P. v. Talk
Filed 8/29/07 P. v. Talk CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE, Plaintiff and Respondent, v. THOMAS GENE TALK, Defendant and Appellant. | C053319 (Super. Ct. No. CM021055) |
Defendant Thomas Gene Talk pled guilty to transportation of methamphetamine arising out of conduct on March 1, 2004. He was sentenced to three years in state prison and was ordered to pay various fines and penalties, including DNA penalty assessments in the amount of $5 and $15. (Gov. Code, 76104.6.)
On appeal, defendant contends, and the People concede, that the imposition of DNA penalty assessments violates the state and federal constitutional prohibitions against ex post facto laws. We agree and shall modify the judgment accordingly.
DISCUSSION
Article I, section 10 of the federal Constitution provides in part: No state shall . . . pass any . . . ex post facto law . . . . Similarly, article I, section 9 of our state Constitution provides in part: A[n] . . . ex post facto law . . . may not be passed. Both the federal and state constitutional provisions are analyzed using federal standards. (People v. McVickers (1992) 4 Cal.4th 81, 84.)
Therefore, a penalty assessment cannot be imposed without violating the constitutional prohibition of ex post facto laws if (1) the defendants criminal act preceded its enactment and (2) the assessment is in fact a penalty. (Trop v. Dulles (1958) 356 U.S. 86, 95-96 [2 L.Ed.2d 630, 639-640] [an ex post facto prohibition applies only to statutes imposing penalties, i.e., punishment].)
The DNA penalty assessment was added by Proposition 69, a measure approved by the voters on November 2, 2004, effective the following day. (Cal. Const., art. II, 10, subd. (a).) Thus, defendants crime, committed on March 1, 2004, preceded enactment of the DNA penalty assessment.
Thus, the question is whether the DNA penalty assessment is punitive within the meaning of the ex post facto prohibition. If the intention of the legislature [or electorate] was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we 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. [Citations.] (Smith v. Doe (2003) 538 U.S. 84, 92 [155 L.Ed.2d 164, 176].)
The DNA penalty assessment statute states in pertinent part: For the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10) or fraction thereof in each county which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . . (Gov. Code, 76104.6, subd. (a); italics added.)
Thus, the assessment is denominated a penalty; it applies to every criminal fine, penalty, and forfeiture; it is assessed in proportion to the defendants criminal culpability; and it is to be collected and processed using the same statute that authorizes the state penalty assessment. In addition, the assessment will be used primarily for law enforcement purposes. Its proceeds are to be deposited into the county and state DNA identification funds, which in turn are to be used to comply with the requirements of Penal Code section 298.3 (Gov. Code, 76104.6, subd. (b)(2), (b)(4)(A)), a provision authorizing the Department of Justice DNA Laboratory to contract with other public and private laboratories to ensure expeditious and economical processing of offender specimens and samples for inclusion in the FBIs CODIS System and the states DNA Database and Data Bank Program . . . . (Pen. Code, 298.3, subd. (a).)
The DNA penalty assessment is similar to the state court facilities construction penalty assessment (Gov. Code, 70372), which is an ex post facto law for crimes committed prior to its effective date. (People v. High (2004) 119 Cal.App.4th 1192, 1197-1199.) Like the construction penalty, the DNA penalty assessment is denominated a penalty and is based upon a percentage of any fine, penalty, or forfeiture. In addition, the bulk of the DNA penalty assessment funds will be used to process DNA samples and specimens collected in the future for inclusion in data banks operated by and for the benefit of law enforcement.
The fact that the DNA penalty assessment is punitive is also shown by comparing it to two assessments of recent vintage: (1) the court security fee (Pen. Code, 1465.8, subd. (a)(1)), which is nonpunitive because it is denominated a fee, is calculated in rough proportion to court usage, and is imposed on the vast majority of court users, both civil and criminal (People v. Wallace (2004) 120 Cal.App.4th 867, 871-879); and (2) the criminal justice administration and booking fee (Gov. Code, 29550.2, subd. (a)), which are nonpunitive user fees primarily because they are designated to be fees and are limited to the actual administrative costs in booking or otherwise processing those arrested and convicted (People v. Rivera (1998) 65 Cal.App.4th 705, 707-712).
Unlike the court security fee and the criminal justice administration and booking fee, the DNA penalty assessment is explicitly designated a penalty; it is calculated in direct proportion to other fines, penalties, and forfeitures imposed; it is collected using the same provision for collecting the state penalty assessment; and it will be used primarily for future law enforcement purposes. Thus, it is a punitive ex post facto law with respect to offenses committed prior to its effective date.
Accordingly, the DNA penalty assessments imposed in this case must be stricken because defendant committed the qualifying offense prior to the effective date of Government Code section 76104.6.
DISPOSITION
The judgment is modified by striking the DNA penalty assessments of $5 and $15 imposed by the trial court pursuant to Government Code section 76104.6. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
SCOTLAND, P.J.
We concur:
BUTZ , J.
CANTIL-SAKAUYE , J.
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