Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS070597
Mihara, J.
Defendant Roberto Lares Acuna appeals from a judgment of conviction entered after he pleaded no contest to one count of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)). The trial court sentenced defendant to 8 years in state prison, suspended execution of sentence, and imposed probation for five years with conditions that he serve one year in county jail. Defendant was also required to pay various fines, fees, and penalty assessments. We conclude that the imposition of certain fines and penalty assessments violated state and federal constitutional prohibitions against ex post facto laws, and that the payment of probation costs could not be ordered as a condition of probation. Accordingly, we reverse.
All further statutory references are to the Penal Code unless otherwise stated.
I. Statement of Facts
On June 12, 2006, defendant’s niece found her six-year-old daughter, who was naked from the waist down, in bed. Her daughter reported that defendant told her to remove her pants and underwear and lie on the bed. He then placed his hand on her vaginal area. After a few minutes, he removed his hand and told her not to tell anyone.
II. Discussion
In his opening brief, defendant argued that the trial court erred in calculating the total amount of the fines and penalty assessments that he was required to pay. He maintained that the correct amount was $960, which he calculated as follows: (1) a fine of $300 pursuant to section 290.3; (2) a 100 percent penalty of $300 imposed under section 1464; (3) a 20 percent penalty of $60 imposed under section 1465.7; (4) a 50 percent penalty of $150 imposed under Government Code section 76000, subdivision (e); and (5) a 50 percent penalty of $150 imposed under Government Code section 70372, subdivision (a).
The People responded that the issue had been forfeited, because defendant failed to object to imposition of the total amount. Alternatively, the People argued that there was statutory authority for each of the fines, fees, and penalty assessments imposed on defendant. They claimed that, in addition to the fines and assessments acknowledged by defendant, the trial court was required to impose the following: (1) a state restitution fine of $200 (§ 1202.4, subd. (b)); (2) a 20 percent penalty of $60 for emergency medical services (Gov. Code, § 76000.5); (3) a 10 percent penalty of $30 for the implementation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Fingerprint) (Gov. Code, § 76104.6); (4) a 10 percent penalty of $30 penalty for the DNA Identification Fund (Gov. Code, § 76104.7); (5) a $25 administrative screening fee (§ 1463.07); and a $35 installment fee (§ 1205, subd. (d)). The People agreed, however, that the matter should be remanded, because the trial court failed to itemize each of the specific fines, fees, and penalty assessments in the court minutes.
We note that the following code sections have been amended since the date of sentencing: Penal Code sections 290.3 and 1202.4, Government Code sections 76000.5, 76104.6, and 76104.7
In response to this court’s request, the parties submitted supplemental briefing on the issue of whether any of the fines and/or penalty assessments in the present case violated ex post facto provisions in the state and federal Constitutions.
Defendant argues, and the People concede, that section 290.3 and Government Code sections 76104.7 and 76000.5 constitute ex post facto laws. Thus, they assert that the restitution fine imposed pursuant to section 290.3 should be reduced to $200, and the penalties imposed pursuant to Government Code sections 76104.7 and 76000.5 should be stricken. We accept the People’s concession.
When an ex post facto violation results in an unauthorized sentence, the issue may be raised on appeal even if the defendant failed to object before the trial court. (People v. Zito (1992) 8 Cal.App.4th 736, 741-742.)
“Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of the state Constitution prohibit the passage of ex post facto laws. California’s ex post facto law is analyzed in the same manner as the federal prohibition. [T]he ex post facto clauses of the state and federal Constitutions are aimed at laws that retroactively alter the definition of a crime or increase the punishment for criminal acts.” (People v. Alford (2007) 42 Cal.4th 749, 755, internal citations and quotation marks omitted.) The present case does not involve the definition of a crime. However, in determining whether a fine or penalty assessment increases the punishment for a criminal act, this court must consider “‘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.’” (Ibid.)
Here, defendant committed his crime on June 12, 2006, and the trial court imposed the fines and penalty assessments on November 1, 2007. Section 290.3, as originally enacted, required a $200 fine for a defendant’s first conviction, but the fine was raised to $300 on September 20, 2006. (Stats. 2006, ch. 337, § 18; see Historical and Statutory Notes, 48 West’s Ann. Pen. Code (2008 supp.) foll. § 290.3, pp. 275-276.) Government Code section 76104.7 became effective on July 12, 2006, approximately one month after defendant committed his crime. (Stats. 2006, ch. 69, § 18, pp. 119-120.) Government Code section 76000.5 became effective on September 30, 2006. (Stats. 2006, ch. 841, § 1, p. 221.)
The restitution fine of section 290.3 is punitive on its face. When defendant was sentenced, it stated in relevant part: “Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction . . . .” (§ 290.3, emphasis added.)
The DNA Identification Fund penalty, imposed pursuant to Government Code section 76104.7, also appears to be punitive in nature. When defendant was sentenced, Government Code section 76104.7 stated in relevant part: “In addition to the penalty levied pursuant to [Government Code] section 76104.6, there shall be levied an additional state-only penalty of one dollar ($1) for every ten dollars ($10) or fraction thereof in each county, which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the court for criminal offenses . . . .” (Gov. Code, § 76104.7.) In People v. Batman (2008) 159 Cal.App.4th 587 (Batman), the court held that Government Code section 76104.6, which established a DNA Fingerprint penalty that is nearly identical to the DNA Identification Fund penalty of Government Code section 76104.7, violated ex post facto provisions. (Batman, at p. 591.) The court explained that “[t]he statute denominates the assessment a penalty: it applies to every criminal fine, penalty, and forfeiture; it is assessed in proportion to the defendant’s criminal culpability; and it is to be collected and processed under the same statute [Penal Code section 1424] that authorizes the state penalty assessment. In addition, the assessment will be used primarily for law enforcement purposes.” (Batman, at p. 590.) In our view, Government Code sections 76104.6 and 76104.7 should be treated in the same manner for ex post facto purposes, because the two penalty provisions are virtually identical.
