Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 137823
Margulies, J.
On remand following a successful appeal from his 2001 second degree murder conviction, defendant pleaded no contest to voluntary manslaughter in 2006 and received a sentence of 16 years as part of a negotiated disposition. At sentencing, the trial court imposed a restitution fine of $3,200 and assessed a court security fee of $20 on defendant. Defendant contends that the trial court erred by (1) increasing the restitution fine over the $200 amount that had been imposed after his 2001 conviction, and (2) assessing a court security fee under a statute enacted after defendant committed his offense. We agree that the restitution fine was improperly increased, and will modify the judgment accordingly. We find no error in the application of the court security fee statute to defendant’s 2006 conviction.
I. BACKGROUND
In 2001, a jury found defendant guilty of second degree murder (Pen. Code, § 187) and automobile burglary (§ 459) and found that he personally used a gun in connection with both counts (§§ 12022.5, 12022.53, subd. (d)). The court sentenced defendant to a term of 40 years to life, consisting of a 15-years-to-life sentence for second degree murder and a 25-years-to-life enhancement for firearm use resulting in injury or death (§ 12022.53, subd. (d)). The court also imposed a restitution fine of $200 under section 1202.4, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant’s murder conviction was reversed and the judgment was otherwise affirmed by People v. Randle (2005) 35 Cal.4th 987. The case was remanded to the Alameda County Superior Court for further proceedings. On February 3, 2006, defendant entered a negotiated plea of no contest to voluntary manslaughter (§ 192, subd. (a)) and admitted the firearm use allegation (§ 12022.5, subd. (a)). The plea bargain provided for an aggregate prison term of 16 years, consisting of the middle term of six years for voluntary manslaughter and a 10-year upper term enhancement for firearm use.
On April 21, 2006, the court sentenced defendant to the agreed 16-year prison term. Over defendant’s objection, the court imposed a restitution fine of $3,200, and imposed and stayed a parole revocation fine in the same amount (§ 1202.45). The court also imposed a “court security” fee of $20 (§ 1465.8).
Defendant timely appealed from the sentence.
II. DISCUSSION
Defendant contends that: (1) the original restitution fine imposed of $200 was still in effect on remand and the trial court could not increase it to $3,200 following his successful appeal; and (2) the court could not retroactively apply the court “security fee” law enacted in 2003 to an offense committed in 1999.
A. Restitution Fine
The People properly concede that the trial court could not raise defendant’s original restitution fine from $200 to $3,200 when the case came back following his successful appeal. People v. Hanson (2000) 23 Cal.4th 355 held specifically that a trial court may not increase a restitution fine on remand for resentencing following a defendant’s partially successful appeal. (Id. at p. 363.) Allowing such an increase when the case has been remanded on issues unrelated to the fine would penalize the defendant for exercising his right to appeal. (Ibid.) Accordingly, we will strike the $3,200 fine imposed, as well as the stayed parole revocation fine, and direct the trial court to amend the abstract of judgment to restore the original restitution fine of $200 and to reduce the parole revocation fine to the same amount, as required by section 1202.45.
B. Court Security Fee
The issue of whether the court security fee may properly be imposed in connection with convictions for offenses committed before its effective date is now before the California Supreme Court in the case of People v. Alford, review granted May 10, 2006, S142508.
Section 1465.8 provides in relevant part as follows: “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.” Section 1465.8 was enacted and became effective in 2003. Defendant claims that the court security fee must be stricken as both an unconstitutional ex post facto law and as being violative of the prohibition in section 3 of the Penal Code against “ ‘retroactive application of newly enacted law.’ ”
1. Ex Post Facto Analysis
“The United States Constitution, article I, sections 9 and 10 and the California Constitution, article I, section 9 prohibit the passage of ex post facto laws.” (In re Evans (1996) 49 Cal.App.4th 1263, 1268.) “[T]he ex post facto clauses of the state and federal Constitutions are ‘aimed at laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” ’ [Citation.]” (People v. Grant (1999) 20 Cal.4th 150, 158.) “ ‘An ex post facto law is a retrospective statute applying to crimes committed before its enactment, and substantially injuring the accused. . . .’ [Citation.] If a crime is committed before the ‘effective date’ of a statute and the statute retroactively increases the punishment for the crime or eliminates a defense, the statute violates the ex post facto clauses.” (People v. Jenkins (1995) 35 Cal.App.4th 669, 672.)
