Opinion
No. C049554.
February 23, 2007. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, III, IV, V.
Appeal from the Superior Court of Sacramento County, No. 03F00833, Richard H. Gilmour, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson, Jesse Witt and Mark A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant agreed to participate as a load car driver in a large-scale cocaine trafficking conspiracy. Convicted of conspiracy to transport cocaine between noncontiguous counties, conspiracy to use a minor to transport cocaine, and possessing a false compartment and sentenced to 26 years in state prison, defendant appeals. He contends the evidence was insufficient to sustain a true finding on the allegation the cocaine weighed more than 40 kilograms (which true finding accounted for 20 years of his state prison term) and to sustain his conviction for possessing a false compartment. We find merit in these contentions. We also find merit in defendant's contention the trial court improperly imposed a laboratory analysis fee but find no merit in the rest of defendant's contentions. We therefore reverse as to the weight enhancement and the false compartment conviction and remand for resentencing.
PROCEDURE
Defendant was indicted along with 14 codefendants. Only three of the numerous counts applied to defendant: count one, conspiracy to transport cocaine between two noncontiguous counties (Pen. Code, § 182, subd. (a)(1) (conspiracy); Health Saf. Code, § 11352, subd. (b)); count two, conspiracy to use a minor to transport cocaine (Pen. Code, § 182, subd. (a)(1); Health Saf. Code, § 11353, subd. (b)); and count twelve, possession of a false compartment with intent to conceal cocaine (Health Saf. Code, § 11366.8, subd. (a)). In connection with count one, the indictment alleged that the weight of the cocaine exceeded 40 kilograms (Health Saf. Code, § 11370.4, subd. (a)(5)); defendant was substantially involved in the planning, direction, execution or financing of the underlying offense (Health Saf. Code, § 11370.4, subd. (a)); a principal was armed during the commission of the offense (Pen. Code, § 12022, subd. (a)(1)); and defendant took advantage of a position of trust in committing the crime (Cal. Rules of Court, rule 4.421(a)(11)).
Defendant was tried along with three other defendants. He had a separate jury, however, because the prosecution introduced his statement against him. The jury found defendant guilty as charged, except that it found not true the allegation that a principal was armed during commission of the offense.
The trial court sentenced defendant to six years for count one with a consecutive 20-year term for the weight enhancement. The court imposed the middle terms for counts two and twelve, but stayed those terms pursuant to Penal Code section 654. The total term imposed was 26 years in state prison.
FACTS
Antonio Villasenor, with others, including Jesse Vasquez and Jason Tolliver, ran a large-scale operation obtaining, transporting, and selling methamphetamine and cocaine. Defendant became involved in the organization at a low level; he was a load car driver.
In March 2002, Vasquez asked defendant to drive a vehicle to Texas. Vasquez would pay $4,000. Defendant drove the vehicle to McAllen, Texas, and, on April 1, 2002, got a room at the Microtel. Vasquez met defendant there, took the vehicle for one night, then returned it to defendant the following day. Defendant drove the vehicle back to Sacramento and called Vasquez's phone number. Villasenor answered the phone. Villasenor went to defendant's residence and took the vehicle. Vasquez went to defendant's residence later that evening and paid defendant $4,000. Because of the amount of money he was paid, defendant suspected he was transporting marijuana.
On April 8, 2002, Larry Kindle installed a hidden compartment in a white Chrysler Concorde. A few weeks after defendant's first trip to Texas, Vasquez again asked defendant to drive to Texas. This time, he asked defendant if defendant had a small child he could take with him. Defendant replied that he had a son in Riverside. Vasquez encouraged defendant to take his son. Defendant contacted his ex-wife and arranged to take his son on a road trip. He drove the Concorde to Riverside to get his son, then drove to Texas. Again in McAllen, defendant got a room at the Microtel and waited for Vasquez.
Vasquez never came to the motel. After defendant had been at the motel for more than a week, he began having problems with his ex-wife, who wanted him to bring the child back. She eventually went to McAllen to take the child home. By telephone, Vasquez offered defendant's ex-wife $500 if she would travel back to California with defendant. Defendant told her Vasquez had offered him $5,000 to drive the Concorde back to Sacramento. The ex-wife took the child and went home by bus. About three days later, defendant got tired of waiting and began driving back to Sacramento. He called Vasquez, who promised him a bonus if he returned to McAllen. Back in McAllen, defendant dropped the Concorde off at a Kentucky Fried Chicken restaurant, according to Vasquez's instructions.
