P. v. Ward

Filed 12/22/09 P. v. Ward CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Jr., Judge. Modified and, as so modified, affirmed.

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Todd Neville Ward appeals the judgment (order revoking probation) entered following his plea of guilty to unlawful possession of a firearm. (Pen. Code, 12021, subd. (d)(1).) Ward contends the trial court imposed a duplicate restitution fine, parole revocation restitution fine and court security fee when it sentenced him to prison. (Pen. Code,  1202.4, subd. (b), 1202.45, 1465.8, subd. (a)(1).) Ward also contends a $30 criminal conviction assessment imposed under Government Code section 70373, subdivision (a)(1) violates ex post facto principles.

We reject Wards assertion the $30 criminal conviction assessment is a prohibited ex post facto law. However, we modify the judgment to reflect the restitution fine, parole revocation restitution fine and court security fee imposed upon revocation of probation are the same fines and fee the trial court imposed when it granted Ward probation.

BACKGROUND

On April 5, 2006, pursuant to a plea bargain, Ward pleaded guilty to unlawful possession of a firearm. The trial court suspended execution of a three-year prison term and placed Ward on probation on conditions that included payment of a $200 restitution fine (Pen. Code, 1202.4, subd. (b)) and a $20 court security fee (Pen. Code, 1465.8, subd. (a)(1)).[1] The trial court also suspended a $200 parole revocation restitution fine. ( 1202.45.)[2]

On February 18, 2009, the trial court found Ward in violation of probation and imposed the previously suspended three-year prison term. The trial court again ordered Ward to pay a $200 restitution fine and a $20 court security fee and suspended a $200 parole revocation fine. The trial court also imposed a $30 criminal conviction assessment under Government Code section 70373, subdivision (a)(1).[3] These fines, fee and assessment are reflected in the abstract of judgment filed March 2, 2009.

CONTENTIONS

Ward contends the trial court improperly duplicated the $200 restitution fine, the $200 parole revocation fine and the $20 court security fee on February 18, 2009. He also contends the criminal conviction assessment, imposed for the first time on February 18, 2009, violates the prohibition against ex post facto laws because the offense to which it relates was committed before the effective date of Government Code section 70373, subdivision (a)(1).

DISCUSSION

1. The judgment is ordered modified to prevent improper duplication of the restitution fine, the parole revocation restitution fine and the court security fee.

Ward contends the second $200 restitution fine, a $200 parole revocation restitution fine and a $20 court security fee were unauthorized because the initial restitution fine, parole revocation restitution fine and court security fee remained in force despite revocation of Wards probation. (People v. Arata (2004) 118 Cal.App.4th 195, 201-202; People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.) Ward notes in the reply brief that the report of the probation officer report filed February 19, 2009, indicates Ward has paid $630 toward his probationary financial obligation and that he has an unpaid balance of $2,579. Ward concludes the restitution fine, parole revocation restitution fine and the court security fee imposed on February 19, 2009 must be stricken.

The People concede the restitution fine, parole revocation restitution fine and court security fee may be imposed only once per conviction. However, they suggest the trial court did not impose new restitution fines and court security fee on February 19, 2009. Rather, the trial court merely reiterated the restitution fines and court security fee it previously had imposed. They note that in Arata and Chambers, the cases cited by Ward, the trial court increased the amount of the restitution fine upon revocation of probation, thereby demonstrating that a new fine had been imposed.[4] Here, the trial court did not increase the restitution fines, thereby suggesting they were the same restitution fines the trial court previously imposed.

We agree a trial court may not impose a second restitution fine upon revocation of probation. (People v. Arata, supra, 118 Cal.App.4th at p. 202; People v. Chambers, supra, 65 Cal.App.4th at pp. 822-823 A second court security fee also is unauthorized. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Because imposition of a second, duplicate restitution fine or court security fee is unauthorized, the issue may be raised on appeal notwithstanding the absence of an objection at sentencing. (People v. Chambers, supra, at p. 823.)

We also agree the trial courts intent may have been to reiterate the restitution fines and court security fee previously imposed. However, given that Ward has commenced making payments toward his financial obligation and in order to avoid ambiguity or possible duplication of the restitution fines and court security fee, we order the judgment modified to specify the restitution fines and court security fee imposed on February 19, 2009, are duplicates of the restitution fines and court security fee imposed on April 5, 2006.

2. The criminal conviction assessment.

Effective January 1, 2009, Government Code section 70373, subdivision (a)(1) requires an assessment of $30 on every conviction for a criminal offense. Ward contends this assessment amounts to an ex post facto law because the offense to which it relates was committed in 2005, and the law requiring the assessment became effective in 2009.

This contention was rejected in People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5-7. Brooks concluded the criminal conviction assessment is nonpunitive in nature and therefore imposition of the assessment for an offense committed prior to the effective date of the statute is not a prohibited ex post facto law. Brooks noted the criminal conviction assessment closely resembles the court security fee required under Penal Code section 1465.8, subdivision (a)(1), which the California Supreme Court found was not a prohibited ex post facto law in People v. Alford (2007) 42 Cal.4th 749, 759. We agree with the Brooks analysis and reject Wards ex post facto claim here.

DISPOSITION

The judgment is modified to specify that the $200 restitution fine (Pen. Code,  1202.4, subd. (b)), the suspended $200 parole revocation restitution fine (Pen. Code,  1202.45) and the $20 court security fee (Pen. Code, 1465.8, subd. (a)(1)) reflected in the abstract of judgment filed March 2, 2009, were imposed by the trial court on April 5, 2006. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J. ALDRICH, J.

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[1] Penal Code section 1202.4, subdivision (b) states: In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . .

Penal Code section 1465.8, subdivision (a)(1) states: 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 . . . .

[2] Penal Code section 1202.45 requires an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine . . . shall be suspended unless the persons parole is revoked.

[3] Government Code section 70373, subdivision (a)(1) provides: To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony . . . . (Gov. Code, 70373, subd. (a)(1).)

[4] In Arata, the trial court imposed a $600 fine at the time of conviction and an $800 fine when it granted probation. (People v. Arata, supra,118 Cal.App.4that p. 197.) In Chambers, the trial court imposed a $200 restitution fine when it granted probation and a restitution fine of $500 when it revoked probation. (People v. Chambers, supra, 65 Cal.App.4th at p. 821.) In both cases, the second fines were ordered stricken. (People v. Arata, at p. 203; People v. Chambers, at p. 823.)