Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F07903646, F09901460, F09901510, F09901615. Don D. Penner, Judge.
Rudy Kraft, 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, Senior Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Kane, J.
STATEMENT OF THE CASE
On May 2, 2007, a complaint was filed in case No. F07903646 charging appellant, Geraldo Navarro, with felony vandalism (Pen. Code, § 594, subd. (a), count one), misdemeanor petty theft (Pen. Code, § 484, subd. (a), count two) and feloniously receiving stolen property (Pen. Code, § 496, subd. (b), count three). On May 15, 2007, appellant waived his constitutional rights and entered into a plea agreement pleading no contest to vandalism, which would be reduced to a misdemeanor upon successful completion of probation. In exchange for his admission, counts two and three were dismissed.
On March 10, 2009, a complaint was filed in case No. F09901460 charging appellant with committing three felonies on February 15, 2009: first degree burglary (Pen. Code, § 459, count one) and theft from an elder adult (Pen. Code, § 368, subd. (d), counts two & three). On June 23, 2009, appellant waived his constitutional rights, entered into a plea agreement, and he pled guilty to first degree burglary. The remaining allegation was dismissed.
On March 17, 2009, a complaint was filed in case No. F09901615 charging appellant with first degree residential robbery (Pen. Code, § 211, counts one & three) and first degree residential burglary (Pen. Code, § 459, counts two & four). The burglary allegations included enhancements for victims 65 years of age or older (Pen. Code, § 667.9, subd. (a)). On June 23, 2009, appellant waived his constitutional rights and pursuant to a plea agreement and pled guilty the two first degree residential robbery allegations and the age enhancements. The remaining allegations were dismissed.
On March 23, 2009, a complaint was filed in case No. F09901510 charging appellant with first degree burglary (Pen. Code, § 459, counts one & four), theft from an elderly adult (Pen. Code, § 368, subd. (d), counts two & five), and grand theft of a firearm (Pen. Code, § 487, subd. (d)). On June 23, 2009, appellant waived his constitutional rights and pursuant to a plea agreement and pled guilty to the one count of residential burglary (count four) and one count of theft from an elderly adult (count five). The remaining allegations were dismissed.
On August 18, 2009, the trial court sentenced as follows: in case No. F09901615 for six years for robbery in count one plus one year for the elder enhancement and one year four months for first degree residential robbery in count three plus four months for the elder enhancement; in case No. F09901460 one year four months for first degree residential burglary in count one; in case No. F09901510 one year four months for first degree residential burglary in count four; in case No. F07903646 a concurrent two-year sentence. Appellant’s total prison term is eleven years four months. The court imposed a criminal conviction assessment of $170 for each complaint pursuant to Government Code section 70373.
Unless otherwise designated, statutory references are to the Government Code.
Appellant contends section 70373 can only apply to violations of the Vehicle Code. We reject this contention. Appellant also contends that because the fine is $30, and can only apply to his five convictions in 2009, the correct amount of the fine is $150, not $170. Appellant also argues the assessment is unauthorized and must be stricken for his offenses in 2007 because the crimes occurred before section 70373’s effective date and the statute operates prospectively. Respondent concedes the latter two points. We agree and will modify the judgment to strike the assessment for appellant’s convictions in 2007 and to set his section 70373 fee at $150.
Whether section 70373 “was intended to have retroactive application … is a question of statutory interpretation reviewed de novo on this appeal. [Citations.]” (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 548-549.) It is undisputed that the criminal offenses resulting in imposition of the assessment were committed. Therefore, it is unnecessary to set forth the factual circumstances of these crimes.
DISCUSSION
Section 70373 applies to offenses in addition to those in Vehicle Code.
Appellant contends section 70373 applies only to violations of the Vehicle Code. Appellant argues the statute is susceptible to two equally valid grammatical interpretations and the phrase “‘every conviction for a criminal offense’” is modified by the reference in the statute to “‘including a traffic offense.’”
Subdivision (a)(1) of section 70373 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 and in the amount of thirty-five dollars ($35) for each infraction.” (§ 70373, subd. (a)(1).)
We fail to find any ambiguity in the statute. The statute clearly applies to “every conviction for a criminal offense” and later includes traffic offenses within that very broad definition. The statute expressly applies to felonies, misdemeanors, and infractions. The statute only expressly excludes parking offenses as defined in Penal Code section 1463, subdivision (i).
Penal Code section 1463 sets forth the distribution of fines and forfeitures imposed and collected for crimes. Subdivision (h) of Penal Code section 1463 defines the term offense as follows: “‘Offense’ means any infraction, misdemeanor, or felony ….” We must apply the plain meaning of a statute. (People v. Warner (2006) 39 Cal.4th 548, 554; In re Jennings (2004) 34 Cal.4th 254, 263.) The plain meaning of section 70373 is for those convicted of criminal offenses, including felonies, misdemeanors, and infractions, to pay an assessment. The only exception made is for certain parking offenses. We find section 70373 operative for appellant’s felony convictions in 2009.
Section 70373 operates prospectively.
“A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]” (People v. Hayes (1989) 49 Cal.3d 1260, 1274.) Determining if a statute operates retroactively is distinct and separate from assessing whether it violates the prohibitions against ex post facto laws. (See, e.g., People v. Alford (2007) 42 Cal.4th 749, 753-759 [Legislature intended Pen. Code, § 1465.8 to operate retroactively & this statute does not violate ex post facto prohibitions] (Alford).)