Three days after defendant dropped off the Concorde, Vasquez told defendant to meet two men. The two men, driving the Concorde, met defendant and went to a Western Union office to get $2,000 Vasquez had wired to defendant. They spent the day driving around and shopping.
The next day the two men picked up defendant at the motel and offered him $14,000 to retrieve a car that they claimed belonged to them. They went to a house that they also claimed belonged to them. Defendant went to the front door, which was locked, and tried to kick it in. He was unsuccessful. The men took defendant to a store and they bought tools to break in. Back at the house, defendant was about to jump over the fence into the backyard when he saw a man on the porch. He dropped the tools and fled back to the car. The men took him back to the motel.
Defendant contacted Vasquez and told him he thought he was getting "caught up." Defendant called his girlfriend in Sacramento, and she wired him money for a bus ticket. He took a bus to Phoenix, where defendant again contacted Vasquez, who paid for defendant to fly back to Sacramento. Vasquez picked him up at the airport and, on the way home, told defendant he was still going to pay defendant $4,000 for his trouble. Vasquez never paid. He gave defendant's girlfriend a vehicle, though without keys or title.
DISCUSSION I Weight Enhancement
See footnote, ante, page 1231.
Pursuant to Health and Safety Code section 11370.4, subdivision (a)(5), a sentencing court must impose an additional term of 20 years on any person convicted of conspiracy to transport cocaine between two noncontiguous counties if the weight of the cocaine exceeds 40 kilograms. Defendant asserts he cannot be held criminally responsible for the weight enhancement associated with conspiracy to transport cocaine, as charged in count one of the indictment, because there is no evidence the conspirators possessed the requisite amount of cocaine before he withdrew from the conspiracy. We agree. On May 2, 2002, defendant backed out of the plan to transport cocaine from Texas to California. He left the Concorde in McAllen and took a bus to Phoenix. He contacted Vasquez, and Vasquez paid for a ticket for defendant to fly home. Two weeks later, on May 16, 2002, officers stopped the Concorde in San Antonio, Texas, and found 48.872 kilograms of cocaine stowed in the hidden compartment. Health and Safety Code section 11370.4, subdivision (a)(5) provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section . . . 11352 with respect to a substance containing . . . cocaine . . . shall receive an additional term as follows: [¶] . . . [¶] (5) Where the substance exceeds 40 kilograms by weight, the person shall receive an additional term of 20 years." Subdivision (a) continues: "The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense." When the Legislature amended this statute to provide for weight enhancements related to conspiracy, the report of the Senate Judiciary Committee stated: "`The purpose of this bill is to extend sentence enhancements to large narcotics traffickers who do not personally handle the narcotics but who are often prosecuted for conspiracy.'" ( People v. Salcedo (1994) 30 Cal.App.4th 209, 217.) Here, defendant was not a leader of the conspiracy who was trying to get others to handle the narcotics. Instead, he was a load car driver hired to do the actual transportation of the narcotics, but who withdrew before doing so. "`"Once the defendant's participation in the conspiracy is shown, it will be presumed to continue unless he is able to prove, as a matter of defense, that he effectively withdrew from the conspiracy. [Citation.]"'" ( People v. Sconce (1991) 228 Cal.App.3d 693, 701.) "`A member of a conspiracy may effectively withdraw from it so as to exculpate himself from guilt for the future criminal acts of his coconspirators. [Citations.]' [Citation.]" ( Ibid.) Although withdrawal does not vindicate a person of liability for the conspiracy, "withdrawal avoids liability . . . for the target offense, or for any subsequent act committed by a coconspirator in pursuance of the common plan." ( Id. at p. 702.) In determining whether a weight enhancement applies, we must look to the amount of cocaine that was actually in existence with respect to the conspiracy at the time defendant was still participating. (See Valenzuela v. Superior Court (1995) 33 Cal.App.4th 1445, 1453 ( Valenzuela) [weight enhancement applies only to amount of drug in existence or seized].) Defendant reasons that, because he withdrew from the conspiracy on May 2, 2002, when he returned home from Texas and informed Vasquez he would no longer be involved, he is not subject to the weight enhancement because the evidence shows that the coconspirators possessed the cocaine only after defendant withdrew. In fact, it was two weeks after defendant's withdrawal that officers found the coconspirators in possession of the cocaine. The Attorney General does not deny that defendant withdrew from the conspiracy on May 2, 2002. Instead, he argues that the coconspirators possessed more than 40 kilograms of cocaine before defendant withdrew. The evidence the Attorney General cites in support of this