Opinion
B193013
5-10-2007
THE PEOPLE, Plaintiff and Respondent, v. JUAN A. PEREZ, Defendant and Appellant.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
This appeal involves sentencing issues following a 2003 plea to receiving stolen property (Pen. Code, § 496, subd. (a)) in 2002 and the subsequent revocation of probation in 2006. We shall strike imposition of a $20 court security fee and otherwise affirm the judgment.
The preliminary hearing was held December 11, 2002. The transcript of that hearing reveals that the driver of the subject truck and trailer had parked it in front of his sisters home the night before he was to drive the shipment to Washington. When he awoke early the next morning, October 11, 2002, the truck and trailer were gone. By chance, a California Highway Patrol investigator of cargo theft observed the truck and trailer about 5:50 a.m. that day near Hoover and Washington. The investigator observed the truck being driven a short distance to a self-storage facility at about 8 a.m.; appellant motioned the truck in and punched a code to let it enter. While appellant walked towards the truck, he was arrested along with the driver and others. Appellant admitted to the arresting officers that he knew the truck and trailer were stolen and that he was paid $100 to help unload the truck.
The pre-plea report was not in the courts file and the judge borrowed counsels copy.
A pre-plea report was prepared in November 2002. After several continuances, on March 25, 2003, appellant pleaded nolo contendere to two counts of receiving stolen property. The plea agreement, for a plea to this case and another, included an agreement appellant was to cooperate with the CHP. Appellant was to receive the high term of three years, with execution of sentence suspended and formal felony probation for three years.
On January 14, 2004, over nine months after his plea, appellant received two concurrent upper term 3-year prison terms and was ordered to make restitution to the victim. Execution of the sentences was suspended and appellant was placed on formal probation, with conditions including restitution to the victim.
On November 3, 2005, appellant was picked up or surrendered on a bench warrant; the trial court ordered a supplemental probation report. After many continuances, the same court that took the plea and imposed probation conducted a probation revocation hearing on July 24, 2006.
The reporters transcript states the date was January 24. The clerks transcript uses July 24.
Appellant had been cooperating as an informant for the California Highway Patrols Cargo Theft Interdiction Program when he attempted another receipt of stolen property. The episode occurred on October 29, 2005, when without previously notifying the CHP of the specifics, appellant drove a tractor pulling a semi-trailer full of stolen freight, including televisions. He was the only one in that tractor-trailer.
Appellant called the investigating officer and mentioned that something might be going on and he was going to check something out. Appellant did not say he was going to be driving a stolen truck and did not tell the officer locations, license plates, where he was at all times, who he was meeting with and what type of merchandise was involved, all part of his agreement with the officer. Appellant was the only person in the stolen truck and the officer believed "he saw the opportunity to be involved in something and not get caught . . . ." Appellant admitted he knew the televisions were stolen. After he was detained, appellant asked if they would let him go if he took them to a possible tractor-trailer stolen in Fontana. He also claimed he was "working for you guys" and the investigator knew what he was doing. That investigator seemed "surprised" when he later arrived on the scene and saw appellant.
The officer suspected a similar ruse in December 2003, soon after appellants plea; appellant was arrested but the charges were dropped for insufficient evidence. He was driving his own truck at that time, traveling close to a stolen tractor-trailer.
In addition, appellant was found in a truck loaded with electronics on December 29, 2005.
Appellants defense at the revocation hearing was that appellant was helping the investigating officer, as planned, in trying to arrest a particular person. According to appellant, the investigator "gave me the green light." Appellant said he gave the officer three loads in October and got paid several thousand dollars for that. He had planned to "find an excuse to call [the investigating officer] the way I always do" when he was arrested.
Following the October incident, in November 2005 the trial court ordered a supplemental probation report; the record does not reveal whether that report was ever supplied to the court. The court believed the officers who testified and did not believe appellant, stating "He called [the officer] to protect himself in case he gets busted so he could claim that he was actually working on the deal."
The trial court concluded appellant had violated his probation on both cases to which he had pleaded. Appellant waived time for sentencing, the court revoked probation, and the 3-year concurrent terms were executed. Moreover, appellant was ordered to pay various fees and fines, including a $20 court security assessment pursuant to section 1465.8, subdivision (a)(1), the imposition of which is challenged on appeal.
The court also imposed a $10.00 "theft fine"(Pen. Code § 1202.5), which respondent concedes was improper, as well as a $20.00 court security fee (contested on appeal); and a $200.00 probation revocation fine.
CONTENTIONS ON APPEAL
Appellant contends: 1. Appellants sentence must be reversed because the trial court did not order a probation report or consider whether reinstatement of probation was an appropriate disposition before executing the suspended sentence. 2. Appellants prejudgment custody credits must be recalculated. 3. The "theft fine" imposed must be stricken because it was not authorized by statute. 4. The $20 court security charge imposed must be stricken because the charge was created after the commission of appellants offense and thus is not authorized by statute.
Appellant concedes the validity of the custody credits in his reply brief, so we need not consider that issue.
Respondent concedes the validity of this contention but notes that neither the courts minutes nor the abstract of judgment contains the "theft fine" so there is nothing to be amended.
DISCUSSION
1. The trial courts failure to order a probation report was harmless error, as there is no indication the trial court did not believe it had discretion in its sentencing decision.
Appellant asks this court to reverse the revocation of probation and remand for an updated probation report and an exercise of discretion whether to reinstate probation on the same or modified terms. Respondent does not contend the issue was waived for not raising the issue in the trial court.
