Opinion
D056851 Super. Ct. No. FBA800772
01-05-2012
THE PEOPLE, Plaintiff and Respondent, v. DUDZAI PROSPER PSWATAI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino County, John B. Gibson, Judge. Affirmed.
Dudzai Prosper Pswatai appeals the judgment entered after a jury convicted him of the first degree murder, kidnapping, and robbery of Robert Mastrangelo and found true allegations that he personally used a firearm and personally and intentionally discharged a firearm, causing great bodily injury, in the commission of those offenses. The court sentenced Pswatai to a total determinate term of 9 years, plus an indeterminate term of 100 years to life. He challenges the convictions on multiple grounds, contending: (1) his murder conviction must be reversed because the robbery and kidnapping charges merged with the murder and therefore cannot be the basis of a felony murder instruction; (2) the trial court gave flawed instructions regarding the firearm enhancements; (3) the evidence was insufficient to support his kidnapping conviction; (4) the sentences and related enhancements for kidnapping and robbery must be stayed because the underlying conduct was indivisible from the murder; and (5) the trial court erred in imposing certain assessments. We reject Pswatai's contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Murder
On June 10, 2008, Mastrangelo had asked his friend, Travis Reeves, to meet with Jeffrey Berrouet to purchase ecstasy pills. (All further date references are to 2008.) Reeves met with Berrouet at a convenience store and, after making the purchase, discovered the pills were fake. Reeves contacted Mastrangelo and told him that "he got burned." Berrouet later returned and gave Reeves his money back.
That same day, Celina Sanchez, who lived with Berrouet and Pswatai, overheard a discussion between the two men about "something that went wrong that night" and heard Pswatai say they "should kidnap a white boy like they do in Alpha Dog." Sanchez explained that "Alpha Dog" is a movie in which the characters "kidnap a white boy because someone owes money for drugs, and instead of letting [him] go they ended up killing him."
On June 11, Pswatai asked Sanchez for yellow rope that was kept in the house. After Sanchez stated that she did not know where it was, Pswatai took the belt from her robe. Berrouet and Pswatai left the house in two separate vehicles, one of which was Sanchez's car. They returned in the evening and pulled Sanchez's car into the garage. Berrouet asked Sanchez for bleach and trash bags.
Berrouet and Pswatai spent at least four hours going in and out of the garage that night. Around 2:00 or 3:00 a.m., both men changed their clothes and put the clothes they were originally wearing in a box. At some point during the night, Sanchez observed Pswatai sitting on the futon and counting a large amount of money. She had never seen Pswatai with that much money before.
Classy Moore, who lived at the same house, noticed that Pswatai and Berrouet were nervous and pacing back and forth when they returned that night. Pswatai asked her for socks, which she later found in the bathroom with red stains on them. Moore became scared and returned to her room after Sanchez asked her, "[w]hat if they kidnapped somebody?"
In the morning on June 12, Berrouet asked to borrow Sanchez's car again. Berrouet and Pswatai left around 7:30 a.m. and returned around 1:00 or 2:00 p.m. Sanchez noticed that her car had been cleaned and the floor mats and car seats were missing. When Sanchez asked Berrouet what happened, he said, "[n]othing happened" and "remember you're on my team." Sanchez also noticed that Pswatai had a new hair cut, new shoes, new clothes and new cell phone.
Berrouet also cleaned the garage that day. According to Sanchez and Moore, the garage floor was wet and smelled like bleach. Items previously stored in the garage, including furniture, clothing and plastic bins, were put in a dumpster near the house. A portion of the wall in the garage had also been removed and paint was missing from the garage door.
On June 14, a jogger found Mastrangelo's body in a roadside ditch in Barstow. Mastrangelo was wearing only his underwear and his ankles were bound with a black cloth. He had been shot six times in the head, neck and torso.
Pswatai stayed with Arlene Pitchford, an acquaintance of Berrouet, for approximately a week or two at the end of June. During that time, Pitchford overheard a conversation between Pswatai, Berrouet and another man. Pswatai was crying, apologizing and stated that he "didn't mean to shoot him." Pswatai also stated that he "was just going to rob him" and that it was a drug deal gone bad. According to Pitchford, Pswatai admitted to the shooting and told his cousin to get rid of the gun.
