Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS221413 David M. Rubin, Judge.
BENKE, Acting P. J.
Appellant Fernando Vidal Ramirez, Jr. (Fernando), pled guilty to committing three robberies in exchange for a negotiated 15-year sentence. Fernando's plea was part of a "package deal" that required him to plead guilty along with his brother, co-defendant Jesse Vidal Ramirez (Jesse). Fernando subsequently sought to withdraw his guilty plea, contending he was coerced into pleading guilty by the court, the prosecutor and his own attorney, and he did so only to help Jesse avoid prosecution under the Three Strikes law.
On appeal, Fernando contends the trial court abused its discretion when it denied his motion to withdraw his guilty plea. Fernando also contends the trial court pronounced an unauthorized sentence when it imposed an assessment under Government Code section 70373, subdivision (a), and a $30 court security fee, instead of a $20 fee, under Penal Code section 1465.8, subdivision (a)(1).
All further statutory references are to the Penal Code unless otherwise specified.
We conclude the court trial court properly exercised its discretion when it denied Fernando's motion to withdraw his plea because Fernando did not establish by clear and convincing evidence that his plea was involuntary. We also affirm in the abstract of judgment the imposition of the assessment under Government Code section 70373 because it is mandatory, and conclude that assessment does not violate the ex post facto clauses of the California and federal Constitutions because it is nonpunitive and unrelated to Fernando's conduct.
However, we reverse the trial court's imposition of the $30 assessment under section 1465.8, as amended effective July 28, 2009, because Fernando's conviction occurred prior to the amendment's effective date. As such, we conclude the $20 assessment fee should be applied to Fernando, as set forth in former section 1465.8, subdivision (a)(1).
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 27, 2008, Fernando and Jesse (together, Ramirez brothers) approached a vehicle in which Yvette Swanson, Nicole Rodriguez and Selina Munoz (collectively, the women) were seated. When the women asked the Ramirez brothers to leave, they assaulted Swanson and demanded the women's cell phones. During the incident, Swanson heard the Ramirez brothers yell, "San Fernando LA gangs."
Swanson next handed one of the Ramirez brothers her purse. Munoz demanded that the Ramirez brothers stop beating Swanson. Believing that Munoz had "disrespected" him, Fernando struck Munoz. The women got out of the car and ran to a neighbor's house, while Fernando got behind the wheel of the car and yelled to Munoz, "Bitch, give me the keys."
Jaclyn Faulkner and Nicole Nixon witnessed the incident. When Nixon called 911, Fernando ran toward Nixon, saying: "Give me your fucking phone, bitch, " struck her and grabbed her purse. Neighbor Bradley Elsworth heard the women's pleas for help. When Elsworth went outside to investigate, one of the women yelled, "call the cops." The Ramirez brothers approached Elsworth, and Fernando asked him: "Where are you from, homey?"
Jesse then grabbed Rodriguez's purse and started running. Rodriguez gave chase. As they ran, the Ramirez brothers repeatedly yelled, "LA County."
When the police arrived, Rodriguez directed the officers to a nearby street where she had followed the Ramirez brothers. Officers found them sitting in front of a house; both Fernando and Jesse admitted they were members of the "San Fer gang." The officers found property belonging to Nixon and Swanson inside a trash can located on the house's shared driveway. The Ramirez brothers were identified at the scene.
Fernando and Jesse were each charged with attempted carjacking (count 1, §§ 664, 215, subd. (a)), three counts of robbery (counts 2, 3 and 4, § 211), two counts of assault by means likely to produce great bodily injury (counts 5 and 6, § 245, subd. (a)(1)) and two counts of battery (counts 7 and 8, § 242). The second amended information also alleged that counts 1 through 6 were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)) and that Fernando previously suffered a prior conviction within the meaning of sections 667, subdivisions (a)(1) and (b) through (i), 667.5, subdivision (b), 668, 1170.12, and 1192.7, subdivision (c).
At the preliminary hearing, a gang expert testified Fernando and Jesse were documented San Fer gang members and "without a doubt" the crimes were committed to benefit that gang. When Fernando asked Elsworth "Where are you from, homey, " the gang expert opined that Fernando was asking Elsworth about his gang affiliation. The court determined the crime was gang related, and bound both Fernando and Jesse over on the gang allegations.
