P. v. Montgomery

Filed 10/2/06 P. v. Montgomery 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Yuba)

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On March 13, 2002, defendant Monroe Dexter Montgomery entered a no contest plea to possession of methamphetamine occurring on September 22, 2000 (Health & Saf. Code, § 11377, subd. (a)), in exchange for dismissal of the remaining count as well as other pending matters.

On April 10, 2002, the court granted Proposition 36 probation. (Pen. Code, § 1210.1.)

On August 22, 2005, defendant admitted certain allegations of a subsequent petition to revoke probation, his third violation of Proposition 36 probation.

On September 19, 2005, the court sentenced defendant to state prison for the upper term of three years and imposed various fees and fines including a $20 court security fee (Pen. Code, § 1465.8).

Defendant appeals. He did not request a certificate of probable cause. He challenges only the imposition of the court security fee. He argues that the fee was improperly applied retroactively against him. The Attorney General concedes, citing People v. Carmichael (2006) 135 Cal.App.4th 937 at page 941 (Carmichael), which determined that “the last act or event necessary to trigger application of the statute” was the date of defendant’s offense, and People v. Alford (2006) 137 Cal.App.4th 612 at page 624 (Alford), which determined that “the last act or event necessary to trigger application of the statute” was defendant’s conviction.

The Supreme Court has granted review in these two cases (Carmichael, supra, 135 Cal.App.4th 937, review granted May 10, 2006, S141415; Alford, supra, 137 Cal.App.4th 612, review granted May 10, 2006, S142508).

Penal Code section 1465.8 provides: “(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.” (Pen. Code, § 1465.8, subd. (a)(1), italics added.)

Penal Code section 3 provides: “No part of [the Penal Code] is retroactive, unless expressly so declared.” (Pen. Code, § 3.)

Penal Code section 1465.8 was operative on August 17, 2003. (Stats. 2003, ch. 159, § 25, eff. Aug. 2, 2003, operative Aug. 17, 2003.) Section 1465.8 does not state that it is retroactive. Defendant’s offense occurred on September 22, 2000, long before the operative date of the statute. Defendant was convicted when he entered his plea on March 13, 2002, several months before the operative date of the statute. Generally, for purposes of applying the Penal Code, “conviction” means the ascertainment of guilt, not sentencing. (People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033; Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 821; People v. Castello (1998) 65 Cal.App.4th 1242, 1254; People v. Williams (1996) 49 Cal.App.4th 1632, 1637; People v. Rhoads (1990) 221 Cal.App.3d 56.)

Here, defendant’s offense and conviction occurred long before the effective date of the statute. Deciding which event triggers the application of the fee matters not. Both events occurred prior to the operative date of the statute. The statute may not be applied retroactively to defendant. (Pen. Code, § 3.) We accept the Attorney General’s concession that the fee must be stricken.

DISPOSITION

The judgment is modified by striking the $20 court security fee (Pen. Code, § 1465.8). The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

SIMS , Acting P.J.

We concur:

RAYE , J.

MORRISON , J.

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