Appellant argues that section 70373 operates prospectively because the statute does not contain a declaration of retroactivity and the statutory language and legislative history do not support a clear implication in favor of retroactive application. We agree.
The general rule requiring contemporaneous objection does not apply to unauthorized sentences. (People v. Scott (1994) 9 Cal.4th 331, 354.) Therefore, appellant’s failure to object to imposition of the assessment during the sentencing hearing did not result in forfeiture of the point on appeal. (People v. Chambers (1998) 65 Cal.App.4th 819, 823.)
In 2004, the Judicial Council (JC) approved the Trial Court Five-Year Capital Outlay Plan (Capital Outlay Plan). The Capital Outlay Plan uses a systematic methodology to prioritize necessary court facility improvement projects into five groups: immediate, critical, high, medium and low. It presents annual estimated budget requirements to fund all proposed projects over a 10-year implementation period. In April 2007, the JC adopted an updated Capital Outlay Plan. (Cal. Bill Analysis, Assem. Floor, Sen. Bill No. 1407 (2007-2008 Reg. Sess.) Aug. 22, 2008.)
Section 70373 was enacted as part of Senate Bill No. 1407 (2007-2008 Reg. Sess.) enacted as Stats. 2008, ch. 311, § 6.5 on September 26, 2008, and became effective on January 1, 2009. In relevant part, Senate Bill No. 1407 establishes the Immediate and Critical Needs Account (ICNA) of the State Court Facilities Construction Fund (SCFCF). The proceeds of the ICNA shall be used only for specified purposes related to the planning, design, construction, rehabilitation, renovation, replacement, acquisition, leasing, financing, or repayment of debt for acquisition of court facilities. (Cal. Bill Analysis, Assem. Floor, Sen. Bill No. 1407 (2007-2008 Reg. Sess.) supra.) “To ensure and maintain adequate funding for court facilities,” section 70373 imposes a $30 assessment on every conviction for a felony or misdemeanor criminal offense and $35 for each infraction, with certain limited exceptions. (§ 70373, subd. (a)(1).) The amount collected from the assessment is to be deposited in the ICNA. (Sen. Rules Com., Off. of Sen. Floor Analyses, Cal. Bill Analysis, Sen. Floor, Sen. Bill No. 1407 (2007-2008 Reg. Sess.) Aug. 29, 2008.) The assessment “is but one component of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised. [Citations.]” (People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4 [§ 70373 does not violate ex post facto prohibitions] (Brooks).) One of the Assembly amendments to Senate Bill No. 1407 removed an urgency clause from the proposed legislation. (Sen. Rules Com., Off. of Sen. Floor Analyses, Cal. Bill Analysis, Sen. Floor, Sen. Bill No. 1407 (2007-2008 Reg. Sess.) supra.)
Recognizing that section 70373 does not contain an express declaration of retroactivity, respondent relies on the language of the statute and its legislative history to support its position in favor of retroactive application. We are not convinced.
Respondent argues the phrase “every conviction for a criminal offense” in section 70373, subdivision (a)(1), evidences retroactive intent. In our view, it simply evidences the intent to apply the assessment broadly, not to apply it to offenses that were committed before the statute’s effective date. Respondent also relies on the words “immediate” and “critical” contained in the title of the fund into which revenue derived from the assessment is to be placed (i.e. the ICNA) as proof of retroactive intent. But this contention fails to account for the fact that “immediate” and “critical” are the two highest designations in the Capital Outlay Plan. Use of the words “immediate” and “critical” in the title of INCA only indicates the Legislature intended revenue from the assessment to be used for court facility needs that have been previously identified as most pressing.
The legislative history of section 70373 reflects that the Assembly amended Senate Bill No. 1407 to remove an urgency clause. We find this act significant. In Alford, supra, 42 Cal.4th 749, our high court relied on the fact that Penal Code section 1465.8 was created by an urgency statute that was enacted as part of an emergency budgetary measure for the nonpunitive purpose of funding court security to conclude the Legislature intended the court security fee at issue to be applied retroactively. (Id. at p. 754; see also Brooks, supra, 175 Cal.App.4th Supp. at p. 6.) In contrast here, an urgency clause was removed and Senate Bill No. 1407 was enacted during the 2007-2008 Regular Session. This distinguishes the legislative history of section 70373 from that of Penal Code section 1465.8.
Brooks, supra, 175 Cal.App.4th Supp. 1, observed that the language of section 70373 closely resembled Penal Code section 1465.8. (Id. at p. 5.) We do not disagree with this observation or quarrel with Brooks’s holding that section 70373 does not violate the ex post facto prohibitions. We merely find that there are significant differences between the legislative histories of section 70373 and Penal Code section 1465.8.
Since section 70373 does not contain a declaration of retroactivity and the statutory language and legislative history do not clearly indicate retroactive intent, we conclude the general presumption in favor of prospective application is not overcome. Therefore, no assessment can lawfully be imposed in this case for appellant’s offenses in 2007 because they were committed prior to January 1, 2009.
DISPOSITION
The judgment is modified to strike any assessment imposed pursuant to Government Code section 70373, subdivision (a)(1) for appellant’s 2007 offenses. Appellant’s fine shall be reduced pursuant to this statute to $150. As modified, the judgment is affirmed. On remand, the clerk of the superior court is ordered to prepare an amended abstract of judgment reflecting this modification and to transmit it to the appropriate authorities.