Pitchford also heard Pswatai and Berrouet talk about needing to get Sanchez's car reupholstered. Pitchford connected them with her uncle who owned an upholstery shop. Berrouet requested that the upholstery, carpet, seats, and doors be replaced. On June 26, Sanchez went to the mall with Berrouet and he replaced all four tires on her car. Berrouet also instructed Sanchez to drive around on the tires and wear them out so that the police would not know the tires were changed. The Investigation
On July 3, Detective Keith Libby arrested Pswatai. Pswatai initially told Detective Libby that he worked all day on June 11 and spent the night at the home of Hyworth Rutanhira, a family member. However, Rutanhira was in prison during that time.
During his post-arrest interview, Pswatai told detectives that when he went over to Sanchez's house, Berrouet asked him to "help him out with this thing he's doing" by getting some rope and water. When Pswatai went into the garage, Mastrangelo was there with Berrouet and three other men. One of the men was trying to tie Mastrangelo's legs and instructed Pswatai to help. Mastrangelo was lying on the garage floor, wearing only his underwear. Pswatai denied shooting Mastrangelo, but stated that he gave Berrouet a rope and held Mastrangelo's legs while someone else tied him up. Pswatai also denied kicking and beating Mastrangelo, but stated that he heard another man kick him in the head. During the interview, Pswatai wrote a letter to Mastrangelo's family in which he apologized for his "small role into what happened." Pswatai's Testimony
Pswatai testified on his own behalf. He denied being at Sanchez's house on June 11 or at any time when Mastrangelo was there. Pswatai also denied ever meeting or seeing Mastrangelo. Pswatai acknowledged that he previously told detectives that he was at Sanchez's house on June 11, but stated that he lied because the detectives were trying to make him "snitch" on the others. He testified that he did not tell Detective Libby the truth about anything during the interview.
DISCUSSION
I. Merger Doctrine
Pswatai contends his murder conviction must be reversed because the trial court instructed the jury on a legally incorrect theory of felony murder predicated on the crimes of kidnapping and robbery. He bases this argument on the merger doctrine first adopted in People v. Ireland (1969) 70 Cal.2d 522 (Ireland), where our Supreme Court held that "a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Id. at p. 539.) According to Pswatai, the Supreme Court's subsequent decision in People v. Chun (2009) 45 Cal.4th 1172 (Chun), which held crimes that are assaultive in nature cannot serve as the basis of a second degree felony murder instruction, precludes the use of kidnapping and robbery as predicate offenses for a felony murder instruction in this case. We disagree.
Pswatai's reliance on Chun is misplaced. He may not rely on Chun's extension of the merger doctrine to assaultive-type crimes because Chun is limited to cases of second degree felony murder. The Chun court "reconsider[ed] the contours of the so-called merger doctrine" in the context of a conviction for second degree felony murder based on the crime of shooting at an occupied motor vehicle and concluded the current state of the law was "untenable." (Chun, supra, 45 Cal.4th at p. 1178.) Accordingly, it held that "all assaultive-type crimes . . . merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction." (Ibid., italics added.) The court noted that the second degree felony murder rule "is an interpretation of [Penal Code] section 188's 'abandoned and malignant heart' language" and that courts developed the merger doctrine as part of that interpretation to restrict the scope of the second degree felony murder rule and "ameliorate its perceived harshness." (Id. at pp. 1184, 1188.) (Undesignated statutory references are to the Penal Code.) It then carefully stated that "[b]ecause first degree felony murder is specifically proscribed by statute (§ 189), what we say about the second degree felony-murder rule does not necessarily apply to the first degree felony-murder rule." (Chun, at p. 1189, fn. 6, italics added.)
