Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR75363
HULL, Acting P. J.Defendant Guadalupe Ann Garcia was convicted of possessing marijuana for sale. (Health & Saf. Code, § 11359.) The court sentenced defendant to the mid-term of two years in state prison and imposed various penalties, assessments, and fines, including two $30 assessments pursuant to Government Code section 70373.
In her sole argument on appeal, defendant contends the Government Code section 70373 assessment was an unauthorized retroactive application of the statute in violation of the constitutional prohibitions against ex post facto laws (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9) because her offense was committed in 2008, before Government Code section 70373 became effective in 2009. The People concede the error.
We decline to accept the People’s concession. Penal Code section 3 states: “No part of [the Penal Code] is retroactive, unless expressly so declared.” Defendant makes no reference to the prohibition in this section. She has thus forfeited any contention based on Penal Code section 3. (See People v. Gurule (2002) 28 Cal.4th 557, 618; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159.) We find no constitutional violation and shall affirm the judgment.
Discussion
A fine or assessment will violate the prohibition against ex post facto laws when imposed retroactively if it is intended to operate as punishment, or is so punitive in effect that it operates as a penalty. (Trop v. Dulles (1958) 356 U.S. 86, 95-96 [2 L.Ed.2d 630, 639-640]; People v. Alford (2007) 42 Cal.4th 749, 755 (Alford).)
Government Code section 70373, subdivision (a)(1), which became effective on January 1, 2009, states: “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.” (See Stats. 2008, ch. 311, § 6.5.)
The language of Government Code section 70373 closely resembles that of the court security fee required in Penal Code section 1465.8, which the California Supreme Court held is not a prohibited ex post facto law and can be applied to any conviction after the statute’s operative date, even if the offense was committed before the operative date. (Alford, supra, 42 Cal.4th at p. 752.)
At the time Alford was decided, Penal Code section 1465.8, subdivision (a)(1), stated: “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, 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.” (Stats. 2003, ch. 159, § 25.)
In holding that Penal Code section 1465.8 is not an ex post facto law, the Supreme Court relied on the following: (1) The nonpunitive objective of maintaining “adequate funding for court security” purposes; (2) the statute is part of a broader legislative scheme in which civil fees were also raised; (3) the Legislature referred to the $20 amount due upon conviction by a nonpunitive term, labeling it as a “fee” rather than a “fine”; (4) the $20 fee is relatively small, and less onerous than other consequences that have been held to be nonpunitive; and (5) the amount of the fee is not dependent on the seriousness of the offense. (Alford, supra, 42 Cal.4th at pp. 755-759.)
These same factors apply to the Government Code section 70373 assessment. The stated purpose of the assessment is to ensure and maintain adequate funding for court facilities, not to punish. (Gov. Code, § 70373, subd. (a)(1).) It is part of a broader legislative scheme that increased filing fees in civil, family, and probate cases. (Legis. Counsel’s Dig., Sen. Bill No. 1407 (2007-2008 Reg. Sess.); see, e.g., Gov. Code, §§ 70611, 70613, subd. (a), 70621, 70654; Prob. Code, § 7660.) In addition, the $30 amount is relatively small, is described as an “assessment” not a fine or a penalty, and is not dependent on the seriousness of the offense.
As with the court security fee in Alford, these factors demonstrate that the Government Code section 70373, subdivision (a)(1), assessment is nonpunitive and, therefore, is not a prohibited ex post facto law. (See People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 3-4 [holding the retroactive application of Government Code section 70373 does not violate ex post facto laws].)
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 27 days of presentence custody, is entitled to 26 days of conduct credits.
Disposition
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.