Opinion
F061606 Super. Ct. No. MF008505A
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. ROGELIO ACOSTA PENA, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
On March 12, 2009, Rogelio Acosta Pena was convicted of violating Penal Code section 4502, subdivision (b) (manufacture of a weapon while confined in a penal institution). On that date, section 1465.8 required a $20 fee be imposed for court security. After a successful appeal, Pena was re-sentenced on November 12, 2010. On that date, section 1465.8 required a $30 fee be imposed for court security. The trial court imposed the $30 fee. Pena argues the fee should have been $20. He is correct.
In reviewing the record, it is unclear whether appellant's true name is Rogelio Acosta Pena or Rogelio Pena Acosta. The abstract of judgment in the present case and our previous opinion (People v. Pena (May 6, 2010, F057883) [nonpub. opn.]) refer to appellant as Rogelio Acosta Pena. Therefore, for the sake of consistency and clarity, we will refer to appellant as Rogelio Acosta Pena.
All further statutory references are to the Penal Code unless otherwise stated.
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Section 1465.8, subdivision (a)(1) states that a fee "shall be imposed on every conviction for a criminal offense." The Supreme Court has held that the date of conviction is the controlling date, not the date of the offense. (People v. Alford (2007) 42 Cal.4th 749, 754.) Appellate courts have used the Alford rational to reach the same result when construing Government Code section 70373, which imposes an assessment to fund court facilities upon conviction of a criminal offense. (People v. Phillips (2010) 186 Cal.App.4th 475, 478-479; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.) Finally, People v. Davis (2010) 185 Cal.App.4th 998 held that the date of conviction is the operative date for determining whether the Government Code section 70373 fee can be imposed, not the date of sentencing. (Davis, at p. 1001.)
The People offer no argument to suggest that Davis was wrongly decided, and we can conceive of none. Since Davis, Castillo, and Phillips are all based on the reasoning of Alford, and the statutes are remarkably similar, their analyses are equally applicable to section 1465.8. Accordingly, since Pena was convicted on March 12, 2009, and section 1465.8 imposed a fee of only $20 on that date, the trial court erred in imposing the $30 fee at sentencing.
Pena also argues, and the People concede, that the abstract of judgment must be amended to reflect the correct case number of his prior conviction. The abstract of judgment lists the prior conviction as Los Angeles Superior Court case No. LA136661. The correct case number is LA036661.
DISPOSITION
The portion of the judgment imposing a fee pursuant to section 1465.8 in the amount of $30 is vacated, and the trial court is directed to impose a section 1465.8 fee of $20. The trial court also is ordered to cause a corrected abstract of judgment be prepared reflecting the proper case number for the prior conviction. The judgment is affirmed in all other respects.
CORNELL, Acting P.J.
WE CONCUR:
POOCHIGIAN, J.
FRANSON, J.