Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC826032
RUSHING, P.J.
Defendant Brent Bingham Bodily pled guilty to sexual intercourse with a child under 10 years of age. On appeal from the resulting conviction, he contends that the court erred in imposing three monetary charges. Respondent concedes the error as to two of the charges, but contests it as to the third. As to that charge, we conclude that imposition of the charge did not involve an impermissible retroactive application of the authorizing statute. We will therefore direct amendment of the judgment to correct the conceded errors.
Background
There is no occasion to recount the facts of the offense. The procedural history, as relevant, will become evident from the discussion below.
I. Amount of Court Security Fee
Apparently relying on Penal Code section 1465.8, subdivision (a)(1), the trial court imposed a “court security fee” of $30. This was the amount called for by the statute at the time of sentencing, but at the time of defendant’s conviction-i.e., when he entered his plea-the amount was $20. Defendant objects that because the additional $10 was not authorized at the time of his conviction, it could not lawfully be imposed on him. He cites People v. Alford (2007) 42 Cal.4th 749, 754 (Alford), which held that when initially enacted, the statute was “intended to impose the security fee to all convictions after its operative date.” Applying this reasoning to the amendment increasing the charge from $20 to $30, he reasons that the lower amount governed here.
Although defendant did not object below, it does not appear that he had any advance warning of the $30 amount. The probation report contained a typewritten recommendation of $20 which had been stricken by hand with the interlineation “$30.”
Respondent concedes the point, and we see no compelling basis to question it. We will therefore direct a modification of that portion of the judgment.
II. Failure to Itemize Penalty Assessments
In pronouncing sentence the trial court said, “There’s the fine of $300, plus assessments, pursuant to 290.3 of the Penal Code.” This echoed the probation report, among whose listed recommendations was “12. A fine of $300 plus penalty assessment be imposed pursuant to Section 290.3 of the Penal Code.” It does not appear that an amount for the assessments was either recommended by the probation officer or stated by the court in its oral pronouncement of sentence. However, the minutes contain the entry, not otherwise explained, “$300 + PA $795.” The abstract of judgment included a similar entry-“$300 + $795PA”-in a text paragraph under the heading, “Other orders.”
In People v. High (2004) 119 Cal.App.4th 1192, 1200, the trial court imposed a number of charges, including “ ‘a drug program fee, together with surcharges and penalties in the total sum of $ 1, 530’ ” and “ ‘a clandestine drug lab fine, together with penalties, assessments and surcharges totaling $ 1, 700.’ ” These items appeared in similarly un-itemized form in the abstract of judgment. These failures to specify and allocate amounts among the various authorizing statutes were held to be “clerical errors” which the trial court would be directed to correct: “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.]... If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee..., the fee must be included in the abstract of judgment. [Citation.]” (Ibid.) The matter was remanded with directions, among others, to “separately list, with the statutory basis, all fines, fees and penalties imposed on each count.” (Id. at p. 1201.) Defendant contends that a similar disposition should be made here. Respondent again concedes the error and concurs in the disposition. We will therefore adopt it.
III. Retrospective Effect of Government Code Section 70373
The probation report recommended that the court impose “[a] Criminal Conviction Assessment of $30.00... pursuant to Section 70373 of the Government Code.” In its oral pronouncement of sentence, the court imposed a “$30 criminal assessment fee, ” citing no authority. The clerk’s minutes show two $30 charges, one for “SECA” and one for “ICMF.” The abstract of judgment shows a $30 charge in a space prepared for “Court Security Fee[s], ” plus, under Other Orders, the entry “ICMF $30.”
Defendant contends that the while the court security fee was permissible (albeit in the reduced amount of $20), the “ICMF” fee was not, because it was manifestly imposed on the authority of Government Code section 70373 (§ 70373), which only took effect on January 1, 2009, which was after defendant committed the offense for which he was convicted. (See Stats. 2008, ch. 311, § 6.5.) He invokes the rule that statutes will be presumed to operate prospectively only unless a legislative intent to the contrary affirmatively appears.
