Opinion
C057192
4-18-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DUARTE, Defendant and Appellant.
NOT TO BE PUBLISHED
In this second appeal after convictions for conspiracy to transport cocaine and conspiracy to use a minor to transport cocaine, defendant Joseph Duarte contends that the trial court misstated the relevant period of parole and that imposition of the $20 court security fee is unconstitutional. We shall affirm.
BACKGROUND
Defendant was indicted along with 14 codefendants in connection with a large-scale drug trafficking conspiracy, the details of which are not relevant to the issues in this appeal. A jury found defendant guilty of conspiracy to transport cocaine between two noncontiguous counties (Pen. Code, § 182, subd. (a)(1) [conspiracy]; Health & Saf. Code, § 11352, subd. (b)); conspiracy to use a minor to transport cocaine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11353, subd. (b)); and possession of a false compartment with intent to conceal cocaine (Health & Saf. Code, § 11366.8, subd. (a)). The jury also found that the weight of the cocaine exceeded 40 kilograms (Health & Saf. Code, § 11370.4, subd. (a)(5)); that defendant was substantially involved in the planning, direction, execution or financing of the underlying offense (Health & Saf. Code, § 11370.4, subd. (a)); a principal was armed during the commission of the offense (Pen. Code, § 12022, subd. (a)(1)); and defendant took advantage of a position of trust in committing the crime (Cal. Rules of Court, rule 4.421(a)(11)).
The trial court sentenced defendant to six years in state prison for conspiracy to transport cocaine, with a consecutive 20-year term for the weight enhancement. The court imposed the middle term for the two other counts, but stayed those terms pursuant to Penal Code section 654. The total term imposed was 26 years. The trial court also imposed various fines and fees, including a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1).
Defendant appealed in case No. C049554. In a partially published opinion, this court reversed the weight enhancement and the conviction for possession of a false compartment with intent to conceal cocaine. We also held that the $50 criminal laboratory analysis fee was inapplicable. (Health & Saf. Code, § 11372.5, subd. (a).) We upheld, however, the imposition of the court security fee against defendants claim that it violated federal and state ex post facto proscriptions. We remanded the matter for resentencing in accordance with our opinion.
People v. Duarte (2007) 147 Cal.App.4th 1231.
On resentencing, the trial court sentenced defendant to six years in prison for conspiracy to transport cocaine and the middle term of six years, stayed, for conspiracy to use a minor to transport cocaine. The trial court also reimposed the $20 court security fee.
DISCUSSION
I
On resentencing, the trial court stated, "You will be on parole again for a period not to exceed four years." Both defendant and the People agree that the appropriate maximum parole period is three years. (Pen. Code, § 3000, subd. (b)(1).) However, because the trial court does not impose a period of parole, but was simply reciting applicable law to defendant, any error in the courts recitation does not require correction by this court. The grant and duration of parole is a matter for the Department of Corrections and Rehabilitation to decide within the law.
II
As stated above, on resentencing, the trial court again imposed the $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1).
In his previous appeal, as in this appeal, defendant contended that the court security fee violates the ex post facto provisions of the state and federal Constitutions because Penal Code section 1465.8 took effect in August 2003, more than a year after defendant committed the crimes. We held that imposition of the fee did not violate ex post facto provisions because it is a nonpunitive civil assessment. (People v. Wallace (2004) 120 Cal.App.4th 867, 878.) We also concluded that imposition of the fee did not violate Penal Code section 3, which states that no part of the Penal Code "is retroactive, unless expressly so declared" (Pen. Code, § 3), because the fee is "imposed on every conviction for a criminal offense" (Pen. Code, § 1465.8, subd. (a)(1)), which conviction in this case happened after the effective date of the statute. Thus, the fee is not retroactive and, moreover, not imposed as punishment for the crime. (See People v. Bailey (2002) 101 Cal.App.4th 238, 243.)
Accordingly, we held that the trial court properly imposed the court security fee.
