Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF113739A. Gary T. Friedman, Judge.
Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Catherine Chatman and George M. Hendrickson, Deputy Attorney General, for Plaintiff and Respondent.
Before Vartabedian, A.P.J., Wiseman, J., and Levy, J.
A jury convicted appellant Calbert James Peterson of commission of a lewd or lascivious act against a child under 14 years of age (Pen. Code, § 288, subd. (a); count 2), commission of a lewd or lascivious act against a child 14 or 15 years of age by a person at least 10 years older than the child (§ 288, subd. (c)(1); count 3) and sexual intercourse with a child under 16 years of age (§ 261.5, subd. (d); count 4). The jury found true an allegation that in committing the count 4 offense, appellant personally inflicted great bodily injury (§ 12022.7). The court imposed a prison term of 10 years, consisting of the eight-year upper term on count 2, one year on the count 4 substantive offense and one year on the count 4 great bodily injury enhancement. On count 3, the court imposed the three-year upper term and stayed execution of that term pursuant to section 654. The court also imposed a $200 restitution fine (§ 1202.4); a parole revocation fine in the same amount, which it stayed pending successful completion of parole; and, on counts 2, 3 and 4, respectively, section 290.3 fines of $300, $500 and $500 and penalty assessments of $780, $1,300 and $1,300. The court stayed execution of the count 3 fine and assessments, pursuant to section 654.
Except as otherwise indicated, all statutory references are to the Penal Code.
The $780 in penalty assessments imposed in connection with the count 2 section 290.3 fine consisted of the following individual assessments: $300 (§ 1464, subd. (a)), $210 (Gov. Code, § 76000, subd. (a)), $30 (Gov. Code, § 76104.6), $30 (Gov. Code, § 76104.7), $60 (§ 1465.7) and $150 (Gov. Code, § 70372, subd. (a)). The $1,300 in penalty assessments imposed in connection with each of the count 3 and 4 section 290.3 fines consisted of the following individual assessments: $500 (§ 1464, subd. (a)), $350 (Gov. Code, § 76000, subd. (a)), $50 (Gov. Code, § 76104.6), $50 (Gov. Code, § 76104.7), $250 (Gov. Code, § 70372, subd. (a)), $100 (§ 1465.7) and $250 (Gov. Code, § 70372, subd. (a)).
Although included in “assessments” imposed by the court, section 1465.7 calls for the imposition of a “state surcharge.” (§ 1465.7, subd. (a)).)
See footnote 2.
On appeal, appellant contends, and the People concede, as follows: (1) the section 290.3 fines imposed in connection with counts 2 and 3 exceeded the amount allowed under the version of the statute in effect at the time of the commission of the count 2 and count 3 offenses, and therefore those fines, and the penalty assessments computed on the basis of those fines, violated constitutional prohibitions against ex post facto laws; (2) the penalty assessments imposed pursuant to Government Code sections 76104.6 and 76104.7 in connection with counts 2 and 3 were not authorized; and (3) neither the section 290.3 fine nor the accompanying assessments imposed in connection with count 4 were authorized. We agree. In addition, the imposition, in connection with count 2, of the section 1465.7 surcharge and the Government Code section 70372 penalty assessment violated constitutional prohibitions against ex post facto laws. We will modify the judgment accordingly.
We notified the parties, pursuant to Government Code section 68081, that we proposed to strike the section 1465.7 surcharge and the Government Code section 70372 penalty assessment imposed in connection with count 2, and invited briefing on the matter. Neither party responded to that invitation.
DISCUSSION
Section 290.3 Fines - Counts 2 and 3
Appellant first argues that the imposition of section 290.3 fines in connection with the count 2 and count 3 offenses in the amounts of $300 and $500, respectively, violated constitutional prohibitions against ex post facto laws. We agree.
Appellant makes this same argument with respect to the section 290.3 fine imposed in connection with count 4. However, because, as we explain below, we conclude the court erred in imposing a section 290.3 fine in any amount in connection with the count 4 conviction, we need not address appellant’s constitutional challenge to the amount of the fine.
The ex post facto clause of the United States Constitution prohibits legislation which, among other things, “‘makes more burdensome the punishment for a crime, after its commission....’” (Collins v. Youngblood (1990) 497 U.S. 37, 42.) “California’s ex post facto law is analyzed in the same manner as the federal prohibition.” (People v. Alford (2007) 42 Cal.4th 749, 755.)
Section 290.3 currently provides that every person convicted of an offense specified in section 290 must pay “a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction....” Both the count 2 offense--commission of a lewd or lascivious act against a child under 14 years of age, in violation of section 288, subdivision (a)--and the count 3 offense--commission of a lewd or lascivious act against a child 14 or 15 years of age by a person at least 10 years older than the child, in violation of section 288, subdivision (c)(1)--are listed in section 290. (§ 290, subd. (c).) And as indicated above, the court imposed section 290.3 fines in connection with counts 2 and 3 in amounts authorized under the current version of the statute.
However, appellant was charged with, and convicted of, committing the count 2 offense between January 1, 2002, and May 3, 2003, and the count 3 offense between May 4, 2003, and May 3, 2004. And between 1995 and September 19, 2006, the fine under section 290.3 was $200 for the first conviction and $300 for each subsequent conviction. (Stats. 1994, ch. 867, § 3.5; Stats. 2006, ch. 337, § 18, effective Sept. 20, 2006.) Because the fine in section 290.3 is punitive on its face (§ 290.3 [a defendant convicted of a specified offense “shall... be punished by a fine”]), the imposition of section 290.3 fines in connection with counts 2 and 3 in excess of the amounts allowed under the statute at the time of the commission of those offenses violated constitutional prohibitions against ex post facto laws. Accordingly, as the parties agree, those fines must be reduced to the amounts authorized by the version of section 290.3 in effect at the time of the commission of the offenses giving rise to the fines.
