Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA269758. Robert J. Perry, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Travell Addison (defendant) of first degree murder (Pen. Code, § 187) (count 1) and burglary (§ 459) (count 2). With respect to count 1, the jury found true the special-circumstance allegation that the murder was committed while defendant was engaged in the commission of a burglary within the meaning of section 190.2, subdivision (a)(17). With respect to both counts the jury found true the allegations that a principal was armed with a handgun in the commission of the offense (§ 12022, subd. (a)(1)), that a principal personally and intentionally discharged a handgun proximately causing great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)), and that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to life without the possibility of parole (LWOP) for the murder in count 1 and stayed the burglary sentence in count 2 pursuant to section 654. The trial court also imposed a consecutive sentence of 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1). The court stayed the firearm-use enhancement pursuant to section 12022, subdivision (a)(1) and the gang enhancement.
Defendant appeals on the grounds that: (1) insufficient evidence supported his LWOP sentence under the felony-murder special circumstance, since the jury failed to find that defendant, as an aider and abettor, acted with an intent to kill; (2) insufficient evidence supported the jury’s finding under section 186.22, subdivision (b)(1) that defendant committed the charged offenses with the specific intent to promote, further, or assist the Six Deuce Brims street gang; (3) the trial court erred by staying rather than striking the lesser firearm-use enhancement and the gang enhancement; and (4) the trial court’s imposition of a court security fee under section 1465.8 violated the constitutional prohibition against ex post facto laws and the statutory prohibition against retroactive application of criminal statutes.
FACTS
I. Prosecution Evidence
In the early evening of December 26, 2001, Renee Warren (Warren) heard shots and the voice of her neighbor, Dedrick Egger (Egger), calling for help. Egger was the owner and manager of an apartment building next door to Warren, and he lived in one of the units in his building. Warren called the police and ran outside to Egger.
Warren saw defendant and Michael Finley (Finley) walking away from Egger’s building together. Warren knew defendant because her son, Steven Collier (Collier), and defendant were in the same gang, the Six Deuce Brims. Defendant and Finley were carrying computer items. Warren asked defendant where her son was. Defendant told her that Collier had gone somewhere with Baby Deuce. Defendant and Finley walked down the alley next to Egger’s building and then crossed the street.
Warren stated that her son was incarcerated for the same case for which defendant was being tried.
Officer Ruben Lopez of the Los Angeles Police Department arrived at the scene and found that Egger was still alive. Officer Lopez asked Egger if he knew who shot him, and Egger replied that it was a male Black and that two others were involved. Egger said that the shooter drove a white Chevrolet Caprice. Egger and the shooter had had conflicts over loitering. Officer Lopez saw that Egger’s apartment had been ransacked, and there was gang graffiti on a white chair and other furniture inside Egger’s home. Officer Lopez knew that the crime scene was in the territory of the Six Deuce Brims, a subgroup of the Bloods. While he was at the scene, Officer Lopez noticed a white Caprice with three occupants pass by slowly three times, and he noted the license plate number.
Renaldo Madrid (Madrid), Egger’s father, arrived and found that the security door had been torn off the entrance to Egger’s apartment and the inside had been ransacked. Egger’s computer, television, and clothing were gone. Madrid knew that Egger had moved the white chair inside from the patio to prevent loiterers from using it.
Egger died of his injuries on December 27, 2001. The coroner testified that Egger’s death was officially caused by multiple gunshot wounds. Several of his six gunshot wounds were potentially fatal.
Christopher Clark (Clark) and defendant, whose moniker was “Wolfie,” were in the same gang. Clark’s moniker was “Deuce.” Clark admitted that he helped break into Egger’s apartment on the day of the shooting while Egger was away. Clark, defendant, Finley and a friend named “N Bane” were together before the burglary. Clark was not sure if it was Finley or defendant who asked Clark and N Bane to help them do a burglary. Finley showed the younger men a gun, and he and defendant called the younger men “bitches.” Clark at first did not want to participate, but defendant said, “I told you, come on fool, y’all better come on.” Defendant pried open Egger’s door and they entered. Finley stayed outside as a lookout. Clark took a television from the apartment. At trial, Clark identified the white chair and said that names written on the chair corresponded to members of the Six Deuce Brims gang. Clark heard Finley say that Eggers was coming back. Clark dumped the property he was carrying and fled. While running away he heard five shots. Clark acknowledged that he had been acquitted of burglary and murder charges in the Egger case.