Former Government Code section 76104.6 stated in relevant part: “For the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10), or fraction thereof in each county which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .”
Similarly, Government Code section 76000.5 should also be considered punitive. When defendant was sentenced, Government Code section 76000.5 provided in relevant part: “For purposes of supporting emergency medical services . . ., in addition to the penalties set forth in [Government Code] section 76000, the county board of supervisors may elect to levy an additional penalty of two dollars ($2) for every ten ($10) or fraction thereof, which shall be collected, together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .” Like Government Code section 76104.7, section 76000.5 of the Government Code is characterized as a penalty. The trial court is also directed to impose this penalty assessment in proportion to the defendant’s culpability pursuant to section 1464. Though the proceeds of Government Code section 76000.5 are to be used for an emergency medical services rather than law enforcement purposes, this factor is not dispositive. In People v. High (2004) 119 Cal.App.4th 1192 (High), the court held that a penalty imposed pursuant to Government Code section 70372, was punitive for ex post facto purposes, even though the proceeds of this statute are to be used for state court construction costs. (High, at p. 1197.) However, the court concluded that both its designation as a penalty and the manner of its imposition indicated that the Legislature intended that the purpose of the penalty was to punish criminal defendants. (High, at pp. 1198-1199.) For similar reasons, we conclude that Government Code section 76000.5 is punitive for ex post facto purposes.
Accordingly, the restitution fine imposed pursuant to section 290.3 must be reduced to $200 and the penalties imposed pursuant to Government Code sections 76104.7 and 76000.5 must be stricken.
Both parties also agree that the matter must be remanded to the trial court so that the penalty assessments can be recalculated, and the fines, fees, and penalty assessments can be itemized in the court records. In People v. Eddards (2008) 162 Cal.App.4th 712 (Eddards), the reviewing court noted that section 1213 provides in relevant part that “‘[w]hen a probationary order . . . has been pronounced, a copy of the entry of that portion of the probationary order ordering the defendant confined in a city or county jail as a condition of probation . . ., and a Criminal Investigation and Identification (CII) number shall be forthwith furnished to the officer whose duty it is to execute the probationary order . . ., and no other warrant or authority is necessary to justify or require its execution. [¶] If a copy of the minute order is used as the commitment document, the first page or pages shall be identical in form and content to that prescribed by the Judicial Council for an abstract of judgment, and other matters as appropriate may be added thereafter.’” (Eddards, at p. 718.) The court then interpreted section 1213 to require that the trial court provide a probation minute order that included the same “‘form and content’” as an abstract of judgment. (Ibid.) Thus, the Eddards court remanded the matter to the trial court for an itemization of all fines, fees, and penalty assessments. (Ibid.)
Defendant next contends that the trial court erred in ordering the payment of probation costs as a condition of probation. We agree.
The trial court may order a defendant to pay the costs of the preparation of probation reports and probation supervision if he or she is financially able to do so. (§ 1203.1b.) However, though the trial court may order the defendant to pay the costs of probation, it may not order the payment of such costs as a condition of probation. (People v. Hart (1998) 65 Cal.App.4th 902, 907 (Hart).)
In placing defendant on probation, the trial court stated, “[Y]ou’re placed on formal probation under the following terms and conditions,” and then listed the terms and conditions of probation, including: “You’re ordered to pay $644 for the cost of the probation report, plus $41 per month for the cost of supervised probation in accordance with your ability to pay.” The trial court also asked defendant: “Do you accept probation under these terms and conditions?” Since the trial court erred in making the probation-related costs a condition of probation, the order granting probation must be modified. (Hart, supra, 65 Cal.App.4th at p. 907.)
In his reply brief, defendant argues that the matter must be remanded for a hearing on defendant’s ability to pay the costs of the preparation of probation reports and probation supervision. We generally do not consider an issue that is raised for the first time in an appellant’s reply brief. “[S]uch consideration would deprive the respondent of an opportunity to counter the argument. Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. . . . Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [¶] . . . [T]he court may properly consider them as waived . . . .” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766, citations and quotation marks omitted.) Here, defendant has made no attempt to show any “good reason” why he failed to raise this argument in his opening brief. Accordingly, we consider it waived.
III. Disposition
The judgment is reversed. The case is remanded to the trial court, and the trial court is directed to prepare an amended judgment reflecting that the fine imposed under section 290.3 is reduced to $200, the penalty assessments imposed under Government Code sections 76104.7 and 76000.5 are stricken, and the statutory bases for all other fines and penalty assessments imposed upon defendant are stated. The trial court is also directed to prepare an amended minute order that itemizes all fines, fees, and penalty assessments, and modifies the conditions of probation to delete the requirement to pay the costs of preparation of the probation report and probation supervision. However, the order that defendant pay such costs is affirmed. As modified, the probation order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.