“Article I, section 10, clause 1 of the federal Constitution states in pertinent part: ‘No state shall . . . pass any . . . ex post facto law . . . .’ Article I, section 9 of the California Constitution similarly states that an ‘ex post facto law . . . may not be passed.’ The California provision is analyzed in the same manner as its federal counterpart.” (People v. Castellanos (1999) 21 Cal.4th 785, 790.)
“The ex post facto clause does not prohibit all increased burdens; it only prohibits more burdensome punishment.” (People v. Acuna (2000) 77 Cal.App.4th 1056, 1059, italics added.) “[W]hether a retroactive criminal statute is deemed procedural or substantive, it contravenes the ex post facto clause only if it redefines criminal conduct or aggravates punishment.” (People v. Frazer (1999) 21 Cal.4th 737, 757, citing Collins v. Youngblood (1990) 497 U.S. 37, 45–46.)
In People v. Wallace (2004) 120 Cal.App.4th 867, 876 (Wallace), the court reviewed the legislative history of section 1465.8, and determined that “the Legislature imposed the $20 fee for a nonpunitive purpose.” The court observed that the express legislative purpose of section 1465.8 is nonpunitive: “ ‘[t]o ensure and maintain adequate funding for court security . . . .’ The maintenance of ‘adequate funding for court security’ purposes is unambiguously a nonpunitive objective.” (Wallace, at p. 875.) The legislation was part of a trial court funding measure in Assembly Bill No. 1759. (Wallace, at p. 875.) The assessment is labeled a “fee” throughout the statute, as opposed to a “penalty” or “fine” (§ 1465.8, subd. (b)), and it does not vary based on the severity of the crime committed. (Wallace, at pp. 875–876.) As discussed in Wallace, the court security fee is collected from civil litigants as well as criminal defendants, and is dependent upon trial court funding levels, which is also inconsistent with a punitive purpose. (Id. at p. 876.)
The Wallace court also considered “whether section 1465.8, subdivision (a)(1) is ‘ “ ‘so punitive either in purpose [or] effect’ ” ’ as to negate the Legislature’s intention that the $20 fee be [treated as] a civil disability. [Citations.]” (Wallace, supra, 120 Cal.App.4th at p. 876.) While recognizing that the fee arose only from a conviction in criminal cases, the court found several considerations that militated against a finding of punishment: A court security fee can logically be viewed as a nonpunitive assessment for the use of court facilities, which is designed to make them safer, particularly since the same fee is imposed in limited and unlimited civil and probate cases as well; the $20 fee is not so great an amount as to be punitive either in purpose or effect; imposition of the fee does not serve any of the traditionally recognized purposes of punishment, including deterrence or retribution; instead, like a user fee, it bears a rational relation to the nonpunitive purpose of promoting court security; finally, the fee is minimal rather than excessive, and furthers the purpose of ensuring appropriate funding levels for court operations and security. (Id. at pp. 877–878.) On all these grounds, the Wallace court found that the security fee could not be considered so punitive in purpose or effect as to override the Legislature’s express treatment of it as a nonpunitive measure. (Id. at p. 878.)
We agree with the court’s reasoning in Wallace. The application of section 1465.8 to a defendant who committed his crime before its effective date does not offend ex post facto principles. (Wallace, supra, 120 Cal.App.4th at pp. 878–879; see also People v. Schoeb (2005) 132 Cal.App.4th 861, 866 [following Wallace on this issue].)
2. Retroactivity Under Section 3
“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.” (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.)
“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.) “This is a pure question of law to which we apply our independent review.” (In re Chavez, supra, 114 Cal.App.4th at p. 994.)