Detective George Diaz of the Los Angeles Police Department interviewed Clark approximately one year after the shooting. Clark told him that it was defendant who told the younger men to do the burglary. Finley displayed a gun, and defendant kicked in the door. Defendant told Clark to stash the television in the trash. Clark said that when he left the apartment, defendant went in.
Detective William Fallon of the Los Angeles Police Department conducted a recorded interview of defendant approximately 10 months after the shooting. The recording was played for the jury. Detective Fallon identified defendant’s voice on the tape. Defendant said he used to be a member of the Six Deuce Brims. After being read his Miranda rights, defendant eventually acknowledged knowing who Egger was. He said he had never had an altercation with him. Defendant said he did not break into houses.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Officer Steve Burciaga of the Los Angeles Police Department had been assigned formerly to the anti-gang unit where he specialized in two gangs, one of which was the Six Deuce Brims. The gang has approximately 250 members. Officer Burciaga testified regarding the gang’s color (red), hand signs, territory, tattoos, common graffiti, and the fact that they are a Blood gang and rivals to the Crips. Harvard Park is located in the gang’s territory and is a gang “hangout.” There is a sect of the gang that calls itself the Harvard Park Brims. Eggers’s building was within the gang’s territory. Among the criminal activities associated with the Six Deuce Brims are everything from vandalism to murder. Common crimes are robbery, assault with a deadly weapon, and narcotic sales.
Officer Burciaga testified that the person who made the markings on the white chair from Eggers’s apartment was from Six Deuce Brims. The chair bore an abbreviation for the Harvard Park Brims (HPB) and a roll call of gang names of the gang’s allies and enemies. The chair might have been a calling card left to show who committed the crime. Officer Burciaga stated that a gang member who was willing to commit serious crimes would be elevated in the gang. It would show the member’s commitment to the gang’s goal of maintaining fear and intimidation in the community.
Defendant had admitted his membership in Six Deuce Brims to Officer Burciaga during prior contacts. His moniker is “Wolfie,” and he was active at the time of the shooting and at the time of his interview with Detective Fallon. Defendant was somewhere in the middle as far as gang status. Officer Burciaga identified several gang tattoos on photographs of defendant’s body. Officer Burciaga had seen defendant with Finley, a fellow gang member, many times. Officer Burciaga also knew Collier and Clark as gang members.
Officer Burciaga testified regarding two predicate crimes that were committed before the shooting by a Mr. Collins and a Mr. Lavender, who were members of the Six Deuce Brims. The prosecutor gave the officer a hypothetical based on the facts of the instant case and asked him if he believed that the burglary was done for the benefit of the Six Deuce Brims gang. Officer Burciaga believed the crime was committed for the gang because the gang constantly keeps fear and intimidation within the community by committing various crimes. He said it was a typical case that would benefit the gang, and any proceeds from the burglary would eventually filter down throughout the gang. The individuals were working in concert and according to a plan in furtherance of the gang. Killing the victim of the burglary maintained fear and intimidation in the neighborhood and ensured there were no witnesses to the crime.
II. Defense Evidence
Defendant did not testify. The defense called Detective Fallon and confirmed that he had interviewed Finley. The jury listened to a recording of the interview while following with transcripts. Finley said he did not mean to shoot Egger, but the gun went off as he struggled with Egger. Detective Diaz testified that when he interviewed Clark, Clark initially denied his involvement in the crime.
DISCUSSION
I. Special Circumstance Allegation
A. Defendant’s Argument
Defendant contends that the LWOP sentence requires reversal because the jury failed to find a necessary element of the special circumstance allegation; i.e., that he acted with the intent to kill. Because defendant was an aider and abettor rather than the actual shooter, the jury’s finding of the special circumstance allegation had to include a finding that defendant acted with intent to kill. The jury made no such finding due to the incomplete wording of the verdict form. Therefore, defendant maintains, the prosecutor failed to meet his prima facie burden of proof on the special circumstance allegation. Defendant argues that the prohibition against double jeopardy means that retrial on the allegation is barred.
B. Relevant Authority
Section 190.2, subdivision (a)(17) mandates a sentence of death or LWOP where “[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: [¶] . . . [¶] (G) Burglary in the first or second degree in violation of Section 460. . . .”
