Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC625073.
Duffy, J.
Defendant Stephen Joseph Braga was convicted by plea of five felony counts and sentenced to six years in prison. In imposing the sentence, the trial court stayed punishment on one count under Penal Code section 654. But the court imposed a restitution fund fine of $6,000 under the discretionary formula set out at section 1202.4, subdivision (b)(2), and a court security fee of $100 under section 1465.8, by considering all five counts without regard to the effect of section 654. Defendant challenges the amount of both the fine and the fee, contending that section 654 requires the calculation of each by exclusion of the stayed count. We agree with respect to the restitution fines but disagree with respect to the court security fee. Accordingly, we reduce each of the restitution fines to $4,800 and otherwise affirm the judgment.
Further statutory references are to the Penal Code unless otherwise stated.
The court also imposed but suspended a parole revocation fine in like amount under section 1202.45. Defendant encompasses this fine within his challenge to the restitution fund fine and we similarly address the two fines collectively, referring sometimes to the “restitution fines.”
STATEMENT OF THE CASE
The facts underlying defendant’s crimes are not relevant to the appeal. It suffices to say, as included in the probation report, that on December 28, 2004, he attempted a residential burglary but retreated when he discovered the resident at home. In February 2006, in what was impliedly determined by the trial court to have been a single course of conduct, defendant participated in the cashing of three forged checks, totaling $412.
Defendant was charged by felony complaint with attempted first-degree burglary in violation of sections 664/459-460, subdivision (a) (count 1); forgery in violation of section 470, subdivision (d) (counts 2-4), and grand theft in violation of sections 484-487, subdivision (a) (count 5). Counts 2 through 5 all related to the single course of conduct in connection with the forged checks. The complaint also alleged that defendant had suffered a prior strike within the meaning of sections 667, subdivisions (b)-(i) and 1170.12 (burglary), and that he had served three prior prison terms within the meaning of section 667.5, subdivision (b).
After being bound over for trial at a preliminary hearing, defendant pleaded guilty to counts 2 through 5 and admitted the prior strike and two prior prison terms pursuant to a plea bargain under which he would receive a prison sentence of no more than 12 years. But, at the same time, he elected to proceed to trial on count 1. The People subsequently amended count 1 to reduce it to second-degree burglary (§§ 664/459-460, subd. (b)) due to the state of the evidence and defendant then pleaded guilty to that amended charge as well.
The third prison prior was dismissed as redundant.
Defendant filed a Romero motion to dismiss the prior strike in the interests of justice under section 1385, which the court denied. Following the probation report’s recommendations, the court then dismissed the prison priors and sentenced defendant to six years in prison, which was composed of the two-year midterm on count 2, doubled for the prior strike; a concurrent four-year midterm on count 3; a consecutive one-third the midterm on count 4, doubled, for an additional one year and four months; a four-year term on count 5, stayed under section 654; and a consecutive eight-month term, or one-third the doubled midterm, on count 1. The court ordered victim restitution and imposed a restitution fund fine of $6,000 under section 1202.4, subdivision (b)(2), and imposed but suspended a parole revocation fee in like amount under section 1202.45. The court further imposed a court security fee under section 1465.8 of $100 among various other fines not pertinent here.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The reporter’s transcript in this regard says, “Restitution fund fine of [$]6,000 will be imposed under the – formally [sic] permitted under Penal Code section 1202.4 (B).” Despite what appears to be a typographical error, it is apparent that the court was referring to the discretionary formula provided at section 1202.4, subdivision (b)(2), per the probation report, which specifically recommended that “A Restitution Fine of $6,000.00 be imposed under the formula permitted by Penal Code [s]ection 1202.4(b).” The discretionary formula contained in section 1202.4, subdivision (b)(2) provides that “the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” In this case, defendant was sentenced to six years (6 x $200 = $1,200) and convicted of five felony counts (5 x $1,200 = $6,000) resulting in a restitution fine in accordance with the formula of $6,000.
Defendant timely appealed from the judgment, based on the sentence or other matters occurring after his guilty plea, for which no certificate of probable cause was required under section 1237.5 and rule 8.304 of the California Rules of Court.
DISCUSSION
I. The Restitution Fines Must be Reduced
As defendant contends, his challenge to the amount of the restitution fund fine is resolved by our recent case of People v. Le (2006) 136 Cal.App.4th 925 (Le). There, we held that section 654, which precludes multiple punishment for a single act or omission or an indivisible course of conduct, required that a count that should have been stayed under section 654 be excluded from the calculation of a restitution fund fine under the discretionary formula provided at section 1202.4, subdivision (b)(2). (Le, supra, 136 Cal.App.4th at pp. 932-934.) We reasoned that the fine is considered punishment, that section 1202.4 exhibits no intention to be excluded from section 654’s reach, and, therefore, that “the section 654 ban on multiple punishments is violated when the trial court considers a felony conviction for which the sentence should have been stayed pursuant to section 654 as part of the court’s calculation of the restitution fine under the formula.” (Le, supra, at p. 934.) We further held that the defendant there had received ineffective assistance of counsel because his lawyer had failed to object to the amount of the restitution fine and that despite the discretionary nature of the statutory formula, it was reasonably probable that the trial court would have imposed a lesser fine per the formula had the issue been raised below. (Id. at p. 935.)