argument is testimony concerning where the coconspirators got the cocaine they were transporting from Texas to California. This evidence was introduced in the form of testimony from a detective who was testifying as an expert concerning the hierarchy of the drug organization. During the testimony, the detective referred to a statement of a person named Jim Maddox to federal law enforcement officers. In that statement, Maddox described how several of the members of the conspiracy stole a trailer with more than 200 kilograms of cocaine. The testifying detective used this information to identify those first involved in the conspiracy. During this testimony, multiple objections were made concerning hearsay. The trial court admitted the evidence solely as a basis for the detective's expert opinion on the conspiracy's organization and not for the truth of the matter stated. The court admonished the jury accordingly. The only evidence the Attorney General cites to oppose defendant's contention that the evidence was insufficient as to the weight enhancement was therefore not admissible for the truth of the matter stated and, furthermore, was not admitted for the truth of the matter stated. Because there appears to be no evidence that, between April 1 and May 2, 2002, the coconspirators possessed more than 40 kilograms of cocaine, the evidence was insufficient to sustain the true finding on the weight enhancement. The Attorney General argues: "[Defendant's] assumption that the cocaine was not acquired until the day that the load car left McAllen is inconsistent with the evidence at trial and is extremely illogical. It would be senseless to go through all the arrangements and not even have cocaine in existence and in hand until the day the load car left." To the contrary, when the coconspirators obtained the cocaine is speculative at best. Defendant was in Texas for more than a week and was given no cocaine to transport to California. It took two more weeks after defendant left Texas before others undertook the trip. This evidence is insufficient to support an inference that the coconspirators possessed the cocaine before defendant withdrew from the conspiracy. At oral argument, the Attorney General cited People v. Howard (1995) 33 Cal.App.4th 1407 ( Howard), for the proposition that defendant may be held criminally responsible for the weight enhancement even though the cocaine was possessed by the conspiracy only after defendant withdrew. Howard, however, is distinguishable. In that case, the conspirators arranged to purchase seven kilograms (15.4 pounds) of cocaine from undercover police officers. The conspirators arrived at the location designated for the exchange with $168,000 for the purchase. The undercover officer, however, had in his possession only one kilogram (2.2 pounds) of cocaine. ( Id. at p. 1411.) Convicted of conspiracy to purchase cocaine for sale with a special finding that they conspired to purchase more than 10 pounds, pursuant to former Health and Safety Code section 11370.4, subdivision (a)(2), the conspirators appealed. They contended that the evidence did not support the weight enhancement. The Court of Appeal affirmed. "[I]t reasonably can be inferred," concluded the court, "the Legislature intended to target those individuals who do not possess or have physical contact with the controlled substance." ( Id. at p. 1415.) To support this conclusion, the court cited the legislative pronouncements that the law was intended to facilitate punishment of major traffickers who never personally possess the contraband. ( Id. at pp. 1414-1415.) Howard is distinguishable for three reasons. First, although the undercover officer only had one kilogram with him (or near him), he "could have obtained an additional six kilograms of cocaine had he needed it." ( Id. at p. 1412.) Thus, seven kilograms existed at the time of the conspiracy. Second, defendant was not a major trafficker, as were the conspirators in Howard. He was simply a hired load car driver. Therefore, the intent of the Legislature to punish major traffickers does not match defendant's case. And third, as noted above, imposition of the weight enhancement requires a finding that defendant was "substantially involved in the planning, direction, execution, or financing of the underlying offense" (Health Saf. Code, § 11370.4, subd. (a)) — that is, substantial involvement in the transportation of the cocaine. In Howard, the conspirators were substantially involved; purchasing the cocaine to resell was their plan and they were attempting to execute the plan. In this case, however, the nonexistence of the cocaine until two weeks after defendant withdrew establishes defendant's involvement was too remote. Up until his withdrawal, he merely followed the directions of others who were calling the shots. Accordingly, the weight enhancement finding must be reversed. Defendant also argues (1) the trial court instructed the jury improperly with respect to the weight enhancement and (2) the trial court abused its discretion by refusing to strike the weight enhancement. Because we conclude there was insufficient evidence to sustain the weight enhancement, we need not consider these arguments.
