Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. VA107548, Patrick T. Meyers, Judge.
Karyn H. Bucur for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and J. Michael Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
A jury found defendant and appellant Lionil Fernandez guilty of three counts of second degree robbery (Pen. Code, §§ 211, 212.5) and one count of second degree commercial burglary (§§ 459, 460) arising from an incident on September 19, 2008 in which defendant entered the Southwestern Federal Credit Union in the city of Whittier and robbed three of the credit union’s tellers. Following a bifurcated court trial, the court found true the special allegation that defendant was guilty of a prior serious felony (§§ 667, 1170.12). Defendant was sentenced to an aggregate prison term of 11 years, with 186 days of custody credits, plus various fines, penalties and assessments.
All further section references are to the Penal Code unless otherwise indicated.
Defendant appeals, raising three issues: (1) he was denied effective assistance of counsel because his lawyer failed to move to suppress evidence obtained after he was unlawfully arrested following a warrantless search of his cell phone’s electronic transmissions; (2) there is insufficient evidence to support the trial court’s finding that his prior federal bank robbery conviction qualified as a serious felony under California law; and (3) the trial court imposed unauthorized penalties and assessments as part of his sentence.
We conclude defendant has failed to establish ineffective assistance of counsel. We further find there is sufficient evidence to support the prior serious felony allegation. We therefore affirm defendant’s conviction and the 11-year sentence. However, respondent concedes the challenged penalties and assessments were imposed in error, and therefore, we strike those assessments from defendant’s sentence.
FACTS
On September 19, 2008, Ashley Gallo, Jason Bouzos and Ashley Zacarias were working as tellers at the Southwestern Federal Credit Union in the city of Whittier. The credit union is located in a shopping mall that also contains a CVS pharmacy. At around 1:00 o’clock in the afternoon, a man of medium build wearing a dark mask that covered his face entered the credit union. He approached Ms. Gallo’s window first and loudly demanded money. The man yelled and banged on the countertop with his hands. Ms. Gallo feared for her safety. She placed the money from her drawer into the dark bag the man thrust at her over the counter.
The man then proceeded to Mr. Bouzos’s window and repeated his demands. He yelled the whole time and was very threatening. Mr. Bouzos placed the money from his drawer into the bag, along with a red dye pack. A dye pack is a device designed to look like a stack of $20 bills that explodes when it gets too far from the sensor in the teller’s drawer. The man then went to Ms. Zacarias’s window and screamed at her to place all the money from her drawer into the bag. She complied. She also was in fear for her safety from the man’s behavior. The man then quickly left the credit union. In accordance with credit union policy in the event of a robbery, the supervisor locked the front doors. The credit union’s silent alarm had already been triggered to summon law enforcement.
A few minutes after 1:00 p.m., Raul Lopez was sitting in his car in the parking lot outside the CVS pharmacy in the shopping mall. He saw a man of medium build running through the parking lot shaking a dark bag emitting red smoke. The man’s face was not covered but he looked to be wearing a dark “beanie.” The man “panicked” and got into a small white car and drove off. Shortly thereafter, the police arrived and Mr. Lopez told them what he saw. He also observed “red money” lying on the ground where the man had been. Three days later, Mr. Lopez agreed to go to the Whittier Police Department to look at photographs of suspects. Mr. Lopez was shown an array of six photographs (six-pack), and he identified the individual in photograph number three as the man he saw running through the parking lot outside the credit union. He wrote his initials on the six-pack along with the comment “looks like same guy.”
Veronica Marquez also witnessed the man running across the parking lot shortly after 1:00 p.m. Ms. Marquez was returning to her job in the shopping mall from her lunch break. As she was walking in front of the CVS, she saw a man running through the lot with a dark bag or backpack that was emitting red smoke. He stopped near a small white car that looked like a Ford Escort. The man started “slamming” the bag on the ground. Ms. Marquez saw some “red papers” fly out of the smoking bag. The man got into the white car. She did not see anyone with the man or anyone get into the car with him. Before he drove off, Ms. Marquez walked toward the car and memorized the license plate number. She noticed stacks of bills on the ground. Ms. Marquez then went to her workplace, and her manager wrote down the license plate number she recited. She gave this information to the police when they arrived shortly thereafter.