The instant case stands in a very similar posture to that of Le. There is one minor difference—what appears to be a purely typographical error in the reporter’s transcript of the court’s reference to section 1202.4, subdivision (b)(2)’s discretionary formula when imposing the $6,000 restitution fund fine. Respondent makes the most of this error, suggesting that the court didn’t even use the formula and likely used another rationale in arriving at the amount of the fine—by application of the discretionary factors set out in section 1202.4, subdivision (d). But it seems clear enough to us from the record and the circumstances surrounding the court’s imposition of the fine, especially that the statutory formula amounts to $6,000 when including all five counts of which defendant was convicted, that the court not only used the formula as recommended by the probation report but even referred to the formula on the record, despite the reporter’s transcription of the word “formula” as “formally.” Even if the court had inadvertently said “formally” as appears in the transcript, it is reasonably clear in these circumstances that the court had meant to say “formula” and simply misspoke.
We accordingly follow Le in this case and conclude that the trial court erred by including count 5, punishment for which was stayed under section 654, in the calculation of the restitution fund fine formula set out at section 1202.4, subdivision (b)(2). We further conclude as in Le that defendant received ineffective assistance of counsel by his lawyer’s failure to have objected to the inclusion of count 5 in the court’s calculation of the fine per the formula and that counsel’s error was prejudicial in that it is reasonably probable that the court would have imposed a lower fine, per the formula, had counsel raised the issue. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [ineffective assistance shown by demonstrating that counsel’s performance fell below a standard of reasonable competence and that prejudice resulted]; People v. Anderson (2001) 25 Cal.4th 543, 569.) Based on our calculation, we will order that the abstract of judgment be modified to reduce the amount of each of the restitution fines to $4,800 (the product of $200 multiplied by defendant’s sentence of six years, multiplied by four felony convictions).
II. The Court Security Fee is Not Subject to Section 654
Defendant’s second contention is that as with the restitution fines, the court’s use of all five felonies for which he was convicted to calculate the court security fee under section 1465.8 was error because count 5 was stayed under section 654. Section 1465.8, subdivision (a)(1) provides for the imposition of a $20 court security fee “on every conviction for a criminal offense.” Defendant contends that section 654’s prohibition on multiple punishments for the same act likewise prevents the trial court from imposing multiple fees for convictions for the same act or course of conduct. But People v. Alford (2007) 42 Cal.4th 749 (Alford) and People v. Crittle (2007) 154 Cal.App.4th 368 (Crittle), provide the resolution to defendant’s argument.
Section 1465.8, subdivision (a)(1), reads: “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.” Subdivision (a)(2) goes on to provide in pertinent part: “For the purposes of this section, ‘conviction’ includes the dismissal of a traffic violation on the condition that the defendant attend a court-ordered traffic violator school, as authorized by Sections 41501 and 42005 of the Vehicle Code.” Subdivision (c) further provides: “When bail is deposited for an offense to which this section applies, and for which a court appearance is not necessary, the person making the deposit shall also deposit a sufficient amount to include the fee prescribed by this section.”
In Alford, the Supreme Court held that the $20 court security fee, as a revenue generating measure, does not constitute punishment or serve a punitive purpose and it therefore did not violate either federal or state prohibitions against ex post facto statutes. (Alford, supra, 42 Cal.4th at pp. 756-759; see also People v. Wallace (2004) 120 Cal.App.4th 867, 875-878.) Included as a factor in the court’s analysis was the fact that the court security fee was adopted as part of a larger budgetary scheme, which imposed the fee not only in the criminal context but also in limited and unlimited civil and probate cases as well. (Alford, supra, 42 Cal.4th at p. 758.) Further noted was the fact that section 1465.8, subdivision (a)(2), requires “that the $20 surcharge be imposed when a traffic violation is dismissed because the alleged violator attends traffic school” and that subdivision (c), requires “that the $20 court security fee be collected when bail is posted—a scenario which includes arrestees who will never be charged in an information, indictment, or complaint with a crime.” (Alford, supra, at p. 756.) These facts supported the court’s determination about the non-punitive nature of the court security fee required by section 1465.8.
In Crittle, which was decided before the Supreme Court’s decision in Alford, the court of appeal specifically held that the court security fee must be imposed based on a conviction for which punishment has been stayed under section 654 for the reason that the fee does not constitute punishment. (Crittle, supra, 154 Cal.App.4th at 369-371.) The court cited People v. Pearson (1986) 42 Cal.3d 351 (Pearson), for its characterization of section 654 as “generally bar[ring] the use of a conviction for ‘any punitive purpose’ if the sentence on that conviction is stayed.” (Crittle, supra, at p. 370.)
Defendant cites Pearson to support his contention that a stayed count should be omitted from the calculation of the court security fee because a section 654 stay does not just preclude the use of a conviction for any punitive purpose but also prohibits a “defendant from being disadvantaged in any way as a result of the stayed conviction[]” unless the provision explicitly exempts itself from section 654’s effect. (Pearson, supra, 42 Cal.3d at p. 361.) But defendant stretches Pearson too far and ignores its context. The “disadvantage” the court was referencing was the possibility that a defendant could be subjected to future sentence enhancements based on multiple convictions, even where some of the convictions had been stayed under section 654. (Ibid.) In other words, for present purposes, the disadvantage the Pearson court was discussing and prohibiting still related specifically to a punitive purpose—an incremental or enhanced punishment flowing from the stayed conviction. That punitive “disadvantage” is not the sort that imposition of the court security fee might inflict for the reason that the fee, though certainly an expense, does not constitute a form of punishment flowing from the stayed conviction. The calculation of the fee under section 1465.8, subdivision (a)(1), the purpose of which is akin to a user fee, may therefore include all convictions regardless of whether punishment on some counts has been stayed under section 654.
DISPOSITION
The judgment is ordered modified to reduce the restitution fund fine under section 1202.4, subdivision (b), from $6,000 to $4,800, and the parole revocation fine under section 1202.45 from $6,000 to $4,800. As so modified, the judgment is affirmed. The superior court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: Mihara, Acting P.J., McAdams, J.