During closing argument, the prosecutor did not present to the jury the facts on which the Attorney General now relies (stealing the trailer full of cocaine) as support for a finding that more than 40 kilograms of cocaine were in existence at the time defendant was involved in the conspiracy. Instead, the prosecutor asked the jury to draw inferences — a strategy the Attorney General has abandoned on appeal. The prosecutor acknowledged that defendant withdrew from the conspiracy on May 2, 2002. According to the prosecutor, Villasenor, on April 8, 2002, told someone he was getting "40 more" from the supplier in Texas. The prosecutor also invited the jury to infer that defendant transported cocaine, not marijuana, on his first trip back from Texas. Health and Safety Code section 11370.4, subdivision (a)(5) requires that the weight of the cocaine exceed 40 kilograms. The prosecutor asked the jury to infer that that more than 40 kilograms was in existence with respect to the conspiracy before defendant withdrew because the amount found in the Concorde on May 16, 2002, was almost 49 kilograms. These lines of reasoning are not easy to follow and do not appear to support a reasonable inference that more than 40 kilograms of cocaine existed with respect to the conspiracy before defendant withdrew. Indeed, the prosecutor admitted there was no evidence concerning weight, even if one infers defendant brought back cocaine on his first trip. In any event, the Attorney General has abandoned this basis for supporting the weight enhancement and, because of that abandonment, has not given us citations to the record, which includes thousands of pages of transcript, to support the factual claims the prosecutor made in closing argument.
The prosecutor stated that the reason the Concorde was not sent back to California earlier was that "they [hadn't] hooked up yet with the dope."
II Use of Minor to Transport
At the suggestion of coconspirators, defendant went to Riverside and took his minor son with him to Texas to divert suspicion during defendant's return trip to California with the cocaine. "Every person 18 years of age or over, . . . (b) who hires, employs, or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle any such controlled substance, . . . shall be punished by imprisonment in the state prison for a period of three, six, or nine years." (Health Saf. Code, § 11353.) Convicted of conspiracy to violate this section, defendant asserts the evidence was insufficient. We disagree.Defendant contends that, in context, the word "uses" in this statute, means that the minor " himself undertakes the transportation or other proscribed act instead of the adult." "If the Legislature had intended mere accompaniment to fall within the ambit of the statute," continues defendant, "it certainly would have so provided." Defendant gives no further support for this interpretation. His reasoning is not self-evident. While it is true the Legislature could have been more specific, that is only one consideration in our task, which is to determine the Legislature's intent when it passed this law.
"Familiar canons of statutory construction require that, in construing a statute, a court ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining that intent, we consider the statute read as a whole, harmonizing the various elements by considering each clause and section in the context of the overall statutory framework. [Citations.] We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences. [Citation.]" ( People v. Jenkins (1995) 10 Cal.4th 234, 246 [ 40 Cal.Rptr.2d 903, 893 P.2d 1224].)
Section 11353 was added to the Health and Safety Code in 1972. Although amended several times since, the statute already had the "uses" language in 1973. (Stats. 1973, ch. 1078, § 5, p. 2174.) This section was a reenactment of similar statutes such as Health and Safety Code former section 11714, enacted in 1939 and repealed in 1959, which always included the "uses" language. (Stats. 1939, ch. 60, p. 772; Stats. 1959, ch. 1112, § 1, p. 3193.) Yet there is no reported case concerning the issue presented here — whether "uses" in Health and Safety Code section 11353 included using a minor, not to actually transport contraband, but to divert suspicion and avoid detection by law enforcement.