C. No Error in Verdict Form
The record shows that the jury was instructed that in order to prove the special circumstance for a defendant who is not the actual killer but who is guilty as an aider and abettor, the People had to prove that defendant had either the intent to kill or that he acted with reckless indifference to human life. The jury found the special-circumstance allegation to be true for count 1 on a verdict form worded as follows: “We further find the special circumstance allegation that the above murder was committed while the defendant was in the commission of the crime of burglary, within the meaning of Penal Code section 190.2(a)(17).”
The jury was instructed as follows on the special-circumstance allegation: “If you decide that the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance of murder during burglary, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. [¶] In order to prove this special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant was a major participant in the crime; AND [¶] 2. When the defendant participated in the crime, he acted with reckless indifference to human life. A person acts with reckless indifference to human life when he knowingly engages in criminal activity that he knows involves a grave risk of death. The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstance of murder during burglary to be true. If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance of murder during burglary to be true. If the People have not met this burden, you must find this special circumstance has not been proved true.” (CALCRIM No. 703.) (Italics added.)
As the People note, defendant cites no authority for the proposition that the verdict form must include all the elements that the jury must find before it can determine that the defendant is guilty of a crime or that an allegation is true. On the contrary, it has been held that special findings are satisfied by the jury’s finding the truth of an alleged special circumstance, and it is unnecessary for the jury to find the facts on which its determination is based. (See People v. Odle (1988) 45 Cal.3d 386, 416, disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 256; People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 753; People v. Davenport (1985) 41 Cal.3d 247, 274–275.)
An example is presented by the case of People v. Lobato (2003) 109 Cal.App.4th 762 (Lobato). In that case, the defendant was charged with being “substantially involved” in a conspiracy relating to the sale, transportation or possession of methamphetamine that exceeded four kilograms by weight (Health & Saf. Code, § 11370.4, subd. (b)(2).) The verdict form in Lobato omitted a specific finding that the defendant was “substantially involved” in the conspiracy, and Lobato argued that the lack of a finding of substantial involvement constituted reversible error. The Lobato court rejected the defendant’s argument because the jury had been instructed that the defendant must have been “‘substantially involved’” in the conspiracy. (Lobato, supra, at pp. 765–766.) The court stated that, “where the jury is fully instructed as to each element of the enhancement, it is not necessary for the verdict to enumerate each of those elements. [Citation.]” (Id. at p. 766.)
We agree with the reasoning of Lobato and conclude that the wording of the verdict form did not result in the absence of a finding that defendant had the requisite intent, and his argument is without merit.
II. Evidence Pertinent to Gang Enhancement
A. Defendant’s Argument
Defendant contends that the sentence of 25 years to life based on his coperpetrator’s use of a gun and his own gang membership is flawed. He argues that the prosecution misused the evidence of defendant’s gang membership, and the gang expert testified that, since every illegal act by a gang member is done for the benefit of the gang, defendant committed the burglary with the specific intent to benefit the gang. This evidence was legally insufficient to support the gang allegation.
Moreover, defendant argues, the expert invaded the province of the jury by giving his general opinion on defendant’s intent. According to defendant, the trial court erred by allowing this improper testimony. Had the trial court excluded the expert’s inappropriate opinions, the jury would have been left with insufficient evidence to support the gang enhancement. Thus, the firearm-use enhancement under section 12022.53, subdivisions (d) and (e)(1) (which resulted in a second life sentence) would have been negated.
B. Relevant Authority
To subject a defendant to the penal consequences of [section 186.22], “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, [and] with the specific intent to promote, further, or assist in any criminal conduct by gang members. [Citation.]’” (People v. Gardeley (1996) 14 Cal.4th 605, 616–617 (Gardeley).) A trial court has discretion concerning the admission of evidence, including gang expert testimony. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1194.)An expert may offer opinion testimony if the subject is sufficiently beyond common experience so that it would assist the trier of fact. (Evid. Code, § 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438; Gardeley, supra, 14 Cal.4th at p. 617; People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew).) Expert testimony “concerning the culture, habits, and psychology of gangs” meets this criterion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez); see Gardeley, supra, 14 Cal.4th at p. 617.)
