P. v. Hissong

Filed 4/13/07 P. v. Hissong 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Gary L. Paden, Judge.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Timothy Earl Hissong was convicted of six counts of lewd and lascivious acts upon a child under 14 and sentenced to 45 years to life. On appeal he challenges the courts imposition of a $20 court security fee. He argues that, because the Legislature created this fee after he committed the crimes, the court improperly applied it to him retroactively. We disagree.

FACTUAL AND PROCEDURAL HISTORIES

Because of the nature of defendants claim on appeal, a detailed account of the facts is unnecessary. He molested three young cousins on a number of occasions. !(AOB 3-7; RB 3)! The jury found him guilty of six counts of violating Penal Code section 288, subdivision (a).^[1] With respect to all counts, the jury found true a multiple-victim special circumstance. ( 667.61, subds. (b), (c)(8) & (e)(5) & 1203.066, subd. (a)(7).) With respect to four of the counts, the jury found true a substantial-sexual-conduct special circumstance. ( 1203.066, subd. (a)(8).) !(CT 112-121, 185-188)! Pursuant to the multiple-victim provision of section 667.61, the court imposed three consecutive sentences of 15 years to life for counts 1, 4, and 5one 15 years to life sentence for each of the three victimsfor a total of 45 years to life. For count 2, the court imposed the upper term of eight years, and for counts 3 and 6 it imposed two years each, equal to one-third of the middle term. These terms were to run concurrent with the term of 45 years to life. !(CT 248-249)! The court also imposed the $20 court security fee, a $10,000 restitution fine, and a $300 fine pursuant to section 290.3. !(CT 249-250)!

DISCUSSION

The People make a threshold argument that the court-security-fee issue is not preserved for appeal because defendant did not object to the fee at trial. We disagree. Defendants argument is that the fee is an unauthorized portion of his sentence. An unauthorized sentence may be addressed for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.) We turn to the merits.

Section 1465.8, subdivision (a)(1), provides:

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 as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.

This statute was enacted and became effective in August 2003. (Stats. 2003, ch. 159,  25; see Historical and Statutory Notes, 51A Wests Ann. Pen. Code (2007 supp.) foll.  1465.8, p. 106.) Defendants crimes were reported to authorities in 2001. !(4 RT [11/1/05] 86-87)! He was tried and convicted in 2005. !(CT 122, 185)!

Defendant does not argue that the court security fee constituted an ex post facto law as applied to him, violating the state and federal Constitutions. (See People v. Wallace (2004) 120 Cal.App.4th 867, 874-878 [court security fee not within constitutional prohibition on ex post facto laws because it is civil, not punitive, in nature].) Instead, he contends that the imposition of the fee violated section 3 of the Penal Code, which provides: No part of [the Penal Code] is retroactive, unless expressly so declared. He relies on cases defining the retroactive application of a new law as the attachment of new legal consequences to, or imposition of additional liability for, events or conduct completed before the new laws effective date. (People v. Grant (1999) 20 Cal.4th 150, 157; Landgraf v. USI Film Products (1994) 511 U.S. 244, 269 & fn. 23.) Because his crimes were completed by 2001, he contends, the imposition of the court security fee constituted additional liability for conduct completed before the 2003 effective date of the law that created the fee.

The People argue that the fee is not punishment but is rather in the nature of civil liability; they contend that the underlying concerns about retroactivity are different for civil liability than for criminal punishments. They further argue that in determining whether an application of a law is a retroactive application, courts look to the completion of the conduct or transaction to which the liability attaches. Because section 1465.8 imposes a $20 fee on every conviction for a criminal offense (italics added), they assert, application of the fee was not retroactive because the action for which the fee was imposed was completed upon defendants conviction in 2005, later than the effective date of the statute.

The question of whether section 1465.8 can be applied to convictions obtained after the sections effective date for crimes committed before it is pending before the California Supreme Court. (People v. Alford (2006) 137 Cal.App.4th 612, 619, review granted May 10, 2006, S142508; People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415.) We think the People have the better of the argument.

The purpose of the fee is to fund court security, not to add to an offenders punishment. It also cannot be said to have a punitive effect despite its nonpunitive purpose. It is, therefore, in the nature of an exaction of civil liability, not a criminal punishment. (People v. Wallace, supra, 120 Cal.App.4th at pp. 875-878.)