Indeed, three months after it decided Chun, the Supreme Court decided People v. Farley (2009) 46 Cal.4th 1053 (Farley) and ruled that the merger doctrine clarified in Chun does not apply in first degree felony murder cases. (Farley, at pp. 1111-1122.) First degree felony murder is specifically defined in section 189 as "[a]ll murder . . . which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289 . . . ." (Italics added.) The Farley court explained: "In the context of second degree felony murder, courts must interpret section 188's reference to an ' "abandoned and malignant heart." ' [Citation.] In the context of first degree felony murder, however, there is no need for interpretation of the Legislature's clear language. Thus, the differences between the statutory bases for first and second degree felony murder support the conclusion that although this court properly may limit the breadth of second degree felony murder in a manner consistent with its interpretation of the Legislature's intent, there is no room for interpretation when the Legislature has defined first degree felony murder to include any killing 'committed in the perpetration of, or attempt to perpetrate, . . . burglary.' " (Id. at p. 1119.) Thus, the Farley court overruled People v. Wilson (1969) 1 Cal.3d 431 (Wilson), a prior case extending the merger doctrine to first degree felony murder. (Farley, at pp. 1117, 1121.)
Pswatai is correct that Farley does not by itself preclude application of the merger doctrine to the crimes he committed in June 2008 because Farley was decided in July 2009 and overruled Wilson only prospectively. (See Farley, supra, 46 Cal.4th at pp. 1121-1122.) This temporal limitation on the overruling does not help Pswatai, however, because his crimes of kidnapping and robbery do not merge with murder pursuant to the doctrine set forth in Ireland. Courts have repeatedly rejected attempts to apply Ireland's merger doctrine and Wilson's extension of that doctrine to the felonies enumerated in section 189, including robbery and kidnapping, as those crimes are undertaken "for a felonious purpose independent of the homicide." (People v. Burton (1971) 6 Cal.3d 375, 388 [robbery], disapproved on other grounds by People v. Lessie (2010) 47 Cal.4th 1152, 1168; People v. Escobar (1996) 48 Cal.App.4th 999, 1012-1013 [kidnapping]; People v. Kelso (1976) 64 Cal.App.3d 538, 541-542 [kidnapping], cited with approval in People v. Smith (1984) 35 Cal.3d 798, 805.)
Based on the clear language of section 189 and the significant case law rejecting application of the merger doctrine to Pswatai's crimes, we are not persuaded by his arguments that the kidnapping and robbery in this case are included in fact within Mastrangelo's murder. Thus, we conclude the trial court did not err by instructing the jury that it could find Pswatai guilty of first degree murder based on the killing of Mastrangelo during the commission of a robbery or kidnapping.
II. Instructions on Firearm Enhancements
Pswatai contends the firearm enhancements must be reversed because the trial court gave flawed instructions that allowed the jury to find the enhancement allegations true even if he did not personally fire the fatal shots. We disagree.
The prosecution argued that Pswatai could be found guilty of murder as a direct perpetrator or on coconspirator or aiding and abetting theories. It also alleged that in the commission of the murder, kidnapping and robbery, Pswatai personally used a firearm and personally and intentionally discharged a firearm, causing great bodily injury. Thus, the court instructed the jury on the substantive offenses and with CALCRIM No. 3146 (Personally Used Firearm), CALCRIM No. 3148 (Personally Used Firearm: Intentional Discharge), and CALCRIM No. 3149 (Personally Used Firearm: Intentional Discharge Causing Injury or Death). Pswatai argues that because these instructions, along with others, made no distinction between direct and derivative liability and required a finding that "the defendant" committed a prohibited act, the jury was permitted to find the enhancement allegations true even if he did not personally fire the fatal shots.
