Filed 11/23/05 P. v. Martin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE, Plaintiff and Respondent, v. LONNY MARTIN, Defendant and Appellant.

C048479 (Super. Ct. No. CM001718)

In April 1993, defendant Lonny Martin pleaded no contest to cultivation of marijuana. (Health & Saf. Code, § 11358.) He failed to appear for sentencing in June 1993 and next appeared in court in October 2004.^[1] He was sentenced to state prison for two years and was ordered to pay a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)); a $300 parole revocation fine (Pen. Code, § 1202.45); a $170 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), including penalty assessments; a $510 drug program fee (Health & Saf. Code, § 11372.7), including penalty assessments; and a $20 court security fee (Pen. Code, § 1465.8).

Defendant contends, and the People concede, ex post facto principles require various reductions of the laboratory analysis fee and the drug program fee, and the striking of the parole revocation fine. We agree. Defendant also claims the $20 court security fee violates ex post facto principles and cannot be applied prospectively to this case. We reject these last contentions and shall modify the judgment.

FACTS

The facts of defendant's offense are not at issue and need not be set forth in this opinion.

DISCUSSION

I

Defendant contends, and the People concede, ex post facto principles require that the $170 laboratory analysis fee be reduced. We accept the People's concession.

The $170 laboratory analysis fee evidently consists of a $50 base fee (Health & Saf. Code, § 11372.5), a $50 state penalty assessment (Pen. Code, § 1464), a $35 county penalty assessment (Gov. Code, § 76000), a $10 state surcharge on fines (Pen. Code, § 1465.7), and a $25 state court facilities construction penalty (Gov. Code, § 70372).^[2]

In High, supra, 119 Cal.App.4th 1192, the parties agreed, and we held, the state surcharge on fines (Pen. Code, § 1465.7) cannot be applied to offenses committed before its September 30, 2002 effective date. (High, at p. 1197 & fn. 2.) We further held, over the Attorney General's opposition, the state court facilities construction penalty (Gov. Code, § 70372) cannot be applied to offenses committed before its January 1, 2003 effective date. (High, at pp. 1197-1199, & 1197, fn. 2.)

As defendant committed his offense in August 1992, well before the effective dates of Penal Code section 1465.7 and Government Code section 70372, we shall modify the judgment by striking the state surcharge on fines and the state court facilities construction penalty from the laboratory analysis fee.

II

Defendant contends, and the People concede, ex post facto principles require that the $510 drug program fee be reduced. We accept the People's concession.

The $510 drug program fee evidently consists of a $150 base fee (Health & Saf. Code, § 11372.7), a $150 state penalty assessment (Pen. Code, § 1464), a $105 county penalty assessment (Gov. Code, § 76000), a $30 state surcharge on fines (Pen. Code, § 1465.7), and a $75 state court facilities construction penalty (Gov. Code, § 70372).

When defendant committed his offense in 1992, Health and Safety Code section 11372.7 provided a maximum base fee of $100, not $150. (Stats. 1987, ch. 621, § 4.5; see Stats. 1993, ch. 474, § 1.) We shall modify the judgment to impose a $100 base fee, a $100 state penalty assessment (Pen. Code, § 1464), and a $70 county penalty assessment (Gov. Code, § 76000). For the reasons stated in part I, ante, the state surcharge on fines and the state court facilities construction penalty must be stricken. We shall modify the judgment accordingly.

III

Defendant contends, and the People concede, ex post facto principles require that the parole revocation fine (Pen. Code, § 1202.45) be stricken. Section 1202.45 may not be applied to crimes committed before its August 3, 1995 effective date. (People v. Callejas (2000) 85 Cal.App.4th 667, 678.) We shall modify the judgment accordingly.

IV

Defendant contends ex post facto principles require that the $20 court security fee be stricken. We disagree with this contention.

Penal Code section 1465.8 became operative on August 17, 2003. (Stats. 2003, ch. 159, § 25.) It imposes a $20 security fee upon all criminal convictions in order â€