An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jury’s common experience. (Valdez, supra, 58 Cal.App.4th at pp. 507–509.) Courts have repeatedly found the admission of similar examples of expert testimony proper. (E.g., People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207–1209 [trial court properly admitted expert’s testimony that defendant committed shooting to reestablish his reputation and that of his gang and to send a message to the community and rival gangs]; Valdez, supra, 58 Cal.App.4th at pp. 508–509 [trial court did not abuse its discretion in admitting gang expert’s testimony that a caravan of gang members from diverse gangs had united for one day to attack another group of gang members, resulting in the charged crimes]; Gardeley, supra, 14 Cal.4th at p. 619 [concluding the trial court’s admission of gang expert’s testimony was consistent with well-settled principles governing the form of such evidence, the determination of prejudice versus probative value, and disclosure of the information on which opinion founded].)
C. Expert Testimony Properly Admitted
According to defendant the most egregious testimony by Officer Burciaga came in response to the prosecutor’s hypothetical question. Defendant asserts that the length and detail of the hypothetical question meant that it amounted to a mid-trial closing argument that gave the gang expert an opportunity to endorse the prosecutor’s version of the evidence. Defendant claims that Officer Burciaga ran afoul of Killebrew and Gardeley by basing his answer on his personal investigation of the case and his personal knowledge of defendant. By injecting this personal component into his opinion, Officer Burciaga testified on the ultimate issue of defendant’s guilt.
We disagree with defendant’s characterization of Officer Burciaga’s testimony. First, Officer Burciaga did not testify that every crime committed by a gang member was for the benefit of the gang. When specifically asked by defense counsel whether gang members ever commit crimes that are not for the benefit of the gang, the officer replied that they do.
Furthermore, neither the hypothetical question nor the officer’s answer invaded the province of the jury. Officer Burciaga did not testify that he knew specifically defendant’s intent. (See Killebrew, supra, 103 Cal.App.4th at pp. 654, 657–659; In re Frank S. (2006) 141 Cal.App.4th 1192, 1197.) The hypothetical faithfully tracked the evidence and did not include defendant in its language; rather, it referred to older and younger gang members. Officer Burciaga testified that the individuals in the gang worked in concert and that they commit burglaries for monetary value, to obtain guns, and to keep fear and intimidation in the community. The shooting was also done for the benefit of the gang because it kept fear in the community and ensured there would be no witnesses. Although Officer Burciaga mentioned that his knowledge of the perpetrators in this case provided input to his conclusion, there was testimony from other witnesses, such as Warren and Clark, that defendant and the other perpetrators were gang members.
Moreover, proof that a defendant acted with the specific intent to further or assist in any criminal conduct by gang members—that is, that a defendant acted in association with other gang members—is sufficient to establish that the gang enhancement applies. (People v. Morales (2003) 112 Cal.App.4th 1176, 1179, 1197–1199.) Here, the evidence established that defendant, Finley, Collier, and Clark were gang members, and that defendant intimidated Collier and Clark, the two younger members, to break into the apartment with him and Finley. As Officer Burciaga pointed out, the individuals here were acting collectively according to a plan and with assigned roles. They were acting within their area of control and letting the community know that they are “running the show there.” This properly admitted testimony was substantial evidence of defendant’s intent to promote and assist in criminal conduct by his fellow gang members.
Lastly, we note that during Officer Burciaga’s testimony the trial court admonished the jury by stating, “As we told you during voir dire just because someone may be associated with a criminal street gang or member of a street gang doesn’t mean that they necessarily committed a particular crime, you’ll remember that. And this officer is allowed to testify—and we have had him testify now at some length—as to the existence of the Six Deuce Brims as a criminal street gang. One of the charges in this case is that the crimes that are alleged were committed for the benefit of a criminal street gang, namely the Six Deuce Brims. And so, under the law the People are required to bring proof into the court that such an organization exists and is under the law a criminal street gang. And that is what the testimony here is designed to support. But I want to remind you that just because someone may be associated with or a member of a criminal street gang doesn’t mean they did a particular crime.”
Also, before Officer Burciaga testified regarding the predicate crimes the trial court admonished the jury: “Now, Ladies and Gentlemen, let me again give you what is called a cautionary instruction. The prosecutor and the witness are going to be talking about some convictions suffered by persons whose names she just mentioned. There is absolutely no evidence that the defendant here had anything to do with these convictions. The reason that you are hearing about Mr. Collins and Mr. Lavender and their convictions, is it goes to establishing under the law the elements of what is necessary for the People to prove to show that there is a criminal street gang. So you must consider it only on the issue of whether or not the Six Deuce Brims qualifies under the law as a criminal street gang and for no other reason.”