The trial court must instruct even without request on all of the elements of a charged offense (People v. Cummings (1993) 4 Cal.4th 1233, 1311), and all " 'elements' of an 'enhancement.' " (People v. Clark (1997) 55 Cal.App.4th 709, 714-715.) The trial court's failure to instruct the jury on the elements of an enhancement implicates federal constitutional issues and such error is reversible unless it can be shown " 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (People v. Sengpadychith (2001) 26 Cal.4th 316, 326, citing Chapman v. California (1967) 386 U.S. 18, 24.) Review of the adequacy of instructions is based on whether the trial court "fully and fairly instructed on the applicable law." (People v. Partlow (1978) 84 Cal.App.3d 540, 558.) If possible, we interpret the instructions to support the judgment rather than to defeat it. (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
Here, the trial court correctly instructed the jury on the various firearm enhancements alleged. Pswatai did not object to the instructions or request modifications. A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate modifying language. (People v. Farley (1996) 45 Cal.App.4th 1697, 1711.) Even assuming Pswatai did not forfeit his claim of instructional error, we nevertheless conclude he has not shown the enhancement instructions were reasonably likely to have been interpreted by the jury in the manner he suggests. (People v. McPeters (1992) 2 Cal.4th 1148, 1191, superseded on another ground by statute as noted in People v. Wallace (2008) 44 Cal.4th 1032, 1087; People v. Smith (2008) 168 Cal.App.4th 7, 13.) We assume the jurors are intelligent persons capable of understanding and correlating all jury instructions given them. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
Despite the derivative liability theories presented by the prosecution and references to "the defendant" in the substantive offense and enhancement instructions, the jury expressed no confusion in resolving the firearm allegations. Pswatai's contention that the jury relied on coconspirator or aiding and abetting theories to find the allegations true also conflicts with the plain language of the allegations that Pswatai "personally" used and discharged a firearm. Further, the verdict forms specifically asked the jury whether Pswatai "personally used a firearm," "personally and intentionally discharged a firearm," and "personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death." Given the instructions and verdict forms, it is not reasonably likely that the jury found Pswatai liable on the firearm allegations under an aiding and abetting or coconspirator theory. Accordingly, even if we assume the instructions were flawed, we conclude the alleged error was harmless beyond a reasonable doubt.
III. Sufficiency of the Evidence to Support Kidnapping Conviction
Pswatai argues the evidence was insufficient to establish the prosecution's theory that Mastrangelo was kidnapped when he was taken from the garage to the desert where his body was later found as there is no evidence that he was alive during that time. The prosecution argues that the kidnapping conviction can be based on the initial movement of Mastrangelo to the garage or on his later movement from the garage to the desert. We conclude the evidence was sufficient to support the kidnapping conviction.
"In reviewing a criminal conviction challenged as lacking evidentiary support, 'the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496 (Hillhouse).) In addition to "view[ing] the evidence in the light most favorable to the judgment," we also "presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence." (People v. Johnson (1993) 6 Cal.4th 1, 38, disapproved on another point in People v. Rogers (2006) 39 Cal.4th 826, 879.)
Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance. (§ 207, subd. (a).) Additionally, the crime of kidnapping requires the victim to be alive when moved. "If one kills, then moves the body, the crimes committed do not include kidnapping. The statutory references to a 'person' (§ 207, subd. (a)) or an 'individual' (§ 209, subd. (b)), as the kidnapping victim, clearly contemplate someone alive. Indeed, no further harm can befall someone already dead; asportation of a corpse cannot increase the risk of harm." (Hillhouse, supra, 27 Cal.4th at p. 498.)
Contrary to Pswatai's position, it is not clear from the record that the prosecution relied solely on the theory that Mastrangelo was kidnapped when he was moved from the garage to the desert. While discussing the elements of kidnapping during closing arguments, the prosecution referred to moving Mastrangelo from the garage to the desert. However, in the context of felony murder based on kidnapping, the prosecution also pointed to Pswatai's plan to do an "alpha dog" by "kidnapping a white boy" and his acts of getting a rope before going to meet Mastrangelo. Thus, our review of the record reveals two asserted theories of kidnapping.