The call reporting the robbery at the credit union was received at the Whittier Police Department shortly after 1:00 p.m. While at the station, Detective David Yoshitake, the lead detective, received information from the responding officers that a witness had identified the car the suspect was driving, and that he had just fled the scene. The detective ran a computer check on a white Ford Escort, license number 3HDY753, for registration, warrants and related information. He determined the car was registered jointly in the name of defendant and Mario Fernandez, an individual later determined to be defendant’s father. He also discovered the car had recently been impounded by the San Bernardino County Sheriff’s Department and stored with an entity called Certified Towing.
Detective Yoshitake called Certified Towing and spoke with Steve McGrath, who informed him the Ford Escort was released to defendant some two weeks earlier on September 3, 2008. Mr. McGrath provided the detective with a copy of the release form executed by defendant in which defendant represented he was the person to whom the car should be lawfully released. The paperwork also included a copy of defendant’s driver’s license and phone number. Detective Yoshitake performed a “reverse check” and determined the phone number was for a cell phone in defendant’s name and Sprint was the service provider.
Because he feared the fleeing suspect could destroy evidence or commit additional crimes, Detective Yoshitake immediately faxed an exigent circumstances form to Sprint and requested that Sprint track the global positioning system (GPS) transmissions emanating from defendant’s cell phone. Detective Yoshitake then went to the scene at approximately 1:30 p.m., where he recovered the collected evidence, including red-stained money, the dye pack and a black bag. Upon returning to the station sometime around 2:30 p.m., Detective Yoshitake learned that Sprint had processed his request to track defendant’s cell phone, and there were “hits” from the phone’s GPS transmissions in the city of South Gate.
It is disputed here that no phone conversations or messages were intercepted; only electronic transmissions are at issue.
Detective Yoshitake drove, with several other officers and Detective Robert Wolfe, to the general location provided by the GPS tracking and eventually found defendant’s white Ford Escort parked on the street in front of an apartment complex on Cypress Avenue in South Gate. The officers waited outside on the public street watching the car. Within a short time, defendant appeared alone, approached the car and opened the trunk. As defendant was getting into the car, Detective Yoshitake and the other officers “swarmed” him before he could pull away from the curb. Defendant was placed under arrest and transported to the Whittier police station.
Detective Wolfe booked defendant, and during that process discovered a red substance on his boots and the cuff of one leg of his pants. Detective Wolfe collected defendant’s boots and pants and booked them into evidence so that the red substance could be tested and analyzed. Detective Wolfe did not see any other evidence of red dye on defendant.
The witnesses at trial included the three bank tellers (Gallo, Bouzos and Zacarias), Mr. Lopez, Ms. Marquez and Mr. McGrath, among others. Mr. Lopez confirmed his identification of defendant in the six-pack. He explained that when he saw photograph number three, he told the police officers immediately “that’s him” and that he feels the comment he wrote, “looks like same guy, ” is an understatement of his belief in the identification. Mr. McGrath identified defendant in court as the person who took the white Escort a couple of weeks before the robbery.
Detective Yoshitake confirmed the identification of defendant made by Mr. Lopez in the six-pack and that photo number three was in fact a photograph of defendant taken the day he was arrested and booked. He also testified to the course of his investigation and his arrest of defendant within only three hours of the robbery. Joseph Cavaleri, a criminalist with the Los Angeles County Sheriff’s Department, testified the red substance found on defendant’s pants was the same red dye used in the bank dye pack. He was unable to confirm the red substance on the boots because the quantity was too small to properly sample. The jury found defendant guilty on all four counts.
In a bifurcated proceeding, the strike allegation was tried to the court. Respondent presented two witnesses, Barbara Bacon, a paralegal for the Los Angeles County District Attorney’s Office, and Stella Martinez, a fingerprint examiner for the Los Angeles County Sheriff’s Department. Through these two witnesses, respondent presented four exhibits: a certified copy of a police report prepared by the Huntington Beach Police Department regarding the arrest of defendant in December 1995 pursuant to section 836.3, a certified copy of a 10-print fingerprint card from the Huntington Beach Police Department taken for that arrest, a report generated from the California Law Enforcement Telecommunications System (CLETS), and certified records from the federal prison in Seagoville, Texas, where defendant served an 87-month prison term for federal bank robbery.