This does not mean that section 3 is inapplicable to section 1465.8. We acknowledge that, unlike the ex post facto doctrine, section 3s ban on retroactivity does not distinguish between laws whose effects are civil and those whose effects are punitive. Section 3 prohibits retroactive application of all sections of the Penal Code, no matter how they are characterized, unless they are expressly declared retroactive. Section 1465.8 is not expressly declared retroactive, so section 3 prohibits its retroactive application.

The civil/punitive distinction is relevant, however, to the determination of whether a trial courts action constitutes retroactive application of a law in the first place. Specifically, it is relevant to the question of whether the event, transaction, or conduct  was completed before the laws effective date. (People v. Grant, supra, 20 Cal.4th at p. 157.) A critical question for determining whether a law has been applied retroactively is what the last act or event was that was necessary to trigger application of the law and whether this act or event happened before or after the law became effective. (Ibid.) Should the conviction be considered the last event here, or was the completion of the offenses themselves the last event?

On the one hand, we would never hold that a law adding new punishment to an offense could be applied to crimes occurring before its enactment just because the conviction occurred after its enactment and constituted the completion of the transaction to which the new penalty attached. That approach would render section 3 nugatory. Conviction and sentencing under a new law obviously can only happen after the new law comes into existence, so treating the conviction or the sentence as the last act for retroactivity purposes would always defeat a section 3 retroactivity claim. That would mean that section 3 provided individuals with no protection from receiving punishments of which they had no notice when they committed their crimes. This cannot be correct.

Treating the conviction as the last event for purposes of retroactivity analysis is a different matter where the new provision only imposes civil liability, however. A civil exaction or regulation is not regarded as having retroactive effect just because it is imposed after the last opportunity for avoiding its effects. In Kizer v. Hanna (1989) 48 Cal.3d 1, for example, our Supreme Court considered a law under which the state could recover from a decedents estate an amount equal to all Medi-Cal benefits paid to the decedent during his or her lifetime. Jacob died two years after the law became effective. The state sought to collect from her estate an amount equal to all the benefits ever paid, including those paid before the effective date of the law. The estates executor argued that the state could only recover benefits paid after the law became effective. (Id. at pp. 3-4.) He contended that recovery of benefits paid earlier constituted retroactive application of the law, which was improper because the Legislature evinced no intent to apply the new law retroactively. (Id. at p. 7.) The Supreme Court held that recovery of all the benefits did not constitute retroactive application. (Id. at pp. 7-8.) The event that triggered the application of the statute was the arising of the decedents estate upon the decedents death, and this occurred after the laws effective date. (Id. at pp. 8-9.) It made no difference that the law as applied meant Jacobs estate was liable on account of benefits Jacob accepted at a time when she could not know of the consequences. (See id. at p. 17 (dis. opn. of Kaufman, J.).)

Kizer shows that, in the context of civil liability, it is permissible to treat as the last event for retroactivity-analysis purposes something that occurs after the liable partys last chance to avoid the liability. Defendant here is in no worse position in this regard than Jacob or her executor in Kizer.

The conclusion that this is permissible does not, however, mean it is correct in this case. To answer that question we turn again to the words of the statute. Section 1465.8 states that the fee shall be imposed on every conviction for a criminal offense . This language comports best with the conclusion that the Legislature conceived of the fee as an assessment on convictions, not an assessment on the underlying offenses themselves. If the Legislature had meant the latter, it could have imposed the fee on every criminal offense for which the defendant is convicted, for instance. To view the fee as an assessment on convictions, not offenses, is also consistent with the fees purpose of funding court security, as opposed to, say, law enforcement generally.

In sum: The last event for purposes of retroactivity analysis in this case was defendants conviction. Treating this as the last event is permissible because the court security fee imposes civil liability, not criminal punishment. Treating it as the last event is appropriate because section 1465.8 specifically refers to the conviction as the event on which the fee is imposed. Defendants conviction took place after section 1465.8 became effective. Therefore, the imposition of the fee on defendant was not a retroactive application of the law and did not violate section 3.

DISPOSITION

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Levy, J., and Hill, J.

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