In viewing the evidence in the light most favorable to the judgment, we conclude there is substantial evidence to support Pswatai's kidnapping conviction. The evidence reveals that Pswatai was involved in kidnapping Mastrangelo by bringing him to the garage. Four days before Mastrangelo's body was discovered, Pswatai suggested to Berrouet that they "should kidnap a white boy like they do in Alpha Dog." The next day, he asked Sanchez for rope and took the belt from her robe. Pswatai and Berrouet left the house and when they returned, they spent several hours going in and out of the garage. The robe belt was later discovered on Mastrangelo's body, binding his ankles. Additionally, there is no question that Mastrangelo was alive in the garage because, during his post-arrest interview, Pswatai acknowledged that Mastrangelo was alive and admitted to helping tie up his legs. This evidence constituted substantial evidence from which the jury could reasonably infer that Pswatai kidnapped Mastrangelo by forcibly taking him to the garage. Having concluded that there is substantial evidence to establish that Mastrangelo was kidnapped when taken to the garage, we need not consider whether he was alive when he was moved from the garage to the desert.
IV. Pswatai's Objective
Pswatai contends the sentences and related enhancements for kidnapping and robbery must be stayed pursuant to section 654 because the underlying conduct for those crimes was indivisible from the murder.
Section 654 prohibits the imposition of multiple sentences where a single act or course of conduct pursuant to a single objective violates more than one statute. In such a situation, a defendant may be punished for only the most serious offense. (People v. Diaz (1967) 66 Cal.2d 801, 806.) However, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98.) The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 639.) Whether the defendant held multiple criminal objectives is a question of fact for the trial court, and its finding will be upheld on appeal if there is any substantial evidence to support it. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
When there is a temporal or spatial separation between offenses, giving the defendant time to reflect and renew his or her intent, the defendant's decision to continue a course of criminal conduct supports a finding that the defendant entertained multiple criminal objectives. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1257; People v. Surdi (1995) 35 Cal.App.4th 685, 689; People v. Andra (2007) 156 Cal.App.4th 638, 640.) This time-for-reflection principle may apply even when the multiple crimes share a common overall objective. (People v. Kwok, supra, at pp. 1253-1257; see People v. Britt (2004) 32 Cal.4th 944, 952 [separate objectives may be supported by consecutive acts even with similar intent].)
Here, Pswatai first argues that the sentences for his robbery and kidnapping convictions must be stayed because the jury may have convicted him of felony murder based on those offenses, which required a finding that the underlying offenses "were part of one continuous transaction" with the murder. However, substantial evidence supports the conclusion that Pswatai's crimes were committed with independent criminal objectives. Although the events leading up to Mastrangelo's murder were continuous, they spanned over a significant amount of time, giving Pswatai time to reflect and decide to continue the course of criminal conduct. After the bad drug deal with Mastrangelo, Pswatai decided to kidnap him. Mastrangelo was then taken to the garage where he remained for several hours. During this time, Pswatai had time to reflect and could have chosen not to rob and murder Mastrangelo. However, he chose to engage in further criminal activity by robbing Mastrangelo and killing him.
This is not a case where the defendant grabbed, moved and killed the victim in a relatively short span of time, reflecting an indivisible transaction. The duration of time and multiple locations involved support a finding that the kidnapping was not merely the means of facilitating the robbery and murder, but also had the distinct objective of prolonging the victim's discomfort and fear. Similarly, in committing the robbery, Pswatai had the distinct objective of taking Mastrangelo's possessions. Each crime in this case was committed with an independent purpose with significant time for reflection. Accordingly, there is substantial evidence to support multiple punishments in this case.
Pswatai next contends that the trial court's imposition of multiple firearm enhancements pursuant to section 12022.53 was erroneous because section 654 applies to conduct-based enhancements. Pswatai's claim has no merit because section 12022.53, subdivision (f), specifically provides that the additional punishment for firearm use under that section shall be "imposed per person for each crime" and our Supreme Court in People v. Palacios (2007) 41 Cal.4th 720, 727-728, held that section 654 does not apply to enhancements imposed under section 12022.53 even if they arise out of a single act and are committed against a single victim. (Italics added.) Thus, the trial court did not err in imposing separate firearm enhancements under section 12022.53 for each of Pswatai's crimes.
V. Criminal Conviction Assessments
The trial court ordered Pswatai to pay assessments of $60 per count, totaling $180. Pswatai contends we must reduce this amount to $90 because section 1465.8, subdivision (a)(1), only authorizes $30 per conviction. He further argues that to the extent we conclude the additional $90 was for assessments pursuant to Government Code section 70373, we must reverse that amount because it violated ex post facto principles. We conclude the trial court properly imposed assessments pursuant to Government Code section 70373.