"The conduct denounced as a crime by [former] section 11714 of the Health and Safety Code is the use of a minor in the unlawful transportation of a narcotic. The essence of the offense is its tendency to debauch or corrupt minors. [Citation.] The use of a minor to transport narcotics necessarily contributes to the delinquency of that minor. [Citations.]" ( People v. De Paula (1954) 43 Cal.2d 643, 647 [ 276 P.2d 600].) The apparent intent of Health and Safety Code section 11353 is to protect minors from the dangers and corruption of the narcotics trade. While it could be argued that the minor would have been oblivious to the criminal circumstances of his road trip with his father, there can be no argument that it would have endangered the minor. The drug trade is fraught with danger. (See Anaya v. Turk (1984) 151 Cal.App.3d 1092, 1103 [ 199 Cal.Rptr. 187] [drug trafficking a dangerous activity].) The Legislature's intent to protect minors requires a broad interpretation of the statute to accomplish the Legislature's design. (See In re John S. (2001) 88 Cal.App.4th 1140, 1145 [ 106 Cal.Rptr.2d 476] [broad interpretation of different statute to achieve legislative purpose to protect minors from sex offenders].)
Here, there can be no doubt that taking defendant's minor son with him as defendant transported cocaine would have endangered his son. Furthermore, under the language of the statute, defendant conspired to "use" his son to transport cocaine because his son's presence, in the estimation of defendant and his coconspirators, would have enabled defendant to avoid detection. Therefore, defendant conspired to violate Health and Safety Code section 11353.
Defendant cites two cases in which the minor actually transported the contraband, People v. Krupa (1944) 64 Cal.App.2d 592 [ 149 P.2d 416] and People v. De Paula, supra, 43 Cal.2d 643, and contends that "under" those cases "a defendant may be found guilty only where the minor himself or herself personally transports the contraband." This argument is illogical. Establishing that a defendant is guilty if the minor actually transported the contraband does not establish that the defendant is not guilty if the minor did not actually transport the contraband. Furthermore, the cited cases did not discuss whether the minor had to be the actual transporter. A case is not authority for a proposition not considered. ( Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343 [ 14 Cal.Rptr.3d 857, 92 P.3d 350].)
Defendant's contention that the evidence was insufficient to sustain his conviction for conspiracy to violate Health and Safety Code section 11353 is without merit.
III Use of a False Compartment
See footnote, ante, page 1231.
Defendant was convicted of possession of a false compartment with intent to transport cocaine within the compartment, a violation of Health and Safety Code section 11366.8, subdivision (a). On appeal, defendant contends there was insufficient evidence to convict him of this crime because there was no evidence he knew the Concorde contained a false compartment. We agree. Health and Safety Code section 11366.8, subdivision (a) provides: "Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment in a county jail for a term of imprisonment not to exceed one year or in the state prison." This section defines a specific intent crime. ( People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1415-1416.) A specific intent to store, conceal, smuggle, or transport cocaine within the false compartment requires knowledge of the existence of the false compartment. Here, there was evidence defendant intended to transport contraband in the Concorde and there was evidence the Concorde contained a false compartment, but there was no evidence defendant knew about the false compartment or intended to transport the cocaine in the false compartment. The false compartment was installed in the Concorde not long before he drove it to Texas on his second trip. (There is no evidence concerning what car defendant drove to Texas on his first trip.) Although defendant had control over the Concorde during that time, there is no evidence the cocaine had been loaded or that defendant knew where it would be loaded. The Attorney General attempts to justify an inference that defendant knew about the false compartment in the Concorde. The Attorney General cites evidence that defendant had previously driven a vehicle to Texas and back to California and declares it reasonable to infer that a load car with a false compartment was used in that trip. In defendant's statement, he said he "suspected" he had transported marijuana on his first trip. Also, the Attorney General cites evidence that Villasenor did not check the vehicle for the presence of the contraband after defendant's first trip. He simply took the vehicle and left. Although the Attorney General does not say how this evidence relates to whether defendant knew the Concorde, used during the second trip, had a false compartment, it appears the Attorney General would have us draw an inference that the first vehicle contained a false compartment and, from that inference, draw another inference that defendant knew the Concorde contained a false compartment. This connection is too attenuated to support a reasonable inference defendant knew there was a false compartment in the Concorde. The Attorney General offers several additional reasons it is reasonable to infer defendant knew about the false compartment: (1) the compartment would make it easier for the other conspirators to trust defendant, (2) a reasonable person would check the vehicle to see if there was a false compartment in case he was stopped by law enforcement, (3) there was no evidence defendant did not open the trunk of the Concorde, (4) the coconspirators had to take the Concorde for a period of time to put the cocaine in it, and (5) load cars are common in large-scale drug trafficking. This argument is unpersuasive. "A reasonable inference . . . `may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.'" ( People v. Morris (1988) 46 Cal.3d 1, 21.) The evidence cited by the Attorney General does not lead to a reasonable inference that defendant knew about the false compartment in the Concorde. At best, it supports the inference defendant may have known about it. Accordingly, we must reverse defendant's conviction for violation of Health and Safety Code section 11366.8, subdivision (a).
