P. v. Lee

Filed 7/25/06 P. v. Lee CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Anthony J. Lee pleaded no contest to one count of assault by means of force likely to produce great bodily injury. He contends on appeal that the trial court erred in imposing a $20 court security fee and failing to credit him for one day served when sentencing him. We agree that the security fee was improperly imposed and order the abstract of judgment modified to strike the fee, but we decline to consider the issue of credit for time served, which is more properly brought before the trial court. As modified, the judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

As both defendant and the People agree, a detailed recitation of the facts leading up to defendant's sentencing is unnecessary to resolution of the issues before us. Defendant was charged by information filed on August 25, 1999, with the following four counts: (1) assault by means of force likely to produce great bodily injury (Pen. Code,[1] § 245, subd. (a)(1)); (2) terrorist threats (§ 422); (3) false imprisonment (§ 236); and (4) battery (§ 243, subd. (e)(1)).

On January 10, 2000, pursuant to a negotiated disposition, defendant pleaded no contest to the first count, on the condition that the People would dismiss the remaining counts, defendant would not serve time in state prison, and he would be referred to an alternative sentencing program for any jail time imposed. On April 24, 2000, defendant was sentenced to formal probation, which included 12 months in county jail. Defendant failed to surrender as ordered because he was incarcerated at the time in Butte County on an unrelated charge. On February 13, 2001, probation was summarily revoked, and on March 5, 2001, the court issued a bench warrant for defendant's arrest. Defendant was not arrested on the bench warrant and returned to Solano County until September 15, 2005.

On September 19, 2005, the court terminated defendant's probation as unsuccessful and sentenced him to two years in state prison, to be served concurrently with his Butte County sentence. The court also imposed a $20 court security fee pursuant to section 1465.8 and two restitution fines.

Defendant filed a timely notice of appeal.

II. DISCUSSION

A. The $20 Court Security Fee

Defendant contends that the imposition of the $20 court security fee pursuant to section 1465.8[2] violated the federal ex post facto clause (U.S. Const., art. I, § 9) and the prohibition in section 3 against the retroactive application of a new law, because the statute was enacted in 2003, well after defendant committed the offense for which he was ultimately sentenced.

(1) Ex Post Facto Implications Of Section 1465.8

Turning first to defendant's argument that the $20 court security fee was imposed in violation of the federal ex post facto clause, â€