The court sustained defendant’s hearsay objection to the police report. Defendant did not object to the remaining three exhibits and does not assert any appellate issues questioning the court’s evidentiary rulings.
Ms. Bacon attested to her efforts to obtain the records from the Huntington Beach Police Department and the federal prison in Texas. She acknowledged she did not obtain records from the federal court in which defendant was convicted in 1996, but she believed he was convicted in the Central District of California. She also confirmed that she regularly works with and reviews the CLETS database, and she personally generated the CLETS report offered as exhibit number three. Ms. Martinez testified she fingerprinted defendant, and his prints matched the 10-print fingerprint card obtained from the Huntington Beach Police Department. The trial court found true the strike allegation.
The court sentenced defendant to an aggregate state prison sentence of 11 years calculated as follows: the middle term of three years on count one, deemed the base count, doubled to six years as a second strike under sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), plus an additional five years for the prior serious felony enhancement pursuant to section 667, subdivision (a)(1). A two-year concurrent sentence was imposed as to each of counts two and three, and sentencing as to count four was stayed pursuant to section 654. The court awarded defendant total custody credits of 186 days.
In addition, the court imposed the following fines, penalties and assessments: a $200 restitution fine, plus a $100 penalty assessment (§ 1202.4, subd. (b); Gov. Code, § 70372, subd. (a)); a $200 parole revocation restitution fine, plus $100 penalty assessment (§1202.45; Gov. Code, § 70372, subd. (a)) stayed pending successful completion of parole; and, as to each of the four counts, an $85 “security fee” consisting of a $20 court security fee (§ 1465.8), a $20 penalty assessment (§ 1464, subd. (a)), a $14 penalty assessment (Gov. Code, § 76000, subd. (a)), a $4 fee (§ 1465.7), a $10 fee (Gov. Code, § 70372, subd. (a)), a $7 fee (Gov. Code, § 70372, subd. (a)), and a $10 fee (Gov. Code, § 70372, subd. (a)). This appeal followed.
DISCUSSION
1. The Record Does Not Establish Ineffective Assistance of Counsel.
Defendant’s first contention is that his counsel rendered ineffective assistance in violation of the Sixth Amendment to the federal Constitution and section 15 of article 1 of our state Constitution, by failing to move to suppress evidence pursuant to section 1538.5. Defendant contends the police located and arrested him solely due to an unlawful, warrantless interception of his cell phone’s GPS transmissions, and the resulting recovery of the boots and pants he was wearing at the time was therefore tainted. Defendant further contends the failure to suppress this evidence was prejudicial, because if a proper motion had been made by his counsel, there would not have been sufficient evidence linking him to the robberies of the credit union, and a different outcome at trial was reasonably probable.
The burden is on defendant to establish ineffective assistance by a preponderance of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) There are two elements to an ineffective assistance claim. “[A] defendant seeking relief on the basis of ineffective assistance must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)
On direct appeal, this burden can be stringent. When the record on appeal “ ‘ “sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello), italics added; People v. Jones (2003) 29 Cal.4th 1229, 1254 (Jones) [ineffective assistance claim properly resolved on direct appeal only where record affirmatively discloses no rational tactical purpose for counsel’s actions].)
Here, the record offers no explanation why defense counsel did not move to suppress the boots and pants recovered incident to defendant’s warrantless arrest. We cannot say there is no rational basis for counsel’s tactical decision not to file a motion to suppress. Defendant’s argument hinges on his assertion that the tracking of his cell phone’s GPS transmissions without a warrant was per se illegal, thereby making the filing of a motion to suppress any evidence recovered in reliance on such tracking the only rational choice for a reasonably competent defense lawyer.
We do not accept that foundational premise. “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” (Strickland, supra, 466 U.S. at p. 690, italics added.) At the time of trial, defense counsel here was faced with an evolving area of federal law, given the constantly changing technology related to GPS transmissions and/or cell site data. (See discussion in In re United States for an Order Directing Provider of Elect. Commun. Serv. to Disclose Records to the Gov’t (3rd Cir. 2010) 620 F.3d 304.) There was, and is, no bright-line rule which would have mandated exclusion of the evidence recovered incident to defendant’s warrantless arrest.