In January 2009, the prosecutor offered Fernando and Jesse a plea deal. In return for guilty pleas from both Fernando and Jesse, the prosecutor agreed to a prison sentence of 12 years for each brother. Fernando and Jesse rejected that offer, as well as a subsequent offer made by the prosecutor.
On July 16, 2009, prior to hearing Fernando's section 995 motion to dismiss, the court informed Fernando that his maximum possible sentence if convicted was 47 years eight months. The Ramirez brothers understood the existing plea offer as well as their maximum exposure. Before accepting their not guilty pleas, the trial court allowed Fernando and Jesse to confer outside the courtroom to consider the prosecutor's renewed offer, which was a "package deal." When they returned to the courtroom, Jesse wanted to accept the plea deal but could not do so because Fernando wanted to reject the offer and the deal was contingent on both of them accepting it.
Fernando moved under section 186.22, subdivision (b)(1) to dismiss the gang allegations as to all counts (section 995 motion). As discussed post, the trial court ultimately did not rule on this motion, although its tentative was to deny it.
The prosecutor revealed if both Fernando and Jesse accepted the plea deal, charges would not be brought against Jesse stemming from an incident at the George Bailey Detention Facility (George Bailey incident), which could result in a "third strike" against Jesse under California's three strikes law. The George Bailey incident had been caught on video surveillance. The court cautioned, "I don't know how much that [George Bailey incident] should factor into [Fernando's] thinking, " to which Fernando replied, "It does. It matters to me, your honor." Jesse next told Fernando, "It's up to you. I signed it [the plea deal]. Whatever you want to do. It's up to you. It's going to be a third strike at life and 40 years. This is not going to make a difference.... If they do pick up another strike."
Concerning Jesse's potential third strike, the court reiterated: "It's something for [Jesse] to consider, but it's not something for Mr. Fernando Ramirez to consider." (Italics added.) The following colloquy then took place between Fernando and Jesse as they each weighed their options:
"[JESSE]: It's up to you. I'll go to trial. Don't worry about whatever I got going on with this and that.
"[FERNANDO]: That's the only thing that bothers me.
"[JESSE]: It's up to you. Whatever you want to do. I signed it. I want you to sign it because you want, not because of me. [¶]... [¶]
"THE COURT: He's telling you he doesn't mind spending life in prison, that's what he's telling you. So it's really your call.... [¶]... [¶] You're looking at 15 versus almost 50. It's up to you. Do you want to get out while you're in your 30's or get out in your 60's? Okay.
"[FERNANDO]: Accept."
In response, the court stated: "It seems like a wise decision to me.... [C]ertainly Fernando made the right call. And Jesse was right to tell him to think of his own self, right?" Fernando then remarked, "I did it for him [Jesse], not for myself, but—" The court then noted its "tentative was to deny the [section] 995 [motion] in its entirety." The plea agreement reduced Fernando's potential prison sentence from nearly 50 years to 15. The court and defense counsel both believed the evidence against Fernando was compelling, it was "not a very defensible case" and if he faced a jury, Fernando was likely to be convicted on all charges.
The trial court questioned Fernando and Jesse to ensure they both understood the ramifications of their decisions to plead guilty. Fernando testified he had not "had any drugs, alcohol or medication in the last 24 hours" including "flu, allergy medication." Fernando also confirmed that he had adequate time to talk to his attorney, and was "satisfied" with his attorney's representation and that he had "read, understood, and agreed to everything in" the change of plea form. The court reviewed the details of the plea bargain and Fernando acknowledged to the court that no one had made promises to or threatened him in connection with the plea bargain and he was "entering this plea freely and voluntarily."
Fernando admitted the allegations of all counts and priors, waived his right to a jury trial, pled guilty to the charges in counts 2, 3 and 4 and admitted as a serious felony a prior conviction for violation of section 245, subdivision (a)(1). As part of the negotiated plea, the prosecution agreed Fernando would receive a 15-year sentence and the balance of the second amended information would be dismissed.
On August 17, 2009, Fernando requested a Marsden hearing as a first step to the removal of his attorney and withdrawal of his guilty plea. The court read Fernando's letters to the court dated July 21 and August 16, 2009, in which Fernando asked to withdraw his plea because he had been "forced into the deal" and he had taken medication that impaired his judgment when he "agreed" to plead guilty.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). On January 21, 2009, Fernando made an earlier Marsden motion regarding a previous defense attorney, which the court denied.
Jesse also sought to withdraw his guilty plea because he felt the evidence against him in connection with the George Bailey incident was "inadequate." That issue is not before us, however.
