P. v. Ruiz
Filed 2/25/10 P. v. Ruiz CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JOSE BONIFACIO RUIZ, Defendant and Appellant. | F057866 (Super. Ct. No. VCF205323H) O P I N I O N |
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION AND FACTS
In February 2009, an information was filed in this case charging appellant Jose Bonifacio Ruiz and eight codefendants with numerous crimes; appellant was charged with nine offenses. In March 2009, appellant accepted a negotiated plea agreement. He pled no contest to one count of conspiracy to receive stolen property and one count of forgery; he admitted these offenses were committed to benefit a street gang. (Pen. Code, 182, subd. (a)(1); 475, subd. (c); 186.22, subd. (b)(1)(a).) Both of the offenses were committed in May 2008. The remaining counts against appellant were dismissed. In April 2009, appellant was sentenced in this case to three years and four months imprisonment. In addition to other financial costs, he was ordered to pay a $60 assessment ($30 for each offense) pursuant to Government Code section 70373, subdivision (a)(1), which became effective on January 1, 2009 (hereafter, the assessment).
Appellant argues the assessment is unauthorized and must be stricken because the crimes occurred before section 70373s effective date and the statute operates prospectively.[1] We agree and will modify the judgment to strike the assessment.
DISCUSSION
Section 70373 operates prospectively.
A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.] (People v. Hayes (1989) 49 Cal.3d 1260, 1274.) Determining if a statute operates retroactively is distinct and separate from assessing whether it violates the prohibitions against ex post facto laws. (See, e.g., People v. Alford (2007) 42 Cal.4th 749, 753-759 [Legislature intended Pen. Code, 1465.8 to operate retroactively & this statute does not violate ex post facto prohibitions] (Alford).)
Appellant argues that section 70373 operates prospectively because the statute does not contain a declaration of retroactivity and the statutory language and legislative history do not support a clear implication in favor of retroactive application. We agree.[2]
In 2004, the Judicial Council (JC) approved the Trial Court Five-Year Capital Outlay Plan (Capital Outlay Plan). The Capital Outlay Plan uses a systematic methodology to prioritize necessary court facility improvement projects into five groups: immediate, critical, high, medium and low. It presents annual estimated budget requirements to fund all proposed projects over a 10-year implementation period. In April 2007, the JC adopted an updated Capital Outlay Plan. (Cal. Bill Analysis, Assem. Floor, Sen. Bill No. 1407 (2007-2008 Reg. Sess.) Aug. 22, 2008.)
Section 70373 was enacted as part of Senate Bill No. 1407 (2007-2008 Reg. Sess.) enacted as Stats. 2008, ch. 311, 6.5) on September 26, 2008, and became effective on January 1, 2009. In relevant part, Senate Bill No. 1407 establishes the Immediate and Critical Needs Account (ICNA) of the State Court Facilities Construction Fund (SCFCF). The proceeds of the ICNA shall be used only for specified purposes related to the planning, design, construction, rehabilitation, renovation, replacement, acquisition, leasing, financing, or repayment of debt for acquisition of court facilities. (Cal. Bill Analysis, Assem. Floor, Sen. Bill No. 1407 (2007-2008 Reg. Sess.) supra.) To ensure and maintain adequate funding for court facilities, section 70373 imposes a $30 assessment on every conviction for a felony or misdemeanor criminal offense and $35 for each infraction, with certain limited exceptions.[3] ( 70373, subd. (a)(1).) The amount collected from the assessment is to be deposited in the ICNA. (Sen. Rules Com., Off. of Sen. Floor Analyses, Cal. Bill Analysis, Sen. Floor, Sen. Bill No. 1407 (2007-2008 Reg. Sess.) Aug. 29, 2008.) The assessment is but one component of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised. [Citations.] (People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4 [ 70373 does not violate ex post facto prohibitions] (Brooks).) One of the Assembly amendments to Senate Bill No. 1407 removed an urgency clause from the proposed legislation. (Sen. Rules Com., Off. of Sen. Floor Analyses, Cal. Bill Analysis, Sen. Floor, Sen. Bill No. 1407 (2007-2008 Reg. Sess.) supra.)
Recognizing that section 70373 does not contain an express declaration of retroactivity, respondent relies on the language of the statute and its legislative history to support its position in favor of retroactive application. We are not convinced.
Respondent argues the phrase every conviction for a criminal offense in section 70373, subdivision (a)(1), evidences retroactive intent. In our view, it simply evidences the intent to apply the assessment broadly, not to apply it to offenses that were committed before the statutes effective date. Respondent also relies on the words immediate and critical contained in the title of the fund into which revenue derived from the assessment is to be placed (i.e. the ICNA) as proof of retroactive intent. But this contention fails to account for the fact that immediate and critical are the two highest designations in the Capital Outlay Plan. Use of the words immediate and critical in the title of INCA only indicates the Legislature intended revenue from the assessment to be used for court facility needs that have been previously identified as most pressing.
The legislative history of section 70373 reflects that the Assembly amended Senate Bill No. 1407 to remove an urgency clause. We find this act significant. In Alford, supra, 42 Cal.4th 749, our high court relied on the fact that Penal Code section 1465.8 was created by an urgency statute that was enacted as part of an emergency budgetary measure for the nonpunitive purpose of funding court security to conclude the Legislature intended the court security fee at issue to be applied retroactively. (Id. at p. 754; see also Brooks, supra, 175 Cal.App.4th Supp. at p. 6.) In contrast here, an urgency clause was removed and Senate Bill No. 1407 was enacted during the 2007-2008 Regular Session. This distinguishes the legislative history of section 70373 from that of Penal Code section 1465.8.[4]
Since section 70373 does not contain a declaration of retroactivity and the statutory language and legislative history do not clearly indicate retroactive intent, we conclude the general presumption in favor of prospective application is not overcome. Therefore, the assessment cannot lawfully be imposed in this case because the crimes were committed prior to January 1, 2009.
DISPOSITION
The judgment is modified to strike the $60 assessment imposed pursuant to Government Code section 70373, subdivision (a)(1). As modified, the judgment is affirmed. The clerk of the superior court is ordered to prepare an amended abstract of judgment reflecting this modification and to transmit it to the appropriate authorities.
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Levy, J.
WE CONCUR:
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Wiseman, Acting P.J.
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Kane, J.
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[1] Whether section 70373 was intended to have retroactive application is a question of statutory interpretation reviewed de novo on this appeal. [Citations.] (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 548-549.) It is undisputed that the criminal offenses resulting in imposition of the assessment were committed in May 2008. Therefore, it is unnecessary to set forth the factual circumstances of these crimes.
Unless otherwise specified all statutory references are to the Government Code.
[2] The general rule requiring contemporaneous objection does not apply to unauthorized sentences. (People v. Scott (1994) 9 Cal.4th 331, 354.) Therefore, appellants failure to object to imposition of the assessment during the sentencing hearing did not result in forfeiture of the point on appeal. (People v. Chambers (1998) 65 Cal.App.4th 819, 823.)
[3] Subdivision (a)(1) of section 70373 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. ( 70373, subd. (a)(1).)
[4]Brooks, supra, 175 Cal.App.4th Supp. 1, observed that the language of section 70373 closely resembled Penal Code section 1465.8. (Id. at p. 5.) We do not disagree with this observation or quarrel with Brookssholdingthat section 70373 does not violate the ex post facto prohibitions. We merely find that there are significant differences between the legislative histories of section 70373 and Penal Code section 1465.8.