Under California law, all relevant evidence is admissible unless exclusion is compelled by the federal Constitution. (People v. Barrett (2003) 109 Cal.App.4th 437, 451; Cal. Const., art. I, § 28, subd. (f)(2).)
Some brief background on the law surrounding electronic surveillance is appropriate. “The basic contours of electronic surveillance law were fixed by the Electronic Communications Privacy Act of 1986 (‘ECPA’). [Citation.]” (In re Application for Pen Register and Trap/Trace (S.D.Tex. 2005) 396 F.Supp.2d 747, 751.) The ECPA, along with the Omnibus Crime Control & Safe Streets Act of 1968, set the standards for the government’s authority to install wiretaps and monitor private conversations, to install and monitor electronic tracking devices, pen registers and/or trap and trace devices, and to obtain access to stored communications, among other things. (18 U.S.C. §§ 2510 et seq., 2701 et seq., 3117 et seq., 3121 et seq.)
In 1994, Congress enacted the Communications Assistance Law Enforcement Act (CALEA), finding that “ ‘new and emerging telecommunications technologies pose problems for law enforcement’ [citation].” (U.S. Telecom Ass’n v. F.C.C. (D.C. Cir. 2000) 227 F.3d 450, 454 (U.S. Telecom).) CALEA requires “telecommunications carriers and equipment manufacturers to build into their networks technical capabilities to assist law enforcement with authorized interception of communications and ‘call-identifying information.’ ” (Ibid., citing 47 U.S.C. § 1002, italics added.)
“When a cellular telephone is on, regardless of whether it is making or receiving a voice or data call, it ‘periodically transmits a unique identification number to register its presence and location in the network.’ [Citation.]” (In re U.S. for an Order Authorizing Use of Two Pen (E.D.N.Y. 2008) 632 F.Supp.2d 202, 205; see also U.S. Telecom, supra, 227 F.3d 450.) Given this technological feature, a cellular telephone’s electronic location transmissions, whether in the form of cell-site-location data or the more precise GPS-device transmissions at issue here, are arguably akin to a mobile electronic tracking device, since they allow for real-time tracking of the individual in possession of the phone.
Based on two seminal Supreme Court cases concerning mobile tracking devices (United States v. Knotts (1983) 460 U.S. 276 and United States v. Karo (1984) 468 U.S. 705 (Karo)), several federal cases suggest the Fourth Amendment would not be offended by the warrantless tracking of electronic location transmissions so long as such transmissions are merely a “proxy for [a suspect’s] visually observable location.” (See, e.g., U.S. v. Forest (6th Cir. 2004) 355 F.3d 942, 951.) However, if the transmissions could result in a suspect being tracked inside a private residence or other similar area traditionally protected by the Fourth Amendment (a fact not in evidence in the record here), then a warrant based on probable cause would likely be required prior to interception and monitoring. (Ibid.)
Even if we were to assume (which, for purposes of this appeal, we need not decide) that the warrantless tracking of an individual through the GPS device on their cellular telephone, in public locations or otherwise, violates the Fourth Amendment, the record here shows there were exigent circumstances justifying the search. Exigent circumstances, including the potential destruction of ephemeral evidence, constitute a long-recognized exception to the warrant requirement. (People v. Thompson (2006) 38 Cal.4th 811, 818, 820 (Thompson).)
Detective Yoshitake sought the tracking from Sprint less than 30 minutes after the robbery suspect was seen fleeing in the white Escort, presumably covered, at least partly, with red dye from the bank dye pack. The red dye, evidence of the suspect’s involvement in the robbery, could easily be washed away and destroyed, and therefore, time was of the essence. Detective Yoshitake also expressed his concern the suspect might engage in further crime given his apparent frustration with the dye pack as observed by the witnesses and the resulting loss of most of the stolen money. Such facts could properly support a trial court’s finding of exigent circumstances. (See People v. Hull (1995) 34 Cal.App.4th 1448 [fluorescent powder on suspect’s hands from touching stolen truck speakers was vital evidence that could be lost, justifying warrantless entry into residence to make arrest where fleeing suspect had been tracked through electronic device in speakers]; Thompson, supra, 38 Cal.4th 811 [because blood alcohol dissipates quickly from the body, police were justified in entering house without a warrant to arrest suspect observed driving under the influence and inside the house still visibly intoxicated].)