The court also reviewed e-mails to Fernando from his defense counsel confirming their discussions regarding the plea offers. Fernando explained: "Your honor, I just feel like [defense counsel's] been pressuring me to take deals. I never agreed to take no deal, and I just feel that, as far as being counsel, he wasn't counseling me in my efforts to doing the case." Other than alleging defense counsel had pressured him to accept the deal, Fernando expressed no dissatisfaction with his counsel's representation. In fact, Fernando's defense counsel was an experienced attorney who at that time had handled more than 100 felony cases and who had met with Fernando several times to review his plea offers and potential exposure.
The dates of these letters and e-mails were incorrectly identified in the record. The notice of sealed document filed March 29, 2010, contained a "letter written by Attorney Jayakumar dated July 21, 2009, " but the document was actually a handwritten letter by Fernando to Judge Rubin dated July 21, 2009. The e-mails cited as dated July 29 and July 21, actually were dated June 29 and July 1, 2009, respectively.
During the hearing, Fernando eventually acknowledged: "I was really here to withdraw the plea. I didn't know what the Marsden was about." In denying Fernando relief, the court concluded: "[W]e're talking about a difference of tactics more than a difference of really being pressured. So I don't find this rises to the level of a relationship conflict that would breach the attorney/client relationship and I don't think that Mr. Ramirez has sustained his burden in the Marsden; therefore, the Marsden is denied."
At another Marsden hearing on August 31, 2009, Fernando repeated the allegations that his attorney had pressured him into signing the plea agreement. After hearing from Fernando's attorney, the court again denied Fernando's Marsden motion.
On September 25, 2009, a final Marsden hearing was held. The court denied Fernando's Marsden motion for a third time, ruling Fernando had " fail[ed] to meet the burden of proof required under Marsden."
On September 30, 2009, the court denied Fernando's motion to withdraw his guilty plea. In so doing, the court reviewed the transcript of the July 16, 2009 hearing and noted Fernando had testified under oath that he had not been threatened or promised any inducements, his plea was voluntary, he was not on any medication, and cited to where Fernando was advised it was his own decision whether to accept the plea deal. The court further noted Fernando was advised not to consider Jesse's fate, and that Jesse did not care whether Fernando accepted the plea agreement.
The trial court found Fernando's motion to be a case of "buyer's remorse" and noted Fernando may have been trying to gain a tactical advantage because the prosecution would be unprepared for trial. The court thus ruled Fernando had not met his burden by clear and convincing evidence, much less a preponderance of the evidence, to show his guilty plea was involuntary.
Based on their plea deal, the court sentenced Fernando and Jesse each to an aggregate term of 15 years in state prison. Fernando filed a timely notice of appeal and requested the issuance of a certificate of probable cause, which the court granted.
DISCUSSION
A. Withdrawal of Guilty Plea
Fernando claims the trial court abused its discretion when the court denied his motion to withdraw his guilty plea. Fernando maintains his conviction must be reversed because his guilty plea was the result of coercion and undue pressure and thus was not voluntary and because he was under the influence of medication at the time he accepted the plea deal.
Fernando incorrectly states his first request to withdraw his plea was "dated the same day he entered his guilty plea." The record instead shows Fernando's first request to withdraw his plea was made in a handwritten letter by Fernando to Judge Rubin dated July 21, 2009. Fernando also incorrectly states his second letter to the court was dated July 21, 2009, when in fact that letter was dated August 16, 2009.
1. Standard of Review: Abuse of Discretion
The decision whether to grant a motion to withdraw a guilty plea is within the discretion of the trial court, and the decision will be upheld on appeal absent an abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1339 (Fairbank); People v. Superior Court (1974) 11 Cal.3d 793, 795.) A plea which was the result of a negotiated agreement "should not be set aside lightly and finality of proceedings should be encouraged." (People v. Hunt (1985) 174 Cal.App.3d 95, 103 (Hunt); People v. Urfer (1979) 94 Cal.App.3d 887, 893, fn. 6 (Urfer).) This court must adopt the trial court's factual findings as well as inferences which support those findings, and will not reweigh those findings, if they are supported by substantial evidence. (Fairbank, supra, at p.1254; Hunt, supra, at p. 104.)
