P. v. Cheney

Filed 10/6/05 P. v. Cheney 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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)

----

Defendant Brandon Svend Cheney pled no contest to passing multiple worthless checks, in violation of Penal Code section 476a, subdivision (a), and admitted having served a prior prison term (case No. CM017984).

Released on his own recognizance after the bad check plea, defendant failed to show up for sentencing. He was charged with one count of failure to appear, to which he subsequently entered a no contest plea (case No. CM019498) in exchange for the dismissal of an enhancement for committing an offense while released on one’s own recognizance.

At sentencing for both cases, the trial court imposed the upper term of three years on the bad check conviction and imposed certain fines and fees. These were: a $20 security surcharge and a $35 theft fine. On appeal, defendant contends the court erred in imposing each of these three components of his sentence. Only the final contention has merit. We shall strike the theft fine imposed pursuant to Penal Code section 1202.5 and otherwise affirm the judgment. DISCUSSION

I

Blakely Violation

Relying on Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], defendant contends the trial court violated his right to have a jury determine, beyond a reasonable doubt, the aggravating factors it used in imposing the upper term. Defendant recognizes that the California Supreme Court rejected his Blakely contention in People v. Black (2005) 35 Cal.4th 1238, 1244, 1262, but states he is making the argument to preserve the issue for federal review.^[1] Pursuant to Black, we

reject the contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

However, there is another reason to affirm the upper term sentence. The United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] a prior conviction may always be used to enhance a prison sentence. (Id. at p. 490 [147 L.Ed.2d at p. 455].) This ruling remains valid after Blakely. (See United States v. Booker (2005) 543 U.S. 220, 230-231 [160 L.Ed.2d 621, 641-642].)

One of the reasons the trial court gave for imposing the upper term is defendant’s prior criminal record. (Cal. Rules of Court, rule 4.421(b)(2).) The trial court noted prior to imposing the upper term that defendant has a “past history . . . including violations for burglary as a juvenile, then he starts his adult career with writing bad checks, stealing, going to prison. Then we have this offense where there are multiple victims, a huge amount of monetary loss.” In imposing the upper term, the court opined that “the factors in aggravation far outweigh any circumstances in mitigation: Multiple victims, huge losses, history of crime, multiple violations of parole and probation.” (Italics added.) We construe the court’s comments to reflect its opinion that the upper term was warranted, in part, because defendant had numerous prior convictions. Use of this factor did not violate Blakely, and, because one valid factor in aggravation is sufficient to expose defendant to the upper term (People v. Cruz (1995) 38 Cal.App.4th 427, 433), defendant’s sentence did not violate the rule of Apprendi and Blakely.

II

The Court Security Fee

We next consider defendant’s challenge to the $20 court security fee imposed pursuant to Penal Code section 1465.8, subdivision (a)(1), which provides in pertinent part: “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 . . . .”

This statute was enacted on August 2, 2003, and became effective on August 17, 2003. (Stats. 2003, ch. 159, § 25.) Defendant committed the bad check offenses in 2000 and entered a no contest plea to that charge in March 2003. He committed the offense of unlawfully failing to appear on May 28, 2003, and pled no contest to that charge on October 25, 2005. He was sentenced in both cases in December 2005.

Defendant contends on appeal that because he committed all offenses before the effective date of Penal Code section 1465.8, the imposition of the $20 court security fee pursuant to that statute violated Penal Code section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” As his sentencing encompassed both cases, we ask whether imposition of the fee was proper in either case and, if so, shall uphold its imposition. Penal Code section 3 “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.)

Two recent decisions have 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 Penal Code section 1465.8 to apply retroactively].)

We agree with the reasoning in Alford that Penal Code section 1465.8 may be applied retroactively: the enactment of Penal Code 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. Accordingly, we find no error in the imposition of this fine.

III

The Theft Fine

Finally, defendant contends the $35 fine (theft fine plus penalty assessments) imposed pursuant to section 1202.5 is improper because he did not enter a plea to any of that section’s enumerated offenses. He is correct.

Penal Code section 1202.5 authorizes a $10 fine for local crime prevention programs where a defendant is convicted of enumerated theft-related offenses. (People v. Clark (1992) 7 Cal.App.4th 1041, 1048, fn. 2.) Penal Code section 1202.5, subdivision (a), provides in material part: “In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed.”

The fine is unauthorized because defendant was convicted of violation of Penal Code section 476a, subdivision (a), which is not one of the enumerated offenses.

DISPOSITION

The judgment is modified to strike the fine imposed pursuant to Penal Code section 1202.5; in all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

MORRISON , J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

^[1] We note, however, that a petition for certiorari is pending in People v. Black, supra, 35 Cal.4th 1238, and the United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v. California (2006) 126 S.Ct. 1329, ___ U.S. ___ [164 L.Ed.2d 47], which addresses a similar issue (and is set for argument on October 11, 2006).

