P. v. Brinkley

Filed 9/29/06 P. v. Brinkley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.

Amanda F. Benedict, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.

In 2002, defendant pleaded guilty to one count of lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a))^[1] in exchange for the dismissal of the more serious remaining count. Defendant was placed on three years of formal probation on various terms and conditions, including serving 365 days in county jail.

In 2003, the Legislature enacted section 1465.8, which provided that a $20 court security fee shall be assessed against all convictions.

In June 2004, defendant’s probation was revoked based on defendant’s failure to inform his probation officer of his arrest in Los Angeles County for rape. Following defendant’s admission to the probation violation, the trial court reinstated defendant’s probation with the condition that he serve an additional 90 days in local custody.

In November 2004, defendant’s probation was again revoked based upon defendant’s failure to complete his 90 days in custody and upon his arrest in Los Angeles County for assault with a deadly weapon. Following a probation violation hearing in September 2005, the trial court found that defendant had violated the “violate no law” term of his probation. The court then revoked defendant’s probation, sentenced him to six years in prison, and imposed the $20 court security fee pursuant to section 1465.8. Defendant’s sole contention on appeal is that the section 1465.8 court security fee must be stricken because it violates retroactivity principles. We reject this contention and affirm the judgment.

I

DISCUSSION^[2]

Section 1465.8, subdivision (a)(1) provides: “To insure 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 . . . .”^[3] This statute was enacted on August 2, 2003, and became operative on August 17, 2003. (Stats. 2003, ch. 159, § 25.)

Defendant committed the underlying offense on July 5, 2001, and was placed on probation in March 2002. Defendant argues that because he committed the original offense and was placed on probation before the effective date of section 1465.8, the imposition of the $20 court security fee pursuant to that statute must be stricken, as it cannot be applied retroactively.^[4] The People assert imposition of this fee is mandatory (see People v. Smith (2001) 24 Cal.4th 849, 853) and maintain applying the court security fee retroactively to defendant’s case meets the legislative intent underlying the statute.

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. [Citations.] 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.]” (People v. Williams (2004) 118 Cal.App.4th 735, 747.)

Two recent decisions addressed the application of retroactivity principles to court security fees and are now pending in our Supreme Court. (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415 [holding the fee cannot be imposed retroactively because there was no clear indication that the Legislature intended the statute to be applied retroactively]; People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508 [holding the fee may be imposed upon a defendant whose crime occurred before the effective date of the statute because the history, purpose, and impact of the law reveals the Legislature intended section 1465.8 to apply retroactively].)

We agree with the reasoning in Alford that section 1465.8 may be applied retroactively: The enactment of section 1465.8 as part of an urgency measure to implement the Budget Act of 2003 indicates a legislative intent to implement the statute immediately; retroactive application facilitates the stated objective of the statute, which is to ensure and maintain adequate funding for court security; the imposition of the fee does not interfere with a defendant’s antecedent rights; a defendant does not have a vested interest in avoiding a minimal contribution to court security; and a defendant does not incur additional punishment from imposition of the fee.

II

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] The details of defendant’s criminal conduct are not relevant to the limited issues he raises in this appeal. Those details are set out in his opening brief, and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.

^[3] Section 1465.8 provides in full: “(a)(1) 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.

(2) For the purposes of this section, ‘conviction’ includes the dismissal of a traffic violation on the condition that the defendant attend a court-ordered traffic violator school, as authorized by Sections 41501 and 42005 of the Vehicle Code. This security fee shall be deposited in accordance with subdivision (d), and may not be included with the fee calculated and distributed pursuant to Section 42007 of the Vehicle Code.

(b) This fee shall be in addition to the state penalty assessed pursuant to Section 1464 and may not be included in the base fine to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.

(c) When bail is deposited for an offense to which this section applies, and for which a court appearance is not necessary, the person making the deposit shall also deposit a sufficient amount to include the fee prescribed by this section.

(d) Notwithstanding any other provision of law, the fees collected pursuant to subdivision (a) shall all be deposited in a special account in the county treasury and transmitted therefrom monthly to the Controller for deposit in the Trial Court Trust Fund.

(e) The Judicial Council shall provide for the administration of this section.”

^[4] Citing People v. Wallace (2004) 120 Cal.App.4th 867, defendant concedes that application of section 1465.8 to conduct preceding its effective date does not violate ex post facto principles. 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. (Wallace, at p. 870.)