Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF099043A, John R. Brownlee, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J., and Poochigian, J.
On December 8, 2009, appellant, Juan Espinoza, pled no contest to the continuous sexual abuse of a child under the age of 14 (count 1/Pen. Code, § 288.5, subd. (a)) and unlawful sexual intercourse with a child under the age of 16 (count 3/§ 261.5, subd. (d)) and admitted a great bodily injury enhancement in count 1 (§ 12022.7).
All further statutory references are to the Penal Code, unless otherwise indicated.
On January 7, 2010, the court sentenced Espinoza to an aggregate 10-year term consisting of the lower term of six years on count 1, a three-year great bodily injury enhancement in that count, and a one-year term on count 3 (one-third the middle term of three years). Pursuant to Penal Code section 290.3, the court also imposed fines of $200 and $300, respectively, on counts 1 and 3, and an aggregate penalty assessment of $780 on each count, consisting of $300 pursuant to Penal Code section 1464, subdivision (a)(1), $210 pursuant to Government Code section 7600, subdivision (a), $30 pursuant to Government Code section 76104.6, $30 pursuant to Government Code section 76104.7, $150 pursuant to Government Code section 70372, subdivision (a), and $60 pursuant to Penal Code section 1465.7. Additionally, as to each count the court imposed a $30 assessment pursuant to Government Code section 70372, subdivision (a) and a $30 assessment pursuant to Penal Code section 1465.8.
The aggregate $780 in penalty assessments was imposed in each count based on the fine imposed in that count pursuant to section 290.3.
On appeal, Espinoza contends the court erred in imposing: 1) a fine pursuant to Penal Code section 290.3 in count 3; 2) penalty assessments pursuant to Government Code sections 76104.6 and 76104.7 in each count; 3) penalty assessments pursuant to Penal Code section 1465.7 and Government Code section 70372 in each count; 4) an aggregate $780 in assessments pursuant to various statutes in count 1; and 5) an assessment pursuant to Government Code section 70373 in each count. We will find merit to Espinoza’s first four contentions and modify the judgment accordingly. In all other respects, we will affirm.
The underlying facts of Espinoza’s appeal are omitted because they are not germane to the issues raised on appeal. However, we note that Espinoza was not arrested in this matter until August 3, 2009, in Oregon.
The Section 290.3 Fine Imposed in Count 3
Espinoza contends the court erred in imposing a $300 fine on his conviction in count 3 because the offense underlying that count is not listed in subdivision (c) of section 290.3. Respondent concedes and we agree.
Section 290.3, subdivision (a) provides:
“Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.”
Unlawful intercourse with a child under the age of 16 in violation of section 261.5 is not listed in subdivision (c) of section 290. (§ 290, subd. (c).) Accordingly, we agree that the court erred when it imposed a $300 fine pursuant to section 290.3 on his conviction in count 3. Further, since the aggregate $780 in assessments imposed on count 3 was based on this $300 fine, it follows that the court also erred when it imposed an aggregate $780 in assessments on that count.
The Government Code Sections 76104.6 and 76104.7 Penalty Assessments
As noted above, the aggregate assessment of $780 the court imposed on each count included $30 penalty assessments pursuant to Government Code sections 76104.6 and 76104.7. Government Code section 76104.6 went into effect on November 3, 2004. (People v. Batman (2008) 159 Cal.App.4th 587, 590.) Government Code section 76104.7 became effective on July 12, 2006. (Stats. 2006, ch. 69, § 18.) Espinoza committed the offenses underlying his two convictions sometime between July 1, 2000, and March 1, 2002, before the effective date of either section.
Espinoza argues, and the People concede, that because neither of the above sections were in effect when Espinoza committed the offense underlying his conviction in count 1, the court erred in imposing assessments in that count pursuant to these sections. We agree.
Espinoza raises this contention as to the similar assessments imposed on count 3. This contention is moot, however, in light of our conclusion in the previous section that the court erred in imposing $780 in penalty assessments on count 3.
In People v. Batman, supra, 159 Cal.App.4th 587, the court held that the Government Code section 76014.6 penalty assessment is punitive in nature and therefore its imposition violates the constitutional prohibition of ex post facto laws where the defendant’s criminal act preceded its enactment. The same analysis applies to the Government Code section 76014.7 penalty assessment. Accordingly, we conclude that the court erred when it imposed on count 1 penalty assessments of $30 pursuant to Government Code sections 76014.6 and 76014.7.