2. Good Cause Required toWithdraw Plea
A guilty plea may be withdrawn before judgment for good cause if shown by clear and convincing evidence. (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566.) Good cause requires a showing "that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.] However, '[a] plea may not be withdrawn simply because the defendant has changed his [or her] mind.' " (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).) Buyer's remorse, "even if it occurs well before sentencing, is not sufficient to compel the exercise of judicial discretion to permit withdrawal of the plea of guilty." (People v. Knight (1987) 194 Cal.App.3d 337, 344 (Knight).)
Section 1018 provides in part: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted."
A defendant who claims he or she was "subject to undue pressure" to accept a plea must demonstrate it was more "pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (Huricks, supra, 32 Cal.App.4th at p. 1208; compare People v. Sandoval (2006) 140 Cal.App.4th 111, 126 [defendant accepted plea after defendant's life was threatened by codefendant].) To withdraw a plea it must have been involuntary, or "done without choice or against one's will." (Knight, supra, 194 Cal.App.3d at p. 344; see also Urfer, supra, 94 Cal.App.3d at p. 892, fn. omitted [explaining that unwillingness or reluctance was "not [synonymous] with an involuntary act"].)
Courts recognize that "[l]awyers and other professional[s] often persuade clients to act upon advice which is unwillingly or reluctantly accepted" (Urfer, supra, 94 Cal.App.3d at p. 892), and that it "would be a difficult and sensitive task" for a reviewing court to delineate between "a defense attorney's aggressive but proper advice to plead guilty and oppressive conduct leading to an involuntary plea." (People v. Weaver (2004) 118 Cal.App.4th 131, 146 (Weaver).) In Urfer the court determined that defendant's reluctance to follow the advice of his attorney was not a " 'factor overreaching defendant's free and clear judgment.' " (Urfer, supra, 94 Cal.App.3d at p. 892.)
3. Analysis
We conclude Fernando has failed to carry his burden to show the trial court abused its discretion when it denied his motion to change his guilty plea. Like the trial court, we also conclude Fernando has failed to establish by clear and convincing evidence, much less by a preponderance of the evidence, that his plea was involuntary because it was the result of undue pressure, or because his judgment was impaired by medication.
The record shows defense counsel believed the evidence of Fernando's guilt was strong and Fernando's case was not "very defensible, " a conclusion also reached by the trial court and by this court independently based on the circumstances of, and number of witnesses, to the crime. The record also shows if Fernando did not accept the plea, went to trial and was convicted on all counts, he faced a potential prison sentence of nearly 50 years.
The record does not support Fernando's claim that his defense counsel coerced him to take the plea. We have little doubt Fernando felt pressure in connection with the plea, but that pressure was not the result of any oppressive conduct by his defense counsel, or by co-counsel for Jesse or by the trial court (see Weaver, supra, 118 Cal.App.4th at p. 146), but rather was the result of Fernando being caught between the proverbial "rock and a hard place" in light of the number of counts he was charged with and his possible sentence if convicted. (See Urfer, supra, 94 Cal.App.3d at p. 892.)
Likewise, we conclude the trial court properly exercised its discretion when it rejected Fernando's claim that he was coerced to accept the guilty plea because he took the deal out of love for his younger brother Jesse who was facing a possible "third strike" under California's three strikes law. The record shows Fernando requested and was given time to confer with Jesse as well as his own attorney before Fernando accepted the plea. The record further shows Fernando was advised by the court and Jesse to make the decision that was in Fernando's best interests and not base his decision on what was best for Jesse. In light of the fact that Fernando was facing a possible sentence of nearly 50 years in a case that was difficult to defend and that the trial court's tentative ruling was to deny his section 995 motion, it appears Fernando wisely decided to take the prosecution's offer of a 15-year sentence. That Fernando may have felt pressured to take this offer because of his brother's predicament does not render his plea involuntary.
Although Fernando now insists his judgment was "impaired" by medication, he testified under oath during the July 16, 2009 hearing that he had not taken any "alcohol or medication in the last 24 hours" including "flu, allergy medication." The record also shows that when asked by the court whether he understood the consequences of his plea, Fernando consistently answered in the affirmative.
On this record, we conclude the trial court properly exercised its discretion when it denied Fernando's motion to withdraw his guilty plea.
B. Imposition of Assessments/Fees
1. Government Code Section 70373
a. Oral Pronouncement Imposing Mandatory Fees
Fernando alleges the assessment under Government Code section 70373, subdivision (a)(1) must be stricken because it was not imposed orally at the time of sentencing, but rather was imposed only in the abstract of judgment.