Government Code sections 76104.6 and 76104.7 Penalty Assessments
Appellant also argues, and the People again concede, that Government Code sections 76104.6 and 76104.7 became effective, respectively, November 3, 2004, and July 12, 2006, after the commission of the instant offenses, and thus, because neither statute was in effect at the time of the instant offense, the court erred in imposing assessments under those statutes. We agree. In People v. Batman (2008) 159 Cal.App.4th 587, the court held that the Government Code section 76014.6 penalty assessment is punitive in nature and therefore its imposition violates the constitutional prohibition of ex post facto laws where the defendant’s criminal act preceded its enactment. The same analysis applies to the Government Code section 76014.7 penalty assessment. Therefore, the court erred in imposing the penalty assessments under Government Code sections 76014.6 and 76014.7. Accordingly, those assessments must be stricken.
Section 290.3 Fines - Count 4
Next, the parties agree that the offense of which appellant stands convicted in count 4--sexual intercourse with a child under 16 years of age, in violation of section 261.5--was not at the time of its commission, and is not now, one of the offenses specified in section 290, and therefore the court erred in imposing a section 290.3 fine in connection with count 4.
However, the People argue, as best we can determine, as follows: Sentence on count 3, including the section 290.3 fine imposed in connection with count 3, had been stayed pursuant to section 654 because the count 3 and 4 offenses were part of an indivisible course of conduct; the count 4 fine must be stricken; therefore, the stay on the count 3 fine should be lifted. There is no merit to this contention.
Section 654 provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term for imprisonment, but in no case shall the act or omission be punished under more than one provision.” Thus, “section 654 proscribes double punishment for multiple violations of the Penal Code based on the ‘same act or omission.’” (People v. Siko (1988) 45 Cal.3rd 820, 822.) “If... a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed.” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
The People do not contend the court erred in staying the sentence imposed on count 3 under section 654. And the People cite no authority, and we are aware of none, allowing the court to stay part, but not all, of a sentence stayed pursuant to section 654. The entire sentence imposed on count 3 must be stayed, including the section 290.3 fine. (§ 654.)
Government Code section 70372 Penalty Assessment
As indicated above, the court also imposed a Government Code section 70372 penalty assessment of $150 in connection with count 2. This was error.
It was alleged in count 2 that appellant committed a violation of section 288, subdivision (a) “on or about between January 1, 2002 and May 3, 2003....” (Unnecessary capitalization omitted.) The prosecution sought to prove the count 2 charge with evidence of three acts committed by appellant, the first when the victim was 10 years old (between May 4, 1999 to May 3, 2000), the second when the victim was 11 years old (between May 4, 2000 and May 3, 2001), and the third when the victim was 13 years old (between May 4, 2002 and May 3, 2003). The court instructed the jury as follows: appellant was charged with committing the count 2 offense between January 1, 2002, and May 3, 2003; the People had presented evidence or more than one act to prove the charge; and the jury could not find appellant guilty of count 2 unless the jury found appellant committed one of those acts and jury agreed on which act he committed.
Government Code section 70372 became effective January 1, 2003. (People v. High (2004) 119 Cal.App.4th 1192, 1197, fn. 2.) Imposition of a Government Code section 70372 penalty assessment based on a conviction for an offense committed before the effective date of the statute violates the constitutional prohibition of ex post facto legislation. (People v. High, supra, 119 Cal.App.4th at pp. 1198-1199.) Given that the prosecution attempted to prove the charge in question with evidence of three acts, two of which could only have occurred before the effective date of the statute and one of which may have occurred before that date, the People failed to prove beyond a reasonable doubt that appellant committed a violation of Penal Code section 288, subdivision (a) on or after the effective date of Government Code section 70372. (Cf. People v. Riskin (2006) 143 Cal.App.4th 234, 243-245.) Therefore, imposition of the penalty assessment under the latter statute violated the constitutional prohibition against ex post facto legislation. (Ibid.)
Section 1465.7 Surcharge - Count 2
As is also indicated above, the trial court also imposed, in connection with appellant’s conviction on the count 2 offense, a state surcharge under section 1465.7. The effective date of that statute was September 30, 2002. (People v. High, supra, 119 Cal.App.4th at p. 1197, fn. 2.) Imposition of a section 1465.7 surcharge based on a conviction for an offense committed before the effective date of the statute violates the constitutional prohibition of ex post facto legislation. (People v. High, supra, 119 Cal.App.4th at pp. 1197.) The People also failed to prove beyond a reasonable doubt that appellant committed a violation of section 288, subdivision (a) on or after the effective date of Penal Code section 1465.7. Therefore, imposition of the section 1465.7 surcharge in connection with count 2 violated the constitutional prohibition against ex post facto legislation. (Ibid.)
DISPOSITION
The Penal Code section 290.3 fine imposed in connection with the count 2 conviction is reduced to $200.
The Penal Code section 290.3 fine imposed in connection with the count 3 conviction is reduced to $300.
The following are stricken: the penalty assessments imposed under Government Code sections 76014.6 and 76014.7 in connection with the count 2 and count 3 convictions; the penalty assessment imposed under Government Code section 70372 in connection with the count 2 conviction; the section 1465.7 surcharge imposed in connection with the count 2 conviction; the Penal Code section 290.3 fine imposed in connection with the count 4 conviction; and all penalty assessments and the Penal Code section 1465.7 surcharge imposed in connection with the count 4 conviction.
The matter is remanded to the trial court for determination of the penalty assessments to be imposed under Penal Code section 1464, subdivision (a) and Government Code section 70372, subdivision (a) in connection with the count 2 and count 3 convictions.
In all other respects, the judgment is affirmed.