By its express terms, the triggering event for the application of section 1465.8, subdivision (a)(1) is a “conviction for a criminal offense.” In People v. Bailey (2002) 101 Cal.App.4th 238, the Court of Appeal held that a statute authorizing a gang registration requirement as a condition of probation could be applied upon a defendant’s conviction for an offense committed before the statute’s enactment. (Id. at pp. 242–243.) Although the statute contained no express declaration of retroactivity, by its terms it applied “ ‘to any person convicted in a criminal court.’ ” (Id. at p. 243, italics added.) The court concluded that “[b]ecause defendant was convicted after the effective date of [the statute], the law applies to him.” (Ibid.) Since defendant’s conviction for voluntary manslaughter came after the effective date of section 1465.8, the statute was not applied retroactively to him.
As a matter of fundamental fairness, statutes that “substantially change[] the legal effect of past events” are deemed to operate retroactively. (Plotkin v. Sajahtera, Inc. (2003) 106 Cal.App.4th 953, 960.) “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.) Thus, there is no question that section 3 applies to statutes that increase the punishment for particular crimes. (In re Harper (1979) 96 Cal.App.3d 138, 141.)
But as discussed earlier, the purpose and impact of section 1465.8 are nonpunitive—to promote and fund court security. (Wallace, supra, 120 Cal.App.4th at pp. 877–878.) The court security fee does not constitute punishment for past crimes, and the imposition of a $20 fee is not a substantial change in the legal effect of a criminal act. “The point of the rule disfavoring retroactivity is to avoid the unfairness that attends changing the law after action has been taken in justifiable reliance on the former law. [Citation.] Hence, the characterization of the application of a statute as retroactive depends on the propensity for unfairness.” (Mahon v. Safeco Title Ins. Co. (1988) 199 Cal.App.3d 616, 620–621.) In this case, it cannot seriously be argued that any unfairness flows from the fact that defendant had no notice of the court security fee when he committed the offense for which he was convicted.
In People v. Adames (1997) 54 Cal.App.4th 198, 214, the court held that section 3 does not bar application of the AIDS testing mandate to a defendant under subdivision (e)(6) of section 1202.1 even though his offense was not listed as one for which such testing was required when he committed it. The court concluded that “subjecting a defendant to AIDS testing is not punishment. It is therefore clear that no increase in punishment occurs by requiring appellant to submit to AIDS testing although, when committed, his offense was not one which triggered the AIDS testing requirement. Accordingly, the subject AIDS testing order is not invalid as a retroactive application of section 1202.1.” (Adames, p. 214.)
We reach the same conclusion here. Section 1465.8 did not subject defendant to increased punishment for a past offense, and its application to him following his conviction after the effective date of the statute therefore required no expressdeclaration of retroactivity in section 3.
Further, “[i]n the absence of . . . an express declaration of legislative intent for retroactive application, a court may look to a variety of other factors to determine such legislative intent, such as the context of the legislation, its objective, the evils sought to be remedied, the history of the times and similar legislation, public policy, and/or contemporaneous statutory construction.” (Borden v. Division of Medical Quality (1994) 30 Cal.App.4th 874, 882.) The enactment of section 1465.8 as part of an urgency measure (Assem. Bill No. 1759) to implement the Budget Act of 2003 by imposing a court security fee “on every conviction for a criminal offense,” is indicative of a legislative intent to implement the statute immediately to apply to all pending cases. (Wallace, supra, 120 Cal.App.4th at p. 875.) Such application is also imperative to facilitate the stated objective of the legislation to ensure and maintain adequate funding for court security. The gradual increase in revenues that would result from imposing the fee only on convictions for offenses that occurred after its effective date is inconsistent with the enacting legislation’s urgency clause and with the purpose of the fee to immediately replace general fund allocations to court funding that were being reduced.
At the People’s request we have taken judicial notice of certain documents reflecting the legislative history of Assembly No. Bill 1759, including budget analyses prepared by the Legislative Analyst’s Office and the Assembly Committee on the Budget.
Based on the text, history, purpose, and impact of the law, we conclude that the Legislature intended to apply section 1465.8 to defendant’s case even though the underlying offense preceded its enactment. Imposition of a court security fee upon defendant was not error.
III. DISPOSTION
The judgment is modified to reduce the $3,200 restitution fine imposed to $200, and to reduce the stayed parole revocation fine to the same amount, as required by section 1202.45. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract of judgment to the California Department of Corrections.
We concur: Marchiano, P.J., Swager, J.