Appellant contends that both Penal Code section 1203.2, subdivision (b), and California Rules of Court, rule 4.411, subdivision (c), require ordering an updated probation report for sentencing proceedings that "occur a significant period of time after the original report was prepared" (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins)) and that the time between the November 2002 report and the July 2006 probation revocation hearing is a "significant period of time." In addition, appellant contends the trial court did not demonstrate an awareness on the record of its discretion to reinstate probation so the matter must be reversed for an updated report and exercise of discretion.
Dobbins, supra, 127 Cal.App.4th 176 is on point. Dobbins initial probation report was dated July 2003, shortly before his first sentencing hearing. He pled no contest and pursuant to a negotiated plea agreement, was sentenced to the 16-month lower term. Execution of sentence was suspended and probation was granted. He committed new offenses and at a hearing in March 2004 the court ordered him to serve the 16-month sentence. (Id. at p. 178.)
The Dobbins court, supra, 127 Cal.App.4th 176, at page 181, concluded the trial court erred in not ordering a new probation report when the initial report was eight months before resentencing. Nevertheless, the court found such error to be harmless in that "there is no doubt the result would have been the same if a supplemental probation report had been prepared." (Id. at p. 183.)
We come to the same conclusion in the case at bench. The trial court had seen appellant throughout this process, taking his plea in 2003, sentencing him and suspending sentence in 2005, and conducting the probation revocation hearing in 2006. The court was aware of appellants cooperation with the CHP following his plea.
A probation report filed in January 2004 reveals appellant is a "major player" and "well-known to everyone that works cargo theft and has been known for many, many years." The report stated appellant was "a career thief at a very high level. The trial court did not believe appellants defense and indeed believed that appellant attempted to create a defense for his criminal act by placing a vague call to his law enforcement contact. Moreover, unlike People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1246 ["Because the trial court misunderstood the scope of its discretion to grant probation, we remand the matter for resentencing"], there is no indication the trial court in the case at bench did not realize it had discretion to order probation, another of appellants contentions.
Error if any in not ordering or considering an updated probation report is harmless under People v. Watson (1956) 46 Cal.2d 818, 836.
"There is a reasonable probability of a more favorable result within the meaning of Watson when there exists `at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result. (People v. Watson, supra, 46 Cal.2d at p. 837.)" (People v. Mower (2002) 28 Cal.4th 457, 484.)
2. The court security fee imposed must be stricken.
Appellant asks this court to strike the $20 court-imposed security fee, which was enacted pursuant to Penal Code section 1465.8, subdivision (a)(1) (Stats. 2003, ch. 159, § § 25, 27, pp. 1. 23, 24), effective August 17, 2003, months after appellant committed the October 2002 offense to which he pleaded and after his plea. He relies on Penal Code section 3, which was enacted in 1872 and provides "No part of it [the Penal Code] is retroactive, unless expressly so declared."
As Division Seven of the court explained regarding statutory retroactivity, "A statute or ordinance has retroactive effect if it substantially changes the legal effect of past events. [Citations.] Statutes do not operate retroactively unless the legislative body enacting the measure clearly indicates its intent that they do so. [Citations]; see Civ. Code, § 3 [no part of the Civil Code is retroactive `unless expressly so declared].) A legislative bodys intent with regard to prospective or retroactive application may be determined either from the language in the statute itself or, if the extrinsic sources are sufficiently clear, legislative history. [Citations.] The general presumption against retroactive application of statutes is subordinate to `the transcendent canon of statutory construction that the design of the Legislature be given effect. [Citation.]" (Plotkin v. Sajahtera, Inc. (2003) 106 Cal.App.4th 953, 960.)
Respondent argues that the legislative history demonstrates that retroactive application was intended by the Legislature and thus permissible pursuant to Penal Code section 3. However, none of the language quoted or authority cited supports that argument. Labeling the charge as a "fee" for a nonpunitive purpose (assuming arguendo the purpose was not punitive) and the passage of urgency legislation to help balance the budget, without more, do not support an intent by the Legislature to apply the statute retroactively.
People v. Wallace (2004) 120 Cal.App.4th 867, 871-874, upheld the $20 security charge against an ex post facto claim. In so doing, the Wallace court, supra, 120 Cal App.4th 867, 874-879, concluded the "modest" fee was a nonpunitive user fee for those who benefit from safe facilities.
In May 2006, our Supreme Court granted review in People v. Alford (2006) 137 Cal.App.4th 612 (S142508) and in People v. Carmichael (2006) 135 Cal.App.4th 937 (S141415), consideration deferred pending disposition in Alford, which consider the retroactivity of section 1465.8 through the prisms of the ex post fact constitutional provisions and section 3 of the Penal Code.
Neither are we convinced by respondents argument that the $ 20 surcharge for courtroom security is "not a substantial change in the legal effect of committing a criminal act" and is similar to the AIDS testing mandate applied retroactively in People v. Adames (1997) 54 Cal.App.4th 198, 214. (See also People v. Walker (1991) 54 Cal.3d 1013, 1027 ["In the context of felony pleas, a $100 fine is not, as a matter of law, `significant."]; People v. Turner (2002) 96 Cal.App.4th 1409, 1414 [judgment is modified by imposing mandatory charges, including a $50 laboratory analysis fee pursuant to Health and Saf. Code § 11372.5, a $50 penalty assessment pursuant to Pen. Code § 1464, and a $35 penalty assessment pursuant to Gov. Code § 76000].) Rather, we view the $20 charge as a fine, which is a traditional form of punishment (People v. Wallace, supra, 120 Cal.App.4th 867, 877) and "substantial" within the instant context, a decision on retroactivity.
DISPOSITION
The imposition of the $20 court security fee is stricken. In all other respects the judgment and order are affirmed.
We concur:
RUBIN, J.
BOLAND, J.