P. v. Davis
Filed 1/21/10 P. v. Davis CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. JEREMY DANIEL DAVIS, Defendant and Appellant. | C062016 (Super.Ct.No. CM030337) |
Defendant Jeremy Davis pled no contest to assault with a deadly weapon and admitted that he inflicted great bodily injury in the commission of the offense. The court sentenced defendant to six years in state prison and imposed various penalties, assessments, and fines, including a $30 assessment pursuant to Government Code section 70373. (Further section references are to the Government Code unless otherwise specified.)
On appeal, defendant contends the section 70373 assessment was an unauthorized retroactive application of the statute in violation of the constitutional prohibitions against ex post facto laws (U.S. Const., art. I, 10; Cal. Const., art. I, 9) because his offense was committed in 2008, before the statute became effective in 2009.[1] We find no constitutional violation and shall affirm the judgment.
DISCUSSION
A fine or assessment will violate the prohibition against ex post facto laws when imposed retroactively if it is intended to operate as punishment, or is so punitive in effect that it operates as a penalty. (Trop v. Dulles (1958) 356 U.S. 86, 95-96 [2 L.Ed.2d 630, 639-640]; People v. Alford (2007) 42 Cal.4th 749, 755 (hereafter Alford).)
Section 70373, subdivision (a)(1), which became effective on January 1, 2009, states: 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. (Stats. 2008, ch. 311, 6.5.)
The language of section 70373 closely resembles that of the court security fee required in Penal Code section 1465.8, which the California Supreme Court held is not a prohibited ex post facto law and can be applied to any conviction after the statutes operative date, even if the offense was committed before the operative date. (Alford, supra, 42 Cal.4th at p. 752.)
At the time Alford was decided, Penal Code section 1465.8, subdivision (a)(1) stated: To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) 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. (Stats. 2003, ch. 159, 25.)
In holding that section 1465.8 is not an ex post facto law, the Supreme Court relied on the following: (1) The nonpunitive objective of maintaining adequate funding for court security purposes; (2) the statute is part of a broader legislative scheme in which civil fees were also raised; (3) the Legislature referred to the $20 amount due upon conviction by a nonpunitive term, labeling it as a fee rather than a fine; (4) the $20 fee is relatively small, and less onerous than other consequences that have been held to be nonpunitive; and (5) the amount of the fee is not dependent on the seriousness of the offense. (Alford, supra, 42 Cal.4th at pp. 755-759.)
These same factors apply to the section 70373 assessment.
The stated purpose of the assessment is to ensure and maintain adequate funding for court facilities, not to punish. ( 70373, subd. (a)(1).) It is part of a broader legislative scheme that increased filing fees in civil, family, and probate cases. (Legis. Counsels Dig., Sen. Bill No. 1407 (2007-2008 Reg. Sess.); see, e.g., 70611, 70613, subd. (a), 70621, 70654; Prob. Code, 7660.) In addition, the $30 amount is relatively small, is described as an assessment not a fine or a penalty, and is not dependent on the seriousness of the offense.
As with the court security fee in Alford, these factors demonstrate that the section 70373, subdivision (a)(1) assessment is nonpunitive and, therefore, is not a prohibited ex post facto law. (People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 3-4 [holding the retroactive application of section 70373 does not violate ex post facto laws].)
DISPOSITION
The judgment is affirmed.
SCOTLAND , P. J.
We concur:
HULL, J.
CANTIL-SAKAUYE , J.
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[1] Penal Code section 3 states: No part of [the Penal Code] is retroactive, unless expressly so declared. Defendant makes a cursory reference to the prohibition in this section, intimating this is a second reason why the court could not impose the fee. But he does not provide any legal analysis on this point, limiting his argument to the state and federal constitutional prohibitions against ex post facto laws. Thus, to the extent that he intended to rely on Penal Code section 3 as an independent reason why the imposition of the assessment was erroneous, he has forfeited this contention. (People v. Gurule (2002) 28 Cal.4th 557, 618; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159.)