Government Code section 70373 provides: "(a) (1) 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. [¶] (2) For the purposes of this section, 'conviction' includes the dismissal of a traffic violation on the condition that the defendant attend court-ordered traffic violator school as authorized by Sections 41501 and 42005 of the Vehicle Code. This assessment shall be deposited in accordance with subdivision (d), and may not be included with the fee calculated and distributed pursuant to Section 42007 of the Vehicle Code. [¶] (b) This assessment shall be in addition to the state penalty assessed pursuant to Section 1464 of the Penal Code and may not be included in the base fine to calculate the state penalty assessment as specified in subdivision (a) of Section 1464 of the Penal Code. The penalties authorized by Chapter 12 (commencing with Section 76000), and the state surcharge authorized by Section 1465.7 of the Penal Code, do not apply to this assessment. [¶] (c) When bail is deposited for an offense to which this section applies, and for which a court appearance is not necessary, the person making the deposit also shall deposit a sufficient amount to include the assessment prescribed by this section. [¶] (d) Notwithstanding any other law, the assessments collected pursuant to subdivision (a) shall all be deposited in a special account in the county treasury and transmitted therefrom monthly to the Controller for deposit in the Immediate and Critical Needs Account of the State Court Facilities Construction Fund, established in Section 70371.5. [¶] (e) The Judicial Council shall provide for the administration of this section."
It is generally true that the oral pronouncement of judgment controls. (People v. Mesa (1975) 14 Cal.3d 466, 471.) However, when an assessment is mandatory, its "omission may be corrected for the first time on appeal." (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530 (Castellanos), citing People v. Smith (2001) 24 Cal.4th 849, 852 [sentencing errors "correctable without referring to factual findings in the record or remanding for further findings are not waivable"].) This is true even if the prosecutor failed to object in the trial court. (People v Talibdeen (2002) 27 Cal.4th 1151, 1157.)
Government Code section 70373, subdivision (a)(1) imposes a mandatory assessment: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense...." (Italics added; see also People v. Woods (2010) 191 Cal.App.4th 269, 272-273 [court has no authority to stay mandatory fine]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 (Knightbent) [imposition of assessment under Government Code section 70373, subdivision (a)(1) is required].) Here, the trial court's failure to impose orally the assessment required under Government Code section 70373, subdivision (a)(1) does not invalidate its imposition by the abstract of judgment.
b. Ex Post Facto Laws and Government Code Section 70373
Fernando next alleges that even if imposition of the assessment in Government Code section 70373, subdivision (a)(1) was mandatory, it still violated ex post facto principles because his crimes were committed before that section's effective date. Government Code section 70373 was enacted in September 2008 as part of Senate Bill No. 1407 (2007-2008 Reg. Sess., Stats. 2008, ch. 311, § 6.5), and became effective January 1, 2009.
Ex post facto provisions preclude increasing punishment for a crime after its commission. (Knightbent, supra, 186 Cal.App.4th at p. 1112.) The California Constitution provides the same protection from ex post facto laws as the United States Constitution. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-297.)
In determining whether ex post facto laws preclude application of the assessment in Government Code section 70373, subdivision (a)(1) to crimes committed prior to its effective date, the relevant inquiry is whether the assessment constitutes punishment. (See Trop v. Dulles (1958) 356 U.S. 86, 95-96 [78 S.Ct. 590].) "[W]hat constitutes punishment varies depending upon the context in which the question arises. But two factors appear important in each case: 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." (People v. Castellanos (1999) 21 Cal.4th 785, 795, fn. omitted; accord, People v. Alford (2007) 42 Cal.4th 749, 755 (Alford).)
In Alford our Supreme Court determined that fines imposed by Penal Code section 1465.8, a statute "substantially similar" to Government Code section 70373, did not violate ex post facto laws because the measure which enacted the statute was budgetary, it imposed fees in noncriminal cases as well, it was labeled a "fee" rather than a "fine, " "the amount of the fee [was] not dependant upon the seriousness of the offense" and the amount of the fee was minimal. (Alford, supra, 42 Cal.4th at p. 759.)
Subsequent decisions have found the Legislature intended Government Code section 70373 to be interpreted in the same manner as Penal Code section 1465.8 because both statutes are similarly worded. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1414(review den. June 9, 2010); People v. Davis (2010) 185 Cal.App.4th 998, 1000 (Davis); see also Alford, supra, 42 Cal.4th at p. 754.)