We conclude that Officer Burciaga’s testimony was within the purview of proper testimony by a gang expert. The trial court’s admonitions to the jury buttress our conclusion that the prosecutor did not use the evidence inappropriately, as defendant claims. We also conclude that Officer Burciaga did not usurp the jury’s function and that his testimony was not susceptible to misuse by the jury in finding defendant guilty and in finding the gang allegation to be true.
III. Staying of Remaining Enhancements
A. Defendant’s Argument
Defendant contends that the trial court was required to strike the firearm-use enhancement alleged pursuant to section 12022, subdivision (a) after imposing sentence on a firearm-use enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1). In addition, because there was no finding or evidence that defendant personally used or discharged a firearm, the trial court erred by staying rather than striking the gang enhancement pursuant to section 186.22.
B. Relevant Authority
Section 12022, subdivision (a)(1) provides: “Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.”
Section 12022.53, subdivision (f) provides in pertinent part that, “An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.”
C. Enhancements Should be Stricken
1. Section 12022 Enhancement
The jury found true allegations under section 12022, subdivision (a)(1) and section 12022.53, subdivisions (d) and (e)(1) in both the burglary and murder counts. The trial court stayed the enhancement under section 12022 and the gang enhancement for the murder count, stating that the gang allegation was subsumed into section 12022.53, subdivisions (d) and (e)(1). The court stayed all sentences on the burglary count. Defendant contends the court should have stricken, not merely stayed, the enhancement imposed under section 12022 and the gang enhancement in count 1.
In People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), the court held as a matter of statutory interpretation that the appropriate procedure where multiple firearm use and discharge enhancement allegations under section 12022.53 have been found true is to “stay the execution of all such enhancements except for the one which provides the longest imprisonment term.” (Bracamonte, supra, at p. 713.) In addition, Bracamonte stated that section 12022.53, subdivision (h) required the striking of duplicative firearm enhancements under the specific provisions enumerated in subdivision (f) of section 12022.53 (including § 12022). (Bracamonte, supra, at p. 712, fn. 5.) Therefore, the trial court erred when it failed to strike the firearm-use enhancement under section 12022 in count 1, and we order it stricken. Since the trial court did not impose a sentence in count 2 before announcing that sentences on the charge and allegations in count 2 were stayed, we do not address that count.
2. Gang enhancement
Defendant contends that the trial court erred in staying the gang enhancement instead of striking it. Defendant makes this argument pursuant to section 12022.53, subdivision (e)(2), which states that a defendant can be sentenced to a gang enhancement as well as a section 12022.53 firearm-use enhancement only if he personally uses or discharges the firearm. We agree with defendant. (See People v. Salas (2001) 89 Cal.App.4th 1275, 1281–1282 [unless accused personally used the firearm, imposition of an additional gang enhancement is precluded when an enhancement pursuant to section 12022.53(e)(1) is imposed].)
IV. Imposition of Court Security Fee
A. Defendant’s Argument
Defendant contends that, since he committed the offenses before the effective date of section 1465.8, the trial court’s imposition of the security fee pursuant to that section violated the constitutional prohibition against ex post facto laws and the prohibition of section 3 against retroactive application of laws.
Section 1465.8 provides in its entirety: “(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.”
B. No Statutory or Ex Post Facto Violation
Defendant’s claim has recently been decided by the California Supreme Court in People v. Alford (2007) ____ Cal.4th ____ [2007 Cal.LEXIS 13744] (Alford). Alford held that retroactive application of section 1465.8 does not implicate section 3 and “does not violate the prohibition against ex post facto laws.” (Alford, supra, ____ Cal.4th ____ [2007 Cal.LEXIS 13744 at p. 2].)
Section 3 states with respect to the Penal Code that “[n]o part of it is retroactive, unless expressly so declared.”
We therefore decline to strike the $20 court security fee on statutory or constitutional grounds. We also note that the statute requires imposition of a $20 fee for each conviction. Therefore, the fee in this case must be $40.
DISPOSITION
The section 12022, subdivision (a) enhancement is stricken in count 1 and the gang enhancement pursuant to section 186.22, subdivision (b)(1) is stricken in count 1. A court security fee of $40 is imposed. As modified, the judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect these changes and to forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., DOI TODD, J.