 26 Cal.4th 20, 37.)
5. Disposition
We affirm the judgment but remand for the sentencing court to recalculate defendants custody credits and to direct the abstract of judgment be amended in accordance with said modification.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Hollenhorst
Acting P. J.
s/Miller
J.
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[1] All statutory references are to the Penal Code unless stated otherwise.
[2] The sentence on remand replaced the previous total sentence of 47 years to life, a determinate sentence of 32 years to life combined with an indeterminate sentence of 15 years to life. (People v. Champion, supra, 134 Cal.App.4th 1440 [nonpub. portion].)