The Assessments Pursuant to Penal Code Section 1465.7 and Government Code Section 70372
As also noted earlier, the aggregate assessment of $780 the court imposed in each count included a $150 assessment pursuant to Government Code section 70372, subdivision (a) and a $60 assessment pursuant to Penal Code section 1465.7. Penal Code section 1465.7 became effective on September 30, 2002 (Stats. 2002, ch. 1124, §46), whereas Government Code section 70372 became effective on January 1, 2003. (People v. High (2004) 119 Cal.App.4th 1192, 1197, fn. 2.) Espinoza contends, and respondent again concedes, that these assessments constituted penalties and that their imposition here violated ex post facto principles because both sections were enacted after Espinoza committed the offenses underlying count 1. We agree (id. at pp. 1196, 1199) and we will order these assessments stricken.
The Assessments Imposed on the Section 290.3 Fine Imposed on Count 1
As noted earlier, the court imposed a section 290.3 fine on count 1 of $200. Espinoza contends that the assessments imposed pursuant to Penal Code section 1464, subdivision (a)(1) and Government Code section 7600, subdivision (a) must be recalculated because the court erroneously based them on a Penal Code section 290.3 fine of $300. Respondent contends Espinoza forfeited this issue by his failure to object in the trial court but concedes that if not forfeited, these assessments must be recalculated based on a fine of $200. Espinoza’s contention is correct.
In People v. Scott (1994) 9 Cal.4th 331 (Scott), the Supreme Court held that the “the [forfeiture] doctrine [applies] to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (Id. at p. 353.) However, “the ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.” (Id. at p. 354.) Therefore, “claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Ibid.)
Section 1464, subdivision (a)(1) provides:
“[E]xcept as otherwise provided in this section, there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, 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.”
Government Code section 76000, subdivision (a)(1) provides:
“Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
The parties concede and we agree that the court erroneously used the amount of $300 to calculate the assessments imposed in count 1 pursuant to Penal Code section 1464, subdivision (a)(1) and Government Code section 7600, subdivision (a). Thus, we conclude that the court imposed an unauthorized sentence with respect to each of these assessments because it did not follow the statutory formula. (Cf. People v. Smith (2001) 24 Cal.4th 849, 852 [A “narrow exception” to Scott’s forfeiture rule exists for “obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings ….”].)
Further, based on the $200 Penal Code section 290.3 fine imposed in count 1, the court should have imposed a $200 penalty assessment pursuant to Penal Code section 1464, subdivision (a)(1) [$200/$10 = 20; 20 x $10 = $200] and a $140 penalty assessment pursuant to Government Code section 76000, subdivision (a)(1) [$200/$10 = 20; 20 x $7 = $140] for a total aggregate penalty assessment of $340 [$200 + $140 = $340].
The Assessment in Each Count Pursuant to Government Code Section 70373
Government Code section 70373 was enacted in 2008 and became effective on January 1, 2009. (Gov. Code, § 70373, added by Stats. 2008, ch. 311, § 6.5.) This code section in pertinent part 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 ….” (Gov. Code, § 70373, subd. (a)(1).)
Espinoza contends this section operates only prospectively because the language of the statute does not overcome the presumption of prospective application and the legislative history does not support a conclusion that the Legislature intended this section to be applied retroactively. Thus, according to Espinoza, the assessments imposed pursuant to this section were unauthorized and must be reversed because he committed the underlying offenses prior to the effective date of Government Code section 70373.
This court recently held that Government Code section 70373 applies from the date of a defendant’s conviction, not the date the offense was committed. (People v. Phillips (2010) 186 Cal.App.4th 475, 477-479; see also People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415.) We find these cases controlling and apply their holdings here. Therefore, we conclude that the court was authorized to impose the assessments at issue because Espinoza was convicted by plea on December 8, 2009, well after the effective date of Government Code section 70373.
DISPOSITION
The judgment is modified to strike the $300 fine pursuant to section 290.3 and the $780 in penalty assessments imposed in count 3. Additionally, the $780 in penalty assessments imposed in count 1 are reduced to $340 as calculated above. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.