Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. SWF026721 & SWF010581 Judith C. Clark, 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, Gary W. Schons, Assistant Attorney General, Anthony Da Silva and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
Defendant Luke Freund seeks reversal of two $30 Government Code section 70373 (section 70373) assessments. We will reverse one and affirm one.
Originally identified as “Richard Andreas Schuman, ” defendant’s true name is Luke Freund.
FACTS AND PROCEDURAL HISTORY
On October 11, 2004, defendant possessed heroin. On April 14, 2005, in case No. SWF010581, he pled guilty to one count of possession of heroin (Health & Saf. Code, § 11350, subd. (a)), and admitted that he had served two prison priors (Pen. Code, § 667.5, subd. (b)). In exchange, the court suspended the proceedings and placed defendant on probation for 36 months with terms and conditions. On June 2, 2005, the court revoked defendant’s probation but allowed him to remain free on his own recognizance while he participated in a drug rehabilitation program. On January 10, 2008, probation was reinstated.
Exactly eight months later, on September 10, 2008, defendant assaulted Eli B. On October 13, 2009, in case No. SWF026721, defendant pled guilty to one count of assault with force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).)
Also on October 13, 2009, the court sentenced defendant to concurrent state prison terms in the two cases. In case No. SWF010581, the court dismissed one of the prison priors and sentenced defendant to the midterm of two years in state prison for the felony drug possession conviction, plus one consecutive year for the remaining prison prior. In case No. SWF026721, the court sentenced defendant to three years in state prison for the assault conviction. In each case, the court imposed a section 70373 “criminal conviction assessment” of $30, for a total of $60.
DISCUSSION
The purpose and primary provisions of section 70373 are: “(1) 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.... 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.” (§ 70373, subd. (a)(1).) Further, “[f]or 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.... This assessment shall be deposited in accordance with subdivision (d).” (§ 70373, subd. (a)(2).) And under section 70373, subdivision (d), “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.”
The statute was enacted by the Legislature on September 26, 2008, as part of Senate Bill No. 1407 (2007–2008 Reg. Sess.), and was part of a broad scheme in which filing fees in civil, family, and probate cases were also raised. (Stats. 2008, ch. 311, § 6.5, eff. Jan. 1, 2009; see also People v. Brooks (2009) 175 Cal.App.4th, Supp. 1, 3-4.)
Defendant argues that the imposition of a section 70373 assessment in cases like his, where criminal acts occurred before the statute’s effective date, violates the rule that new statutes are presumed to act prospectively. We are not persuaded.
In People v. Alford (2007) 42 Cal.4th 749 (Alford), the California Supreme Court analyzed a similar claim under a similar statute. Penal Code section 1465.8 imposed a $20 court security fee on every criminal conviction, including traffic offenses but excluding parking offenses. The statute was enacted after the Alford defendant committed his criminal acts, but more than two years before he was convicted of them by a jury. At sentencing, the trial court imposed the fee. (Alford, at pp. 752-753.) In affirming the decision, the Supreme Court noted that the legislative history of the measure showed that the provision was part of an urgency funding bill clearly intended to take effect immediately. Accordingly, Penal Code section 3 was not implicated. (Alford, at pp. 754-755.) Nor did ex post facto prohibitions apply: the statute did not retroactively alter the definition of a crime or increase the punishment for a criminal act. Among other things, its purpose was budgetary, not punitive; the amount imposed was unrelated to the severity of the crime; $20 was not so great as to constitute punishment in nature or effect; and the Legislature had called it a “fee, ” not a “fine.” (Alford, at pp. 755-759.)
Similarly here, section 70373 was passed as part of a general funding scheme whose urgency of purpose is evident in the specific provision for a monthly transfer of funds into the “Immediate and Critical Needs Account.” (§ 70373, subd. (d).) In addition, as the People note, section 70373 was placed in the Government Code, not the Penal Code.
Defendant’s argument has been considered and rejected in a number of recent cases analyzing the effect of Alford on section 70373. Among these are People v. Fleury (2010) 182 Cal.App.4th 1486 (Fleury), People v. Castillo (2010) 182 Cal.App.4th 1410 (Castillo), and People v. Davis (2010) 185 Cal.App.4th 998 (Davis). Paralleling the reasoning in Alford, the court in Fleury concluded that, like Penal Code section 1465.8, Government Code section 70373 does not violate prohibitions against ex post facto laws. (Fleury, at pp. 1490-1494.) The Castillo court reached the same conclusion and further found that section 70373 does not violate the general rule that new statutes are presumed to act prospectively. (Castillo, at pp. 1413-1414.) Both Castillo and Davis concluded that the event upon which the statute operates is the date of conviction. (Castillo, at p. 1414; Davis, at p. 1000.)
In Davis, the court reiterated the rule that a “conviction” ordinarily occurs when a jury returns a guilty verdict or when a defendant enters a plea admitting guilt, while noting that an exception may obtain when a civil disability such as disenfranchisement or disbarment from holding office follows from conviction. In such a case, “conviction” occurs when sentence is pronounced. (Davis, supra, 185 Cal.App.4th at p. 1001; see also Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406.) Because the Davis defendant had entered his guilty plea before the effective date of section 70373, and because the statute does not involve a civil disability of the kind that would make the sentencing date the date of “conviction, ” the statute could not be applied to him. (Davis, at p. 1001.)
Pointing out that the term “conviction” has different meanings in different settings, the People argue that because the purpose of section 70373 is to ensure funding for courts, the term “conviction” must be given the broadest possible meaning. In their view, because defendant was not sentenced in either case until October 13, 2009, he was not “convicted” until that date for purposes of section 70373, and both assessments are applicable. Again, we are not persuaded.
The two cases upon which the People rely are not relevant to the situation here. Both dealt with eligibility for Proposition 36 drug treatment programs, not with general funding measures. In each case, the court determined that the date of conviction should be construed so as to include the defendants in the programs: partly because when language in a penal statute is reasonably susceptible of two constructions, the construction more favorable to the defendant will be adopted; and partly because the purpose of the statute, to divert nonviolent drug offenders into treatment programs, would be better served by such an interpretation. (In re DeLong (2001) 93 Cal.App.4th 562, 568, 570; In re Scoggins (2001) 94 Cal.App.4th 650, 657.)
We conclude that the dates of conviction for purposes of the section 70373 assessments occurred when defendant entered pleas admitting guilt in each case, notwithstanding the fact that both crimes were committed before January 1, 2009. This means that his conviction for heroin possession in case No. SWF010581 occurred almost four years before the statute’s effective date, and the assessment in that case cannot stand. By contrast, his conviction in case No. SWF026721 did not occur until he pled guilty on October 13, 2009, well after section 70373 became effective. Accordingly, the assessment in that case is appropriate.
DISPOSITION
The order imposing the $30 court facilities assessment in case No. SWF010581 is reversed. The superior court clerk is directed to amend the abstract of judgment and to forward an amended copy to the Department of Corrections and Rehabilitation.
The order imposing the $30 court facilities assessment in case No. SWF026721 is affirmed.
In all other respects, the judgments in both cases are affirmed.
We concur: HOLLENHORST J., MILLER J.