IV Laboratory Analysis Fee
Health and Safety Code section 11372.5, subdivision (a) requires the trial court to impose a $50 criminal laboratory analysis fee when a defendant is convicted of any one of several specified crimes. The trial court imposed the $50 fee. Although defendant was convicted of conspiracy to commit one of the crimes (Health Saf. Code, § 11352) listed in Health and Safety Code section 11372.5, subdivision (a), he was not convicted of the target offense. Defendant contends, and the Attorney General agrees, the fee was improperly imposed. We also conclude the court should not have imposed the fee. ( See People v. Vega (2005) 130 Cal.App.4th 183, 193-195 [fee not imposed for conspiracy to commit listed crimes].)
Health and Safety Code section 11372.5, subdivision (a), provides, in part: "Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the Business and Professions Code shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. . . ."
Vfn_ Court Security Fee
The trial court also imposed a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1). Defendant asserts the fee violates the ex post facto provisions of the state and federal Constitutions because the Penal Code section 1465.8 took effect in August 2003, more than a year after defendant committed the crimes. We disagree. The fee does not violate ex post facto provisions because it is a nonpunitive civil assessment. ( People v. Wallace (2004) 120 Cal.App.4th 867, 878.) Defendant contends People v. Wallace was wrongly decided, basing his argument mainly on the concurring opinion in that case, which expressed the belief that the fee was punishment but concluded that previous authority compelled the result. ( Id. at p. 879.) Since previous authority compelled the result in People v. Wallace, we need not reconsider the result. Defendant also contends that imposition of the court security fee violated Penal Code section 3, which states that no part of the Penal Code "is retroactive, unless expressly so declared." Application of Penal Code section 1465.8 in this case, however, is not retroactive because the fee is "imposed on every conviction for a criminal offense," which conviction in this case happened after the effective date of the statute. The fee is not imposed as punishment for the crime. (See People v. Bailey (2002) 101 Cal.App.4th 238, 243 [finding application of gang registration statute not retroactive even though enacted after defendant's crime].) The trial court properly imposed the court security fee.
Penal Code section 1465.8, subdivision (a)(1) states: "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. . . ."
DISPOSITION
The true finding on the weight enhancement associated with count one and the conviction on count twelve are reversed. In all other respects, the judgment of conviction is affirmed. The sentence is vacated and the case remanded for resentencing consistent with this opinion.
Sims, J., concurred.
I concur in the judgment and opinion except as to part II of the Discussion, as to which I dissent. I would reverse the judgment as to count two, the use of a minor to transport cocaine.
The majority opinion has mislaid its grammar book. It pays no attention to the language of Health and Safety Code section 11353. "[T]o unlawfully transport" a controlled substance means to "carry" as the succeeding term says. (§ 11353.) It does not say "in" the transportation of or in the carrying of a controlled substance. Moreover, the operative terms to "hire, employ, or use" a minor to transport drugs patently mean to employ or use them to transport drugs. (§ 11353.) It does no good to resort to the intention of the Legislature to levitate the meaning when the intention is to be derived from the language of the statute. As the majority opinion notes, "there is no reported case concerning the issue presented here. . . ." (Maj. opn., ante, at p. 1237.) The reason is obvious.
Appellant's petition for review by the Supreme Court was denied May 23, 2007, S151178.