P. v. Cheney

Filed 10/6/05 P. v. Cheney 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)

----

Defendant Brandon Svend Cheney pled no contest to passing multiple worthless checks, in violation of Penal Code section 476a, subdivision (a), and admitted having served a prior prison term (case No. CM017984).

Released on his own recognizance after the bad check plea, defendant failed to show up for sentencing. He was charged with one count of failure to appear, to which he subsequently entered a no contest plea (case No. CM019498) in exchange for the dismissal of an enhancement for committing an offense while released on one’s own recognizance.

At sentencing for both cases, the trial court imposed the upper term of three years on the bad check conviction and imposed certain fines and fees. These were: a $20 security surcharge and a $35 theft fine. On appeal, defendant contends the court erred in imposing each of these three components of his sentence. Only the final contention has merit. We shall strike the theft fine imposed pursuant to Penal Code section 1202.5 and otherwise affirm the judgment. DISCUSSION

I

Blakely Violation

Relying on Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], defendant contends the trial court violated his right to have a jury determine, beyond a reasonable doubt, the aggravating factors it used in imposing the upper term. Defendant recognizes that the California Supreme Court rejected his Blakely contention in People v. Black (2005) 35 Cal.4th 1238, 1244, 1262, but states he is making the argument to preserve the issue for federal review.^[1] Pursuant to Black, we

reject the contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

However, there is another reason to affirm the upper term sentence. The United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] a prior conviction may always be used to enhance a prison sentence. (Id. at p. 490 [147 L.Ed.2d at p. 455].) This ruling remains valid after Blakely. (See United States v. Booker (2005) 543 U.S. 220, 230-231 [160 L.Ed.2d 621, 641-642].)

One of the reasons the trial court gave for imposing the upper term is defendant’s prior criminal record. (Cal. Rules of Court, rule 4.421(b)(2).) The trial court noted prior to imposing the upper term that defendant has a “past history . . . including violations for burglary as a juvenile, then he starts his adult career with writing bad checks, stealing, going to prison. Then we have this offense where there are multiple victims, a huge amount of monetary loss.” In imposing the upper term, the court opined that “the factors in aggravation far outweigh any circumstances in mitigation: Multiple victims, huge losses, history of crime, multiple violations of parole and probation.” (Italics added.) We construe the court’s comments to reflect its opinion that the upper term was warranted, in part, because defendant had numerous prior convictions. Use of this factor did not violate Blakely, and, because one valid factor in aggravation is sufficient to expose defendant to the upper term (People v. Cruz (1995) 38 Cal.App.4th 427, 433), defendant’s sentence did not violate the rule of Apprendi and Blakely.

II

The Court Security Fee

We next consider defendant’s challenge to the $20 court security fee imposed pursuant to Penal Code section 1465.8, subdivision (a)(1), which provides in pertinent part: “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 . . . .”

This statute was enacted on August 2, 2003, and became effective on August 17, 2003. (Stats. 2003, ch. 159, § 25.) Defendant committed the bad check offenses in 2000 and entered a no contest plea to that charge in March 2003. He committed the offense of unlawfully failing to appear on May 28, 2003, and pled no contest to that charge on October 25, 2005. He was sentenced in both cases in December 2005.

Defendant contends on appeal that because he committed all offenses before the effective date of Penal Code section 1465.8, the imposition of the $20 court security fee pursuant to that statute violated Penal Code section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” As his sentencing encompassed both cases, we ask whether imposition of the fee was proper in either case and, if so, shall uphold its imposition. Penal Code section 3 “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.)

Two recent decisions have 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 Penal Code section 1465.8 to apply retroactively].)

We agree with the reasoning in Alford that Penal Code section 1465.8 may be applied retroactively: the enactment of Penal Code 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. Accordingly, we find no error in the imposition of this fine.

III

The Theft Fine

Finally, defendant contends the $35 fine (theft fine plus penalty assessments) imposed pursuant to section 1202.5 is improper because he did not enter a plea to any of that section’s enumerated offenses. He is correct.

Penal Code section 1202.5 authorizes a $10 fine for local crime prevention programs where a defendant is convicted of enumerated theft-related offenses. (People v. Clark (1992) 7 Cal.App.4th 1041, 1048, fn. 2.) Penal Code section 1202.5, subdivision (a), provides in material part: “In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed.”

The fine is unauthorized because defendant was convicted of violation of Penal Code section 476a, subdivision (a), which is not one of the enumerated offenses.

DISPOSITION

The judgment is modified to strike the fine imposed pursuant to Penal Code section 1202.5; in all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

MORRISON , J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

^[1] We note, however, that a petition for certiorari is pending in People v. Black, supra, 35 Cal.4th 1238, and the United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v. California (2006) 126 S.Ct. 1329, ___ U.S. ___ [164 L.Ed.2d 47], which addresses a similar issue (and is set for argument on October 11, 2006).