P. v. Turturici

Filed 2/28/07 P. v. Turturici CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Joseph P. Turturici pled no contest to one count of willfully and intentionally using the contractors license of another, with intent to defraud, under Business & Professions Code section 7027.3. In sentencing appellant, the trial court imposed a court security fee of $20 under Penal Code section 1465.8.[1] On appeal, appellant contends that the imposition of the court security fee violated constitutional prohibitions against retroactive and ex post facto application of statutes. We modify the lower courts judgment to strike the court security fee under section 1465.8 and, as so modified, affirm.

STATEMENT OF THE CASE

On March 24, 2003, appellant was charged with two felony counts of willfully and intentionally using a contractors license number belonging to another, with intent to defraud (Bus. & Prof. Code, 7027.3) and two misdemeanor counts of unlawfully engaging in the business of, and acting in the capacity of, a contractor, without having a license from the Contractors State License Board of the State of California (Bus. & Prof. Code, 7028). Appellant pled no contest on May 29, 2003, to count 1 of the complaint, for willfully and intentionally using a contractors license number belonging to another, with intent to defraud. The trial court simultaneously dismissed the rest of the charges subject to a Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754.) On April 1, 2005, appellant was admitted to probation for a period of 36 months, ordered to complete 30 hours of community service, and ordered to pay $9,892.77 in restitution, fines, and fees, $20 of which was a court security fee under section 1465.8.

The probation department filed a request on November 7, 2005, that probation be summarily revoked for failure to complete community service work as ordered. Three days later on November 10, 2005, the court modified appellants probation, requiring that he complete a total of 60 hours of community service. Probation was again summarily revoked on January 3, 2006. Appellant admitted this last violation of probation on February 9, 2006.

On March 22, 2006, appellant was sentenced to state prison for the upper term of three years and ordered to pay restitution fines totaling $400, restitution to one of his victims in the amount of $8,777.88, and the $20 court security fee specified under section 1465.8. On March 24, 2006, the court recalled the sentence announced two days earlier. Even so, appellant filed a notice of appeal from the March 22 order on April 11, 2006. On July 19, 2006, the court reinstated appellants probation, with a modification that he be required to successfully complete an outpatient substance abuse program.

STATEMENT OF FACTS

Appellants conviction in this matter arose from a plea of no contest. The record does not contain a probation officers report, nor a transcript of preliminary hearing, nor any other discussion of the facts underlying the conviction. However, the only issue on appeal is whether or not the imposition of the $20 court security fee was proper, and therefore the facts are not necessary for the resolution of this appeal.

DISCUSSION

Appellant contends that the trial courts imposition of a court security fee under section 1465.8 violates section 3, because his offense was committed before the effective date of the fee-authorizing statute. We agree.

The Legislature enacted section 1465.8 on August 2, 2003, and the statute became effective on August 17, 2003. ( 1465.8.) Appellant committed the offense to which he later pled no contest on January 22, 2002. Appellant was sentenced on April 1, 2005.

Section 3 provides that [n]o part of [the Penal Code] is retroactive, unless expressly so declared. (See also People v. Grant (1999) 20 Cal.4th 150, 156 (Grant).) The California Supreme Court held that, [i]n general, application of a law is retroactive only if it attaches new legal consequences to, or increases a partys liability for, an event, transaction, or conduct that was completed before the laws effective date. (Id. at p. 157, citing Landgraf v. USI Film Products (1994) 511 U.S. 244, 268-270.) Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statutes occurred before or after the statutes effective date. (Grant, at p. 157, citing Travenol Laboratories, Inc. v. U.S. (Fed. Cir. 1997) 118 F.3d 749, 752, and McAndrews v. Fleet Bank of Massachusetts, N.A. (1st Cir. 1993) 989 F.2d 13, 16.) A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment. (Grant, at p. 157, quoting Kizer v. Hanna (1989) 48 Cal.3d 1, 7.)