Respondent concedes that the fee should be viewed as having been imposed on the authority of section 70373, which was not in effect when the crime occurred. Nor does respondent contest defendant’s argument that the objection is available on appeal despite defense counsel’s failure to object below. Respondent contends, however, that the statute’s application to defendant is not retroactive or retrospective because “the triggering event for the imposition of the fee is not the commission of a crime but the sustaining of a ‘conviction.’ ”
The gist of defendant’s argument is that the imposition of a fee under a statute that does not apply to the case constitutes an illegal sentence for which appellate correction is available despite the lack of a predicate objection in the trial court.
A growing weight of authority in other appellate districts has rejected defendant’s position, reasoning in essence that because the statute’s express purpose is to address fiscal difficulties associated with the courts, it was intended to operate on all convictions entered from or after its effective date, regardless of when the underlying offense occurred. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1414-1415 (Castillo); People v. Phillips (2010) 186 Cal.App.4th 475, 478-479; People v. Davis (2010) 185 Cal.App.4th 998, 1000; see People v. Fleury (2010) 182 Cal.App.4th 1486 [rejecting ex post facto objection]; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4 [same]; Alford, supra, 42 Cal.4th at pp. 754-756 [former statute imposing court security fee for revenue purposes held intended to apply to all convictions after effective date].)
Defendant challenges the soundness of the reasoning in Castillo, supra, 182 Cal.App.4th 1410 on the ground that it relied on the Supreme Court’s interpretation of another fee statute in Alford, supra, 42 Cal.4th 749, but differed critically from Alford, where the court relied in part on the statute’s enactment as an urgency measure to conclude that it was intended to apply to all convictions after it took effect. Here, defendant notes, a clause that would have made section 70373 an urgency measure was deleted from the bill prior to enactment. (See Sen. Bill No. 1407 (2007-2008 Reg. Sess.), as amended in Assem. Aug. 8, 2008; cf. Sen. Bill No. 1407 (2007-2008 Reg. Sess.), as amended in Assem. Jul. 14, 2008.)
See SB 1407 Senate Bill – AMENDED, ; SB 1407 Senate Bill – AMENDED, (as of Aug. 30, 2010).
However, while this case is missing one factor relied upon in Alford, it presents another, not present there, that weighs in favor of applying the statute to all convictions entered after it took effect. As the court noted in Castillo, supra, 182 Cal.App.4th at p. 1414, the statutory language on which the Alford court principally relied is nearly identical to the parallel language in section 70373. By the time the latter statute was adopted this language had already been given the effect in Alford that defendant seeks to avoid here. This fact, reasoned the Castillo court, triggered the general rule that “ ‘when a term has been given a particular meaning by a judicial decision, it should be presumed to have the same meaning in later-enacted statutes or constitutional provisions.’ ” (Castillo, supra, 182 Cal.App.4th at p. 1414, quoting Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 422.) Given the absence of any apparent reason to depart from that principle, the Legislature’s adoption of this language reflected an intention that it apply to all convictions entered after its effective date. This factor counterbalances the missing urgency clause, and since both statutes present the common feature of a revenue-generating purpose, we can find no fault in the decision of our fellow courts of appeal in holding section 70373 applicable to all convictions entered after its effective date.
“The court security fee statute provides in part: ‘To ensure and maintain adequate funding for court security, a fee of thirty dollars ($ 30) shall be imposed on every conviction for a criminal offense [as defined].’ (Pen. Code, § 1465.8, subd. (a)(1).) The criminal conviction assessment statute provides in part: ‘To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense [as defined].’ (§ 70373, subd. (a)(1).)” (Castillo, supra, at p. 1414.)
Disposition
The matter is remanded with directions to (1) reduce the court security fee from $30 to $20, (2) prepare an amended abstract of judgment reflecting this modification and separately listing each fine, fee, or other monetary charge imposed, specifying the statutory basis for each; and (3) transmit the amended abstract to correctional authorities. In all other respects, the judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.