P. v. Santana

Filed 10/10/06 P. v. Santana CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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Under a plea agreement entered on January 10, 2006, defendant Enrique Santana pled no contest to one count of forcible sodomy (Pen. Code,^[1] § 286, subd. (c)) and admitted a special allegation that he used a deadly weapon (§ 12022.3(a)). The court sentenced defendant to a total prison term of six years to be served consecutively to a federal prison term he was serving. The court also ordered defendant to pay, inter alia, a $20 court security fee (§ 1465.8). On appeal, defendant contends the imposition of the court security fee violated the constitutional prohibition against ex post facto laws and statutory principles disfavoring retroactive application of statutes. We affirm.

DISCUSSION^[2]

Court Security Fee

Section 1465.8, subdivision (a)(1), provides in pertinent part: “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 . . . .” This statute was enacted on August 2, 2003, and became effective on August 17, 2003. (Stats. 2003, ch. 159 § 25.) The probation officer report reflects that defendant committed the instant offense on September 2, 2001. Defendant argues that because he committed the offense before the effective date of section 1465.8, the imposition of the $20 court security fee pursuant to that statute violated (1) the constitutional proscription against ex post facto laws, and (2) section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” Assuming defendant did not waive his claims by failing to object to the fee when it was imposed, we reject them for the reasons discussed below.

Prohibition of Ex Post Facto Punishment

“In the context before us, a prohibited ex post facto law is a retrospective statute that increases a punishment beyond that applicable at the time the crime was committed.” (People v. High (2004) 119 Cal.App.4th 1192, 1195.) To determine whether a statute violates California and United States constitutional proscriptions against ex post facto legislation, we utilize a potentially two-part analysis. First “‘[w]e must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” [Citation.] If the intention of the legislature was to impose punishment that ends the inquiry.’” (People v. Wallace (2004) 120 Cal.App.4th 867, 874 (Wallace).) This first part of the inquiry “‘”looks solely to the declared purpose of the legislature as well as the structure and design of the statute.”’” (People v. High, supra, 119 Cal.App.4th at p. 1196.) If we conclude the statute evinces a legislative intent to establish civil proceedings, “‘we must further examine whether the statutory scheme is “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’”’” (Wallace, supra, 120 Cal.App.4th at p. 874.)

In Wallace, the court rejected the claim that section 1465.8 was an unconstitutional ex post facto law, holding that (1) the Legislature, in enacting the statute, did not intend the court security fee as punishment and (2) the court security fee imposed by the statute was not so punitive either in purpose or effect to negate the Legislature’s intention to treat the fee as a civil matter. We agree.

Defendant contends Wallace was wrongly decided. He contends the court security fee is not civil in nature because it “applies only in criminal cases, and then only upon conviction . . . .” However, defendant does not take into account the declared purpose of the Legislature and the structure and language of the statute. The stated reason for enacting the court security fee appears in section 1465.8 subdivision (a)(1): “To ensure and maintain adequate funding for court security . . . .” And as the Wallace court stated, “‘we “ordinarily defer to the legislature’s stated intent[]” . . . .’” (Wallace, supra, 120 Cal.App.4th at p. 874.)

The structure of the statute also suggests the court security fee is civil in nature, because the fee is $20, regardless of the seriousness of the offense. (Compare People v. High, supra, 119 Cal.App.4th at p. 1198 [state court facilities construction fee found to be punitive, in part because it was “calculated on ‘every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses’ at the rate of $5 for every $10,” and therefore “[t]he penalty imposed tracks the seriousness of the underlying offense and its base penalty”].)

Finally, as the Wallace court pointed out, the Legislature chose not to refer to the $20 due upon conviction as a fine. “[R]ather it is referred to in section 1465.8 on five occasions as a fee. The Legislature’s choice of what in most cases would be considered a more nonpunitive term, a fee as distinguished from a fine, is directly relevant albeit not entirely dispositive in assessing the legislative intent question which is the first prong of the ex post facto analysis.” (Wallace, supra, 120 Cal.App.4th at p. 876.) As the court in Wallace correctly concluded, section 1465.8 does not violate constitutional proscriptions against ex post facto laws.Statutory Retroactivity Limitations

As indicated above, section 3 provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” The statute “embodies the general rule that when there is nothing to indicate the contrary it will be presumed that the Legislature intended a statute to operate prospectively and not retroactively. ‘That rule of construction, however, is not a straitjacket . . . .’” ( In re Chavez (2004) 114 Cal.App.4th 989, 993.) “There remains the question of what the terms ‘prospective’ and ‘retrospective’ mean.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.)

“Certainly a law is retrospective if it defines past conduct as a crime, increases the punishment for such conduct, or eliminates a defense to a criminal charge based on such conduct. Such a law, as applied to a past crime, ‘change[s] the legal consequences of an act completed before [the law’s] effective date,’ namely the defendant’s criminal behavior. [Citations.] Application of such a law to past crimes would also violate the constitutional rule against ex post facto legislation.” (Tapia v. Superior Court, supra, 53 Cal.3d at p. 288.) But, “[a] statute does not operate retrospectively simply because its application depends on facts or conditions existing before its enactment.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) “‘In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date.” (People v. Williams (2004) 118 Cal.App.4th 735, 747.) “Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.’ [Citation.]” (Ibid., emphasis added.)

Here, although defendant committed the instant offenses before the effective date of section 1465.8, he pled no contest and was sentenced in 2006, and therefore his conviction did not occur until after the effective date of the statute. In our view, although defendant’s conviction was, of course, necessarily dependent on his earlier commission of the instant offense, the last act or event necessary to trigger the legal consequence of the court security fee was, collectively, defendant’s conviction. Therefore, section 1465.8 does not operate retroactively and the imposition of the court security fee does not violate section 3.^[3]

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Gomes, J. and Hill, J.

^[1] All statutory references are to the Penal Code.

^[2] Because the facts of the instant offense are not relevant to the issues raised on appeal, we will forgo a recitation of those facts.

^[3] The Supreme Court has granted review in two recent cases, one of which found the court security fee could not be imposed retroactively (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415) and another which concluded section 3 did not prevent retroactive application of section 1465.8 (People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508).