Appellant contends that section 1465.8 does not explicitly show a legislative intent that it be applied retroactively and, therefore, the statute cannot be applied to [attach] new legal consequences to . . . conduct that was completed before the laws effective date. (Grant, supra, 20 Cal.4th at p. 157.) Respondent argues that [t]he Legislatures intent was to have the fee apply immediately, to all who were convicted after the statutes effective date . . . .

However, the last act necessary to trigger application of the statute was not appellants conviction, as posited by respondent, but rather the offense appellant committed on January 22, 2002. Whether or not the $20 security fee can be imposed only after a conviction, the imposition of that fee is nevertheless a new legal consequence attaching to the offense committed by appellant before the effective date of section 1465.8. (Grant, supra, 20 Cal.4th at p. 157.) Allowing this fee to stand would increase his liability for actions that were completed before the effective date of section 1465.8. (Grant, at p. 157.)

This is not true for every application of a statute to offenses completed before the effective date. In Tapia v. Superior Court (1991) 53 Cal.3d 282, 297-300, the California Supreme Court held that laws governing trial procedure may be applied to trials of offenses committed before the laws became effective. Even though applied to the prosecution of a crime committed before the laws effective date, a law addressing the conduct of trials still addresses conduct in the future. (Id. at p. 288.) Such a statute  is not made retroactive merely because it draws upon facts existing prior to its enactment. . . . [Instead, the] effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future.  (Strauch v. Superior Court (1980) 107 Cal.App.3d 45, 48-49, quoting Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600-601.) However, in contrast to statutes such as those governing trial procedure, imposition of a court security fee on a conviction for actions occurring before the effective date of section 1465.8 necessarily adds a new legal consequence to the conduct. Therefore, an application of section 1465.8 to a conviction for a crime that occurred prior to the statutes effective date violates section 3.

Appellant also contends that the trial courts imposition of a court security fee under section 1465.8 violates the constitutional ban on ex post facto laws by making punishment for a crime more burdensome after the commission of the crime.

In People v. Wallace (2004) 120 Cal.App.4th 867, 870 (Wallace), section 1465.8 was upheld against a challenge that it violated both the United States and California Constitutions prohibitions on passage of any ex post facto law. (U.S. Const., art. I,  9, cl. 3; Cal. Const., art. I, 9.) There is a two-part test used to determine whether or not a statute constitutes an ex post facto law. (Wallace, at p. 874.) First, the court must  ascertain whether the legislature meant the statute to establish civil proceedings.  (Ibid., quoting Kansas v. Hendricks (1997) 521 U.S. 346, 361.) If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, [the court] must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the States] intention to deem it civil.    (Wallace, at p. 874, quoting United States v. Ward (1980) 448 U.S. 242, 248-249.) Under this second part of the test, only the clearest proof  will suffice to override Legislature intent and transform what has been denominated a civil remedy into a criminal penalty. (United States v.Ward, supra, at p. 249.) The court in Wallace held that section 1465.8 was enacted for a nonpunitive purpose, based on statutory language that the section was meant to  ensure and maintain adequate funding for court security. (Wallace, supra, 120 Cal.App.4th at p. 875, quoting  1465.8.) Furthermore, there was no clear proof that the statute was so punitive in purpose or effect as to negate the Legislatures intent. (Wallace, at p. 875.) Therefore, the court found that the law did not act contrary to the Constitutions ban on ex post facto laws. (Id. at p. 878.)

However, the analysis by the appellate court in Wallace of whether or not section 1465.8 violated the Constitutions prohibition on ex post facto laws does not affect the outcome here or the retroactivity issue above. The determination of whether the security fee attaches new legal consequences to conduct that occurred before the statutes effective date is not affected by whether the fee was civil or punitive in nature within the meaning of the ex post facto clauses of the United States and California Constitutions. Therefore, we do not need to reach any questions raised by those clauses because we have concluded that the fee at issue here cannot be retroactively imposed.

DISPOSITION

The judgment is hereby modified to strike the $20 security fee imposed under section 1465.8 and, as so modified, is otherwise affirmed.

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Lambden, J.

We concur:

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Kline, P.J.

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Haerle, J.

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[1] All further unspecified section references refer to the Penal Code.