People v. Martin

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

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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 “[t]o ensure and maintain adequate funding for court security.” (Pen. Code, § 1465.8, subd. (a)(1).)^[3]

In People v. Wallace (2004) 120 Cal.App.4th 867 (Wallace), Division Five of the Court of Appeal, Second Appellate District, held that this minimal fee, imposed for a nonpunitive purpose and without punitive effect, is not subject to the limitations of the ex post facto clause. (Id. at p. 878.)

Defendant claims Wallace “overstepped” the constitutional principle of separation of powers and engaged in “unauthorized statutory construction,” because it relied extensively on inapplicable statutes and “trailer bills,” even though Penal Code section 1465.8 itself “is clear on its face.” Defendant is incorrect.

“The first inquiry . . . is whether the Legislature in imposing the $20 court security fee intended to impose a civil rather than punitive regime.” (Wallace, supra, 120 Cal.App.4th at p. 875; see Smith v. Doe (2003) 538 U.S. 84, 92 [155 L.Ed.2d 164, 176].) The question is whether the $20 fee is punitive, not whether the cases in which it is collected are punitive. Defendant notes that the fee plainly and unambiguously “applies only in criminal cases, and then only upon conviction.” But this does not mean that the fee is punitive or “not civil in nature”; it only means that the underlying matter in which the fee is imposed is punitive. Because Penal Code section 1465.8 does not unambiguously indicate that the fee serves a punitive purpose, the Wallace court properly looked to legislative history in order to discern the purpose of the statutory regime.

Wallace noted that Penal Code section 1465.8 was enacted by Assembly Bill No. 1759, which also imposed new or increased fees for a variety of civil matters. (Wallace, supra, 120 Cal.App.4th at pp. 872-873; Assem. Bill No. 1759, Stats. 2003, ch. 159, § 25.) For example, the legislation imposed a $20 “court security” surcharge on filings in civil actions. (Gov. Code, § 69926.5, subd. (a), added by Stats. 2003, ch. 159, § 19.)

Defendant claims Wallace’s consideration of civil filing fees was “inapt,” because the civil provisions were contained in separate statutory provisions. He notes that Penal Code section 1465.8 contains “no language . . . hinting that it applies in any civil cases.” However, “‘we do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of law of which it is a part so that the whole may be harmonized and retain effectiveness.”’” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253.) Thus, we read section 1465.8 not in isolation, but as part of a scheme to raise revenue in connection with the fiscal 2003-2004 state budget. (Wallace, supra, 120 Cal.App.4th at p. 871.) We agree with Wallace that section 1465.8 was “primarily . . . a budget measure,” not an added measure of punishment for criminal offenders. (Wallace, at pp. 872-873.) For the reasons stated in Wallace, defendant’s ex post facto argument has no merit.^[4]

V

Defendant contends that, even if it does not violate ex post facto principles, the $20 court security fee must be stricken because Penal Code section 1465.8 operates prospectively only. He argues his 1993 conviction of cultivating marijuana predates the “conviction” referred to in the statute. (See fn. 3, ante.) We disagree.

“People v. Rhoads (1990) 221 Cal.App.3d 56, 60, ‘recognize[d] that “the term ‘conviction’ has no fixed definition and has been interpreted by the courts of this state to have various meanings, depending upon the context in which the word is used.”’ [Citation.] [¶] Similarly, People v. Shirley (1993) 18 Cal.App.4th 40, [46] observed: ‘An ambiguous term, “convicted” has been given several meanings. “As appears in the case law, the terms ‘convicted’ or ‘conviction’ do not have a uniform or unambiguous meaning in California. Sometimes they are used in a narrow sense signifying a verdict or guilty plea, some other times they are given a broader scope so as to include both the jury verdict (or guilty plea) and the judgment pronounced thereon.” (Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073-1074.)’” (In re DeLong (2001) 93 Cal.App.4th 562, 568.)

Again, Penal Code section 1465.8 provides in relevant part: “(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.”

The statute’s purpose of ensuring and maintaining adequate funding for court security is best effected if the term “conviction” includes both the jury verdict (or guilty plea) and the judgment pronounced thereon (In re DeLong, supra, 93 Cal.App.4th at p. 568), so that if either the trial (or plea) or the pronouncement of judgment thereon occurs after the statute’s effective date, the fee is properly imposed.

Although defendant entered his plea before the enactment of Penal Code section 1465.8, his misconduct in failing to appear for sentencing required him to further “use” the courts after the statute was enacted, for pronouncement of a judgment that should have been pronounced years ago. Defendant presumably received the benefit of enhanced court security during that appearance, and no reason appears to exempt him from paying for it. There was no error.

DISPOSITION

The judgment is modified to impose a $100 drug program fee (Health & Saf. Code, § 11372.7), a $100 state penalty assessment (Pen. Code, § 1464), and a $70 county penalty assessment (Gov. Code, § 76000). All state surcharges on fines (Pen. Code, § 1465.7), all state court facilities construction penalties (Gov. Code, § 70372), and the parole revocation fine (Pen. Code, § 1202.45), are stricken. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

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^[1] In both a letter to the court and at sentencing, defendant admitted he had avoided sentencing for over a decade, writing: “I have probated myself for the last twelve years.”

^[2] The clerk’s minutes and the abstract of judgment list only the gross amount of the fee. In People v. High (2004) 119 Cal.App.4th 1192 (High), we disapproved this practice, stating, “All fines and fees must be set forth in the abstract of judgment.” (Id. at p. 1200.)

^[3] 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 [Penal Code] 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 [Penal Code] 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] Defendant further faults Wallace for likening Penal Code section 1465.8 to a user fee, even though the statute applies to traffic infractions that often require no court appearance. Defendant’s myopic argument presumes that the Legislature’s concern with court security is confined to litigants, who appear only when necessary, and does not extend to court personnel, who must be present to conduct court business for all “users,” even those whose appearance is not required.