P. v. Palmer
Filed 1/27/09 P. v. Palmer CA3
Opinion following rehearing
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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THE PEOPLE, Plaintiff and Respondent, v. CHARLES RICHARD PALMER, Defendant and Appellant. | C058953 (Super. Ct. No. CM026693) OPINION ON REHEARING |
Defendant Charles Richard Palmer entered negotiated pleas of guilty to three counts of continuous child molestation. (Pen. Code, 288.5.) The trial court sentenced him to an aggregate prison term of 48 years and imposed various fines and fees.
I
On appeal, defendant challenged the trial courts imposition on each count of a $300 fine plus penalty assessments pursuant to Penal Code section 290.3. (Further section references are to the Penal Code.) He contends, and the People concede, that the amount of the fines imposed under section 290.3 violated the prohibition against ex post facto application of laws, and that the remedy is to reduce by $100 one of the three fines imposed under this section.
In an opinion filed on December 23, 2008, we agreed with this claim of error. We reiterate our conclusion.
Section 290.3, subdivision (a) states that a defendant must pay specified fines for violating offenses listed in section 290 (sexual offender registration). When defendant committed the offenses in 2001 and 2004 at issue in this case, those fines were $200 for a first conviction and $300 for each subsequent conviction. The statute was amended in 2006 to raise the fines to $300 for a first offense and $500 for each subsequent offense. (Stats. 2006, ch. 337, 18, eff. Sept. 20, 2006.) Defendant was sentenced in 2008.
Under ex post facto principles, the amount of a fine is determined as of the date of the offense. (See People v. Saelee (1995) 35 Cal.App.4th 27, 30.) In this case, the trial court imposed three fines of $300 for defendants three violations of section 288.5. Thus, the fine for the first conviction must be reduced to $200, with the other two fines remaining at $300, in accordance with the provisions of section 290.3 as it existed when defendant committed the offenses.
II
In a petition for rehearing, filed on January 8, 2009, defendant does not quarrel with our decision of December 23, 2008. Rather, his appellate counsel sought rehearing because, in his words, counsel neglected to raise similar, apparently meritorious, and just now recognized arguments with respect to several other penalties and surcharges also imposed by the trial court at sentencing.
Specifically, counsel asserts that the trial court violated the prohibition against ex post facto application of laws when it applied section 1465.7 and Government Code sections 70372, 76104.6, and 76104.7. We asked the People to file an answer to defendants petition for rehearing. (Cal. Rules of Court, rule 8.268(b)(2).) The People did so and conceded the error. Consequently, we granted the petition for rehearing.
Section 1465.7, subdivision (a) requires the court to impose a 20 percent surcharge on every criminal conviction to maintain adequate funding for court security. The statute became effective on September 30, 2002. (Stats. 2002, ch. 1124, 46.) Because defendant committed the crimes underlying counts 46 and 47 before the effective date of this statute, the court erred in imposing a $60 surcharge as to those two counts. (People v. High (2004) 119 Cal.App.4th 1192, 1197.) However, the surcharge was lawfully imposed for count 48, which covered crimes committed between March 22 and June 22, 2004.
Government Code section 70372, subdivision (a)(1) requires a court to levy a state court construction penalty assessment in the amount of $5 for every $10, or part of $10, upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. It became effective on January 1, 2003. (Stats. 2002, ch. 1082, 4.) Because defendant committed the crimes underlying counts 46 and 47 before the effective date of this statute, the court erred in imposing a $30 fine as to those two counts. (People v. High, supra, 119 Cal.App.4th at pp. 1197-1199.) However, it was lawfully imposed as to count 48.
Government Code section 76104.6, subdivision (a)(1) requires courts to levy a DNA identification fine of one dollar for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. This statute was effective on November 3, 2004; thus, its application to all of defendants crimes violates the ex post facto principles of law. (People v. Batman (2008) 159 Cal.App.4th 587, 591.)
Government Code section 76104.7 requires a court to levy an additional state-only penalty of one dollar ($1) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses to be deposited into the DNA Identification Fund. This statute, effective on July 12, 2006, was enacted after all of defendants crimes. Thus, the imposition of any fine under this statute is an ex post facto application of laws. (Cf. People v. Batman, supra, 159 Cal.App.4th at p. 591.)
III
Appellate review of penalty assessments imposed in a case is facilitated where the trial court recites the statutory basis for the assessments. Indeed, the abstract of judgment filed by the trial court must separately list, with the statutory basis, all fines, fees and penalties imposed[.] (People v. High, supra, 119 Cal.App.4th at p. 1201.) It fails to do so in this case.
Thus, we shall direct the trial court to separately list, with the statutory basis, all fines, fees and penalties imposed. (See People v. High, supra, 119 Cal.App.4th at p. 1200) [Although . . . a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. . . . At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections [and Rehabilitation] has no statutory obligation to collect a particular fee, . . . the fee [and penalty assessments] must be included in the abstract of judgment].)
DISPOSITION
The judgment is modified as follows: (1) one of the three section 290.3 fines is reduced to $200 and the penalty assessments on that fine are reduced accordingly; (2) the surcharges imposed on counts 46 and 47 pursuant to section 1465.7, subdivision (a) are stricken; (3) the penalty assessments imposed on counts 46 and 47 pursuant to Government Code section 70372, subdivision (a) are stricken; (4) the fines imposed pursuant to Government Code section 76104.6, subdivision (a)(1) are stricken; and (5) the penalties imposed pursuant to Government Code section 76104.7 are stricken. As modified, the judgment is affirmed.
The trial court is directed to amend the abstract of judgment to reflect the modifications and to separately list, with statutory bases, a detailed recitation of all the fees, fines, and penalties properly imposed (People v. High, supra, 119 Cal.App.4th at p. 1201), and is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
SCOTLAND , P. J.
We concur:
HULL, J.
BUTZ , J.
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