Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03-29795
BUTZ, J.Defendant Ron Marcel McCutcheon previously pleaded no contest to one count of possession of methamphetamine. Initially sentenced to Proposition 36 probation, and later to drug court, on at least 10 occasions the probation department petitioned to revoke defendant’s probation when he violated the terms of his probation. The final violation came when defendant refused to submit to a drug test. Following a contested hearing, the trial court revoked defendant’s probation and sentenced him to 16 months in state prison.
Defendant appeals claiming that there was insufficient evidence he violated his probation, the $20 court security fee he was ordered to pay violates the prohibition against ex post facto laws and retroactive application of the Penal Code, and the trial court miscalculated his presentence custody credits. We shall affirm the judgment.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends there was insufficient evidence that he violated his probation because “[t]here is no evidence he was required to submit to testing at the direction of anyone other than a probation officer. Nor is there any evidence [defendant] knew he was required to submit to testing by any law enforcement officer other than a probation officer.” Defendant’s argument is without merit.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence” supporting the trial court’s finding. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The evidence here is undisputed.
Under the terms of his probation, defendant was to submit “to periodic drug testing as directed by the treatment program and the Probation Department.” On January 16, 2007, defendant’s probation officer directed Deputy Sheriff Philip Shannon to test defendant for drugs. Deputy Shannon went to defendant’s residence and told defendant he had been sent by defendant’s probation officer to test defendant for drugs. Deputy Shannon repeatedly asked defendant to submit to a drug test and defendant repeatedly refused. Deputy Shannon told defendant that if he refused to submit to a drug test, Deputy Shannon would have to arrest him. Defendant said Deputy Shannon was “going to have to arrest him.”
Deputy Shannon acted at the direction of defendant’s probation officer when he asked defendant to submit to a drug test. Moreover, Deputy Shannon told defendant he was acting at the probation officer’s behest. Defendant’s refusal was thus a knowing violation of the terms of his probation. Accordingly, we find no error.
II. Court Security Fee
A. Ex Post Facto Laws
Defendant argues the trial court improperly ordered a fee under Penal Code section 1465.8, subdivision (a)(1), which imposes a $20 security fee upon all criminal convictions to “ensure and maintain adequate funding for court security.” The statute became effective on August 2, 2003 (added by Stats. 2003, ch. 159, § 25), and defendant’s offenses occurred on March 3, 2003. Thus, he argues the fee violates the constitutional prohibition on ex post facto laws because it made the punishment for his crime more burdensome than it was at the time it was committed.
Undesignated statutory references are to the Penal Code.
The California Supreme Court recently resolved this issue, and not in defendant’s favor. It held in People v. Alford (2007) 42 Cal.4th 749, 757 (Alford) that the “court security fee is not so punitive in nature or effect that it constitutes punishment.” The high court pointed to the statute’s legislative history which demonstrates that the court security fee was enacted as part of an emergency budgetary measure for the nonpunitive purpose of ensuring adequate funding for court security. (Alford, at pp. 756-757, citing People v. Wallace (2004) 120 Cal.App.4th 867, 874-878.) The court also determined that the fee does not impose an affirmative disability or restraint, noting that the impact of the $20 fee is minimal in comparison to other registration and testing requirements that have survived ex post facto challenges. (Alford, supra, 42 Cal.4th at pp. 757-759.) Thus, the $20 court security fee does not violate the ex post facto clauses of either the state or federal Constitutions. (Alford, at p. 759; accord, Wallace, supra, 120 Cal.App.4th at p. 878.)
B. Retroactivity
Defendant also contends that imposition of the court security fee violates section 3, which states: “No part of [the Penal Code] is retroactive, unless expressly so declared.” The People, represented by the Attorney General, concede the statute is not to be applied retroactively. We do not accept the People’s concession.
The California Supreme Court also held in Alford that the court security fee may be imposed on a defendant whose crime occurred before the effective date of the statute because the history, purpose, and impact of the law reveals that the Legislature intended section 1465.8 to apply to “all convictions after its operative date.” (Alford, supra, 42 Cal.4th at p. 754.) The court thus concluded that section 3 is not implicated. (Alford, at p. 755.) Consequently, we reject defendant’s claim that section 1465.8 was not meant to be applied retroactively.
III. Presentence Credits
Defendant also asks this court to correct what defendant deems to be a miscalculation in his presentence custody and work/conduct credits. The People argue this issue is more appropriately addressed to the trial court and we agree.
As a general rule, a defendant should have the trial court correct a miscalculation of presentence custody credits. (§ 1237.1.) If there are other appellate issues to be decided, however, the appellate court may resolve the custody credits issue in the interests of judicial economy. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428, italics added.) Nevertheless, the appellate court is not obligated to consider a defendant’s claim even if he raises other issues on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101 [the court of appeal may consider defendant’s claim of miscalculated presentence credits but is not obligated to do so].)
If we were inclined to resolve defendant’s claim here, the record on appeal is insufficient. The evidence cited by defendant in support of his claim that he is entitled to 387 days of presentence credit, in fact does not support his claim. Moreover, on this record, we cannot ascertain with sufficient certainty whether there was an error in calculation, and if there was, what the correct calculation of credits would be.
Given the state of the record, defendant’s claim is more appropriately raised before the trial court. The trial court is in a better position to assess the claim of error and accurately calculate the credits to which defendant claims he is entitled.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., RAYE, J.