Not only were these issues raised and rejected in defendants previous appeal, the California Supreme Court has since rejected both of these arguments in People v. Alford (2007) 42 Cal.4th 749 (Alford). The Supreme Court held that the fee did not violate ex post facto principles because it served a "nonpunitive purpose." (Id. at p. 756.) Regarding retroactivity, the court stated: "[Penal Code] section 1465.8s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date." (Id. at p. 754.) We are bound by the decisions of the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III
Defendant contends that imposition of the court security fee also violates equal protection because former Government Code section 69926.5, which provided for the $20 court security fee in civil cases, has since been repealed.
Defendants contention is forfeited because he failed to raise it at the time of sentencing. (People v. Rogers (2006) 39 Cal.4th 826, 854; People v. Hall (2002) 101 Cal.App.4th 1009, 1024.) Moreover, he did not make this argument in his previous appeal.
"[W]hen a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have [forfeited] the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay." (People v. Senior (1995) 33 Cal.App.4th 531, 533 (Senior).) This rule is applied where, as here, "(1) the issue was ripe for decision by the appellate court at the time of the previous appeal; (2) there has been no significant change in the underlying facts or applicable law; and (3) the defendant has offered no reasonable justification for the delay." (Senior, at p. 538.)
Defendant could have raised his equal protection contention in his initial appeal and has not made a showing of good cause or justification for the delay. Thus, he forfeited his right to raise this contention in this subsequent appeal. (Senior, supra, 33 Cal.App.4th at p. 538.)
We need not request supplemental briefing from the parties to find defendants contention forfeited, nor would defendant be entitled to rehearing pursuant to Government Code section 68081 because he did not address the principle of forfeiture preclusion in his brief. A party is entitled to provide supplemental briefing only where an issue that neither party proposed or briefed is the basis for the decision. As the legislative history of the statute makes clear, "issue" is not synonymous with a decision applying a rule, principle, or theory of law that the parties did not raise in their briefs in connection with an issue. (See Legis. Counsels Dig. Assem. Amend. to Sen. Bill No. 2321 (1986 Reg. Sess.) July 9, 1986 [substituting "issue" for "rule, principle, or theory of law" in text of statute].) Forfeiture is a rule or principle of law that defendant ignored which is encompassed in his raised issue of the constitutionality of his sentence.
Although we decline to address defendants contention on its merits, we do note the following from the California Supreme Courts opinion in Alford, supra, 42 Cal.4th at page 757, footnote 4: "Defendant notes that [former] Government Code section 69926.5, . . ., was repealed by its own terms, operative January 1, 2006. (See Stats. 2005, ch. 75, § 115.) Defendant urges the $20 court security fee now only applies to criminal actions and thus reflects the Legislatures intent that the fee is punitive in nature. This argument fails. [¶] [Former] Government Code section 69926.5 was amended (and repealed by its own terms) as part of Assembly Bill No. 145 (2005-2006 Reg. Sess.), which became operative on January 1, 2006. However, the Legislature simply replaced this statute with a `uniform civil fee structure. (Stats. 2005, ch. 75, § 1, subds. (d), (e).) [¶] The uniform civil fee structure was created to, `establish a uniform schedule of filing fees and other civil fees for the superior courts. Among other things, [Assembly Bill No. 145] would generally increase the filing fees for civil actions and proceedings, including, but not limited to, those fees related to small claims court, motions, appeals, judgments, the filing of the first paper in a civil action or proceeding in the superior court, in a limited civil case, and in complex cases, and in family law and probate matters, and fees for various certifications, recordings, filings, and the authentication of documents. (Leg. Counsels Dig., Assem. Bill No. 145 (2005-2006 Reg. Sess.).) The Legislature acted to `streamline and simplify civil fees, provide for uniformity in different counties, address the funding shortfall occurring under the current fee structure, and significantly improve financial stability, accountability, and predictability in the courts. (Stats. 2005, ch. 75, § 1, subd. (d).) Thus, the legislative changes were made to increase efficiency in how civil fees were imposed, and there is no indication that there was a change in the Legislatures intent with respect to [Penal Code] section 1465.8."
Thus, contrary to defendants premise, it cannot accurately be said that he is similarly situated as civil litigants or that civil litigants do not pay for court security.
DISPOSITION
The judgment is affirmed.
We concur:
NICHOLSON, Acting P.J.
ROBIE, J.