Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Wade Olson, Judge, Super. Ct. No. KA061583, Super. Ct. No. KA074017 (Los Angeles County)
Russell S. Babcock, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A.Voet, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Llewellyn Charles Cox was convicted by plea in two cases (Case No. KA061583 and Case No. KA074017) and was sentenced to three years state prison. He appeals, contending that the trial court erred in imposing duplicative restitution fines in Case No. KA061583. (Pen. Code, § 1202.4, subd. (b).) Appellant also claims that the $20 court security fee (§ 1465.8. subd. (a)(1)) and $200 parole revocation fine (§ 1202.45) imposed in Case No. KA061583 violate ex post facto principles.
All statutory references are to the Penal Code unless otherwise stated.
We strike the $200 parole revocation fine in Case No. KA061583 and add a second $20 court security court fee. As modified, the judgments are affirmed.
Procedural History
First Case: Case No. KA061583
On February 24, 2004, appellant pled guilty to false personation (§ 529) and agreeing to engage in prostitution (§ 647, subd. (b)) in Case No. KA061583. The trial court sentenced him to three years state prison, suspended execution of sentence, and granted probation with 365 days county jail. Appellant was ordered to pay a $20 court security fee (§ 1465.8, subd. (a)(1)), victim restitution (§ 1202.4, subd. (f)), a $200 restitution fine (§ 1202.4, subd. (b)), and a $200 probation revocation fine (§ 1202.44).
Appellant's probation was revoked in 2006 after he was arrested and charged with new offenses (Case No. KA074017). Appellant admitted violating probation and was ordered to serve the three year prison sentence. The trial court also ordered appellant to pay a $200 parole revocation fine (§ 1202.45).
Second Case: Case No. KA074017
In the second case, appellant entered a plea of no contest to commercial burglary (§ 459). The trial court sentenced him to 16 months state prison, to be served concurrently with the three year sentence in Case No. KA061583. Appellant was ordered to pay a court security fee (§ 1465.8, subd. (a)(1)), victim restitution (§ 1202.4, subd. (f)), a restitution fine (§ 1202.4, subd. (b)), and a parole revocation fine (§ 1202.45).
Duplicative Restitution Fines – Case No. KA061583
Appellant argues that the trial court erred in imposing a second $200 restitution fine (§ 1202.4, subd. (b)) in Case No. KA061583 when it revoked probation and ordered him to serve the prison sentence.
Section 1202.4, subdivision (b) requires that a trial court impose a restitution fine of not less than $200 and not more than $10,000 in any case where the defendant is convicted of a felony. Where the defendant is granted probation, payment of the restitution fine is a condition of probation. If defendant's probation is violated, any portion of the restitution fine that remains unsatisfied continues to be enforceable. (§ 1202.4, subd. (m).) Because section 1202.4 contemplates a single restitution fine, and because the fine remains in effect following revocation of probation, a trial court lacks authority to increase the fine or impose a second fine upon revocation of probation. (People v. Arata (2004) 118 Cal.App.4th 195, 203; People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.)
Appellant was ordered to pay a $200 restitution fine in 2004 when the trial court sentenced him to state prison, suspended execution of sentence, and granted probation. In 2006, probation was revoked. The trial court ordered appellant to serve the three year sentence previously imposed and stated that appellant is "[o]rdered to pay a $200 restitution fine."
Appellant argues that the trial court imposed a second and new $200 restitution fine. We disagree. The trial court merely noted that appellant had been previously ordered to pay a $200 restitution fine. It also noted that a $20 court security fee had been previously imposed and that appellant "can pay that through the Department of Corrections." The court minutes and abstract of judgment indicate that only one $200 restitution fine and one $20 court security fee were imposed in Case No. KA061583.
Viewing the whole record in the light most favorable to the judgment, as opposed to the isolated, contemporaneous remarks of the trial court (see e.g., People v. Bravot (1986) 183 Cal.App.3d 93, 95), we reject the argument that the trial court imposed a duplicative $200 restitution fine. Calculating fines under our determinate sentencing law is like an algebra exam. (See e.g., People v. Winslow (1995) 40 Cal.App.4th 680, 684 & fn 1.) The trial court cannot be faulted for summarizing the fines previously imposed. "Suplufluity does not vitiate." (Civ. Code, § 3537.)
Probation/Parole Revocation Fines
Appellant argues, and the Attorney General agrees, that the trial court erred in imposing a $200 probation revocation fine (§ 1202.44) which was converted into a $200 parole revocation fine (§ 1202.45) after probation was revoked and appellant was remanded to state prison.
Appellant committed the offenses on February 21, 2003. Section 1202.44, however, did not become operative until August 16, 2004 (Stats. 2044, ch. 223, § 3) and does not apply to offenses committed before its enactment. (See e.g., People v. Callejas (2000) 85 Cal.App.4th 667, 676-678 [ex post facto principles prohibit imposition of parole revocation fine on defendant who committed offense before statute enacted].)
Here a $200 probation revocation fine was erroneously imposed Case No. KA061583 and became a $200 parole revocation fine when appellant was ordered to serve his prison sentence. We strike the $200 parole revocation fine in Case No. KA061583.
$20 Court Security Fee
Appellant contends that the $20 court security fee imposed in Case No. KA061583 violates ex post facto principles because the offenses were committed before the enactment of the court security fee statute. Section 1465.8, subdivision (a)(1), which became operative August 17, 2003 (Stats. 2003, ch. 159, § 25), 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, including a traffic offense . . . ."
The court security fee is a nonpunitive fee, assessed for use of a court facility. (People v. Schoeb (2005) 132 Cal.App.4th 861, 866; People v. Wallace (2004) 120 Cal.App.4th 867, 878.)It "is not subject to the limitations of the ex post facto clause. [Citations.]" (Ibid.)Although appellant committed the crimes before section 1465.8's effective date, the court security fee is not a punitive fine and may be retroactively imposed. (Id., at pp. 878-879.)
Our Supreme Court is currently considering whether a court security fee may be retroactively imposed without violating ex post facto principles. (See People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508.)
Citing Penal Code section 3, appellant argues that the court security fee statute is not retroactive unless expressly so declared. "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. [Citations.] A law is not retroactive 'merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.' [Citation.]" (People v. Grant (1999) 20 Cal.4th 150, 157.)
Section 1465.8, subdivision (a)(1) provides that a $20 court security fee must be imposed "on every conviction . . . ." Here the last act or event necessary to trigger application of the statute was the conviction. Because appellant was not convicted until after section 1465.8 went into effect, the statute operates prospectively as to him.
Imposition Of $20 Court Security Fee For Each Offense
The Attorney General argues that that the trial court erred in not imposing a second $20 court security fee in Case No. KA061583. We agree. Section 1465.8, subdivision (a)(1) requires that a $20 security fee be imposed "on every conviction for a criminal offense . . . ." (Ibid.; see People v. Schoeb, supra, 132 Cal.App.4th at p. 866.) Because appellant was convicted of two offenses in Case No. KA061583, a second $20 security fee must be imposed. (Id., at p. 866.)
The judgment in Case No. KA061583 is modified to strike the $200 parole revocation fine (§ 1202.45) and to add a second $20 court security fee (§ 1465.8, subd. (a)(1)). The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy to the Department of Corrections. As modified, the judgments are affirmed.
On March 7, 2007, we granted appellant 20 days leave to file a supplemental letter brief on presentence custody credits and on whether the three year upper term sentence in Case No. KA061583 violates Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. Appellant did not file a letter brief.
We concur: COFFEE, J., PERREN, J.