Fernando asserts that the Legislature's use of the word "assessment" in subdivision (a)(1) of section 70373 of the Government Code, as opposed to the term "fee, " is indicative of the Legislature's intent to impose a "penalty." We disagree. "The Legislature's choice of what in most cases would be considered a more nonpunitive term, a fee as distinguished from a fine, is directly relevant albeit not entirely dispositive in assessing the legislative intent question which is the first prong of the ex post facto analysis. [Citations]." (People v. Wallace (2004) 120 Cal.App.4th 867, 876.)
California's appellate courts have relied on Alford in finding the assessment prescribed by Government Code section 70373, subdivision (a)(1) not punitive. (See e.g., People v. Cortez (2010) 189 Cal.App.4th 1436, 1444 (Cortez) ["Section 70373 [of the Government Code] is not a punitive statute, either in intent or operation"]; People v. Lopez (2010) 188 Cal.App.4th 474, 479-480 (Lopez), review den. Dec. 15, 2010 [same]; Knightbent, supra, 186 Cal.App.4th at pp. 1111-1112 [same]; Davis, supra, 185 Cal.App.4th at p. 1000 [same]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492 (Fleury), review den. June 9, 2010) [same]; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 6 (Brooks).)
Fernando insists the Third District Court of Appeal incorrectly decided Brooks, andits decision in Fleury does not "accurately reflect the [California Supreme Court's] holding in Alford." Nevertheless, since Brooks and Fleury were decided, other districts have found Government Code section 70373 applicable to crimes committed before its enactment, a conclusion we also reach. (See People v. Mendez (2010) 188 Cal.App.4th 47, 61 (Mendez) rehg. den. Dec. 1, 2010 (Second District, Div. 2); Davis, supra, 189 Cal.App.4th 1436 (Second District, Div. 4); Lopez, supra, 188 Cal.App.4th 474 (Fourth District, Div. 2); Cortez, supra, 189 Cal.App.4th 1436 (Fourth District, Div. 3); and People v. Phillips (2010) 186 Cal.App.4th 475 (Phillips) (Fifth District).)
Fernando also argues Government Code section 70373 is analogous to Government Code section 70372, which the Third District Court of Appeal in People v. High (2004) 119 Cal.App.4th 1192, 1199 (High) held violated ex post facto laws. However, the Third District declined to apply its own decision in High to Government Code section 70373, noting that High was "readily distinguishable" because unlike Government Code section 70373, section 70372 used the term "penalty" and the amount of that penalty was related to the seriousness of the crime. (Fleury, supra, 182 Cal.App.4th at pp. 1492, 1493; High, supra, 119 Cal.App.4th at p. 1199; accord Brooks, supra, 175 Cal.App.4th Supp. at p. 6).)
Fernando asserts the "only real difference between [Government Code] sections 70372 and 70373" is that [section] 70373 imposes a "flat-rate" assessment, whereas [section] 70372 "imposes an assessment on a percentage basis." However, the very fact that the "penalty" imposed by section 70372 increases with the amount of the underlying fine is a significant difference between the two statutes, and served as the basis for the Third District's decision to characterize Government Code section 70372 as punitive. (High, supra, 119 Cal.App.4th at p. 1199.)
Finally, Fernando argues that exclusionary language in section Government Code 70373, subdivision (b) supports his position that this statute imposes a penalty. Government Code section 70373, subdivision (b) states that "penalties" authorized by other sections of the Government and Penal Codes "do not apply to this assessment." In circular logic, Fernando explains this language is necessary only if Government Code section 70373 was intended by the Legislature to impose a penalty. We disagree and instead construe this provision to mean only what it says: the assessment imposed by Government Code section 70373 shall not be used to calculate penalties imposed by the other cited code sections.
We agree with other Courts of Appeal that because Government Code section 70373 imposes an "assessment" for a nonpunitive purpose, its application to crimes committed before its effective date does not violate ex post facto laws. (See Cortez, supra, 189 Cal.App.4th at p. 1444; Knightbent, supra, 186 Cal.App.4th at pp. 1111-1112; Davis, supra, 185 Cal.App.4th at p. 1001; Fleury, supra, 182 Cal.App.4th at p. 1492; Brooks, supra, 175 Cal.App.4th Supp. at p. 4.)