Government Code section 70373, subdivision (a)(1), which became effective on January 1, 2009, 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."
The trial court required Pswatai to pay $60 per conviction. We conclude this amount consisted of a $30 court security fee per conviction pursuant to section 1465.8 and a $30 court facilities assessment per conviction pursuant to Government Code section 70373. This conclusion is consistent with the probation officer's report and recommendation to impose fees pursuant to both section 1465.8 and Government Code section 70373. Further, there is nothing in the record suggesting that the court imposed $60 per conviction pursuant only to section 1465.8. Accordingly, we find no merit to Pswatai's claim that the court improperly imposed fees in the amount of $60 per conviction under section 1465.8.
We next consider whether the imposition of assessments under Government Code section 70373 violated ex post facto principles. Pswatai was convicted and sentenced after the effective date of Government Code section 70373. He contends that because his crimes were committed prior to the effective date of Government Code section 70373, the imposition of criminal conviction assessments under that section violates the state and federal prohibitions against ex post facto laws.
" '[T]he ex post facto clauses of the state and federal Constitutions are "aimed at laws that 'retroactively alter the definition of crimes or increase the punishment for criminal acts.' " ' " (People v. Alford (2007) 42 Cal.4th 749, 755 (Alford).) As relevant here, in determining whether a law increases the punishment for criminal acts for ex post facto purposes, the inquiry is " 'whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature's contrary intent.' " (Ibid.)
In the relatively short time since Government Code section 70373 became effective, numerous cases have rejected the contention that application of the statute to convictions for crimes committed before the statute's effective date violates the rule against ex post facto laws. (People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 7 (Brooks); People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415 (Castillo); People v. Fleury (2010) 182 Cal.App.4th 1486, 1492-1494 (Fleury); People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001 (Davis); People v. Phillips (2010) 186 Cal.App.4th 475, 477-479; People v. Lopez (2010) 188 Cal.App.4th 474, 479; People v. Mendez (2010) 188 Cal.App.4th 47, 61; People v. Cortez (2010) 189 Cal.App.4th 1436, 1444.) Pswatai cites no cases reaching a contrary conclusion, and we are aware of none.
In Davis, the court briefly and accurately summarized the reasoning of the recent case law: "[Government Code section 70373] was enacted in 2008 as 'part of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised.' ([Fleury, supra,] 182 Cal.App.4th 1486, 1489 [].) Since its history and substance demonstrate that it is not a penal statute, in terms or effect, its application to crimes committed before the effective date does not offend the prohibition against ex post facto laws. (Id. at pp. 1488, 1490, 1493; [Castillo, supra,] 182 Cal.App.4th 1410, 1414 []; [Brooks, supra,] 175 Cal.App.4th Supp. 1, 4 [].) The Fleury and Castillo cases recognize that the phrasing of the statute is similar to the language of the court security fee law (Pen. Code, § 1465.8), which our Supreme Court held did not violate the ex post facto rule. ([Alford, supra,] 42 Cal.4th 749, 754 [].) Neither does its application offend the rule that new laws are presumed to operate prospectively. ([Castillo, supra,] 182 Cal.App.4th 1410, 1413.) As the Castillo case points out, the question was 'on what event does this statute operate.' The answer, provided by the language of the statute itself, is a conviction. (Ibid.)" (Davis, supra, 185 Cal.App.4th at p. 1000.) We agree with this analysis and see no reason to depart from it.
Pswatai was convicted after the effective date of Government Code section 70373, subdivision (a)(1), and there is no ex post facto bar to applying assessments under that statute to his convictions. Accordingly, we find no merit to Pswatai's argument that the criminal conviction assessments under Government Code section 70373, subdivision (a)(1), should not have been applied to his convictions for offenses that he committed in 2008.
DISPOSITION
The judgment is affirmed.
_______________
MCINTYRE, J.
WE CONCUR:
_______________
MCCONNELL, P. J.
_______________
AARON, J.