Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM030183, CM030995
BUTZ, J.
As part of a plea bargain leading to the dismissal of other charges, defendant Melissa Leeann Champlin pleaded no contest to perjury and forgery, and admitted one prior prison term. (Pen. Code, §§ 118, subd. (a), 470, subd. (d), 667.5, subd. (b).) The factual basis of the plea shows she committed perjury on November 2, 2008, and forgery on March 2, 2009. The trial court sentenced defendant to state prison for four years eight months. The court also ordered her to pay $60 as a criminal conviction assessment--$30 for each conviction. Defendant timely appealed.
On appeal, defendant contends the $30 assessment based on the perjury count should be stricken because the statute authorizing that assessment was not effective until after she committed her offense. We disagree. However, we shall modify the judgment to award defendant additional presentence conduct credits.
DISCUSSION
I. The Court Facilities Assessment
Government Code section 70373 (section 70373), subdivision (a)(1) provides: “To ensure and maintain adequate funding for court facilities, an assessment 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 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.” (Stats. 2008, ch. 311, § 6.5.)
The rest of section 70373 provides:
This statute was not effective until January 1, 2009. (See Stats. 2008, ch. 311.) “‘Enacted as part of Senate Bill No. 1407 (2007-2008 Reg. Sess.), the criminal conviction assessment is but one component of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised.’” (People v. Castillo (2010) 182 Cal.App.4th 1410, 1413 (Castillo), quoting People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4.)
In Castillo this court rejected the claim that this assessment violates ex post facto principles. (Castillo, supra, 182 Cal.App.4th at p. 1414.) The assessment is not punitive because: It was adopted as one component of the effort to address a budget shortfall; it is not denominated a “fine”; the amount per conviction is small; and the amount is not dependent on the seriousness of the offense. (Id. at p. 1413.) Indeed, the assessment for an infraction is greater than for a felony or misdemeanor. (Ibid.; § 70373, subd. (a)(1).)
Defendant effectively concedes the ex post facto claim, but argues that, as a matter of statutory construction, the assessment does not apply to crimes committed before its effective date. She relies on the general interpretive rule that statutes are presumed to operate prospectively. (See Strauss v. Horton (2009) 46 Cal.4th 364, 470.)
The assessment is “imposed on every conviction” as defined. (§ 70373, subd. (a)(1).) Both of defendant’s convictions occurred after the statute’s effective date. The fact that one of defendant’s convictions flowed from antecedent criminal conduct is not addressed by the statute.
The California Supreme Court reached a similar conclusion regarding an analogous statute. In People v. Alford (2007) 42 Cal.4th 749 (Alford), a statute effective after Alford’s crime imposed a court security fee on every conviction. (Alford, supra, at p. 753; see Pen. Code, § 1465.8.) Because the statute was part of a budgeting bill, the court concluded that “the Legislature intended to impose the court security fee to all convictions after its operative date.” (Alford, supra, 42 Cal.4th at p. 754.)
Further, like the court security fee, the criminal conviction assessment for court facilities was enacted as part of the budgeting process. (See Castillo, supra, 182 Cal.App.4th at p. 1413.) In Alford, the California Supreme Court viewed such circumstance as an indication that the court security fee was meant to apply to convictions incurred after its operative date. (Alford, supra, 42 Cal.4th at p. 754; accord, People v. Rivera (1998) 65 Cal.App.4th 705, 710-711 [ex post facto claim case].) The same rationale applies here.
The trial court properly imposed a $30 assessment for the perjury count.
In People v. Schoeb (2005) 132 Cal.App.4th 861, we construed the phrase “‘every’ conviction” in the court security fee statute to mean the defendant had to pay the fee for each count of which he stood convicted. (Id. at pp. 865-866.) Section 70373 also hinges the assessment on “every conviction” as defined. Therefore, the trial court in this case correctly imposed a $30 assessment for each count.
II. Penal Code Section 4019
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to her pending appeal and entitle her to additional presentence credits. As expressed in the recent opinion in People v. Brown (2010) 182 Cal.App.4th 1354, we conclude that the amendments do apply to all appeals pending as of January 25, 2010. Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant having served 49 days of presentence custody, is entitled to 48 days of conduct credits, instead of the 24 days awarded under the prior law. (See Pen. Code, § 4019, subds. (b), (c), & (f); In re Marquez (2003) 30 Cal.4th 14, 25-26 [rounding up not permitted].) We modify the judgment to award defendant 49 days of actual credits and 48 days of conduct credits, for a total of 97 days of presentence credit.
DISPOSITION
The judgment is modified to award defendant 48 days of conduct credits, for a total of 97 days of presentence credits. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the 48 days of conduct credits. A certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J. ROBIE, J.
“(a)(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 assessment 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 assessment shall be in addition to the state penalty assessed pursuant to Section 1464 of the Penal Code and may not be included in the base fine to calculate the state penalty assessment as specified in subdivision (a) of Section 1464 of the Penal Code. The penalties authorized by Chapter 12 (commencing with Section 76000), and the state surcharge authorized by Section 1465.7 of the Penal Code, do not apply to this assessment.
“(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 also shall deposit a sufficient amount to include the assessment prescribed by this section.
“(d) Notwithstanding any other law, the assessments 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 Immediate and Critical Needs Account of the State Court Facilities Construction Fund, established in Section 70371.5.
“(e) The Judicial Council shall provide for the administration of this section.”