Fernando's argument that Government Code section 70373 subdivision (a)(1) "is a penalty that is imposed only on criminal defendants" is also unpersuasive because Senate Bill No. 1407, which led to the enactment of that statute, also increased filing fees in civil, family, and probate cases as well as in criminal cases. (See, e.g., Gov. Code, §§ 70611, 70613, subd. (a) [civil], 70654 [civil appeals and writs], 70654 [guardianship].)
c. Retroactivity of Government Code Section 70373
Fernando also alleges that Government Code section 70373 should not be applied to his conviction because its effective date was after the date on which his crimes were committed, and thus its application is inconsistent with the presumption that new statutes apply prospectively. Whether the Legislature intended a statute to operate retroactively is a question of law we decide independently. (In re Chavez (2004) 114 Cal.App.4th 989, 994 (Chavez).)
Our courts have routinely rejected Fernando's argument and found the assessment "authorized by [Government Code] section 70373 is triggered by a conviction, not the underlying criminal act. Thus, it properly applied, prospectively, to all convictions entered after the date of its enactment." (Cortez, supra, 189 Cal.App.4th at p. 1443, citing Davis, supra, 185 Cal.App.4th at pp. 1000, 1001 [refusing to apply Government Code section 70373 when conviction occurs before effective date]; accord Lopez, supra, 188 Cal.App.4th at p. 479 ["Section 70373 can and does apply to crimes committed before its enactment."]; Mendez, supra, 188 Cal.App.4th at p. 61, disagreed with on other grounds as stated in People v. Caballero (2011) 191 Cal.App.4th 1248, 1256; Phillips, supra, 186 Cal.App.4th at pp. 478-479, review den. Sept. 15, 2010; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414 (Castillo), review den. June 9, 2010.)
The California Supreme Court has granted review of the only decision cited by Fernando in support of his position. (See People v. Bowman (2010) 182 Cal.App.4th 1616, review granted June 9, 2010, No. S182172, 232 P.3d 611.)
Phillips and Castillo relied onthe "stark" similarity between the language of Government Code section 70373 and Penal Code section 1465.8 and our Supreme Court's decision in Alford in deciding that section 70373 was properly applied to convictions entered after the effective date of the statute, regardless of the date the crime was committed. (Phillips, supra, 186 Cal.App.4th at p. 478; Castillo, supra, 182 Cal.App.4th at pp. 1414-1415.) Although Fernando insists Castillo's "reliance on Alford is misplaced" and its "reasoning is flawed, " we agree that Government Code section 70373 was intended to apply to all crimes for which convictions were entered following its effective date. The trial court here therefore properly imposed the assessment provided under this statute.
2. Penal Code Section 1465.8, Subdivision (a)(1)
Finally, Fernando alleges the court security fee of $30 per count prescribed by section 1465.8 was unauthorized because the fee was $20 at the time of his offenses. Fernando asserts the presumption that "newly enacted statutes operate prospectively" should apply here.
Fernando concedes the imposition of fees under section 1465.8 is mandatory and therefore the trial court's failure to impose orally this fee "may be corrected for the first time on appeal." (See Castellanos, supra, 175 Cal.App.4th at p. 1530.)
Section 1465.8, subdivision (a)(1) at the time of sentencing provided: "To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) 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, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code."
This version of 1465.8 was operative only until October 19, 2010, at which time the fee was increased to $40.00.
Section 1465.8 was amended effective July 28, 2009, to increase the fee from $20 to $30. (Cal. Legis. Serv. Stats. 2009-2010, 4th Ex. Sess. 4th Ex. Sess. Ch. 22 (S.B. 13.) We need not address the retroactive application of amended section 1465.8 in the case before us because that statute is operative upon conviction, and Fernando's conviction occurred on July 16, 2009, the date he entered his guilty plea. "It has been settled law for over 250 years that a person stands 'convicted' upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt." (Davis, supra, 185 Cal.App.4th at p. 1001.) The fee prescribed by section 1465.8 was $20 on the date of Fernando's conviction. We therefore agree that the $20 fee and not the $30 fee applies to Fernando.
DISPOSITION
We affirm the trial court's order denying Fernando's motion to withdraw his guilty plea and imposing the assessment under Government Code section 70373, subdivision (a)(1). We reverse the order imposing the $30 security fee pursuant to section 1465.8, subdivision (a)(1) and conclude instead the fee should be $20 as provided in former section 1465.8.
WE CONCUR: McDONALD, J. AARON, J.