We cannot say, on this record and given the state of applicable federal law, that defense counsel’s decision to forego the filing of a motion was without any conceivably rational basis. Attorneys must routinely “pick and choose their battles” in order to maintain credibility with the court and the jury throughout the entire trial process. “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citations.] “... [C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible....” ’ [Citation.]” (Jones, supra, 29 Cal.4th at p. 1254.)
Further, defendant has not demonstrated prejudice. The record reveals not only a direct witness identification of defendant carrying the bag emitting the red smoke from the bank dye pack and then fleeing the scene, but also strong circumstantial evidence from multiple other witnesses connecting defendant to the robbery. We therefore reject defendant’s claim of ineffective assistance. (Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
2. There Is Sufficient Evidence Supporting the Prior Serious Felony Allegation.
Defendant next contends there is insufficient evidence establishing that his prior conviction for federal bank robbery pursuant to Title 18 United States Code section 2113(a) (hereafter the federal statute, or 18 U.S.C. § 2113(a)) qualifies as a serious felony for purposes of California’s Three Strikes law. (§§ 667, subd. (b) and 1170.12.) Defendant argues there is no evidence demonstrating his prior bank robbery conviction was based on conduct falling within the first prong of paragraph (a) of the federal statute, i.e., a bank robbery involving force, violence or intimidation, and that therefore, the court must presume that only the lesser conduct underlies the conviction -- conduct which does not qualify as a serious felony under California law.
“On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.” (People v. Miles (2008) 43 Cal.4th 1074, 1083 (Miles).) We conclude the record contains sufficient evidence in support of the strike allegation.
The record here reflects defendant was convicted in 1996 of three counts in violation of the federal bank robbery statute codified at 18 U.S.C. § 2113(a). Defendant correctly points out that paragraph (a) of the federal statute sets forth two disjunctive offenses: “(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or [¶] Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny -- [¶] Shall be fined under this title or imprisoned not more than twenty years, or both.” (18 U.S.C. § 2113(a), italics added.)
Under California law, section 1192.7, subdivision (c) enumerates the criminal offenses deemed to be qualifying “serious felon[ies]” for purposes of sentence enhancements. “[R]obbery or bank robbery” is expressly enumerated. (§ 1192.7, subd. (c)(1).) Subdivision (d) of the California statute defines “bank robbery” to mean the taking or attempted taking “by force or violence, or by intimidation from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association.” (§ 1192.7, subd. (d), italics added.)
Therefore, to qualify as a strike under California law, a federal bank robbery must be an offense undertaken by force, violence or intimidation. The entry into a bank with the intent to commit a felony or larceny, akin to the second prong of paragraph (a) of the federal statute, is insufficient. “The California serious felony of bank robbery substantially coincides with the offense described in the first paragraph of section 2113(a).... [Fn. omitted.] However, there is no California serious felony that corresponds to the crime described in the second paragraph of section 2113(a). [Fn. omitted.] Thus, evidence that the defendant suffered a previous conviction under section 2113(a), standing alone, cannot establish that the conviction was for a serious felony under California law.” (Miles, supra, 43 Cal.4th at pp. 1081-1082.)
Respondent had the burden of proving the prior serious felony allegation beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566.) Where, as here, the fact of conviction pursuant to a specific statute is inadequate to prove qualification as a serious felony, the court may look to the entire record of conviction in the prior proceeding. (Miles, supra, 43 Cal.4th at p. 1082.) Under section 969b, the prison records related to the conviction are also admissible as proof. (Miles, at p. 1082; § 969b; see also People v. Prieto (2003) 30 Cal.4th 226, 258 [“ ‘prior convictions are normally proven by the use of documentary evidence alone’ ”].)
At the court trial on the sentence enhancement, respondent offered two witnesses to authenticate various records, including certified prison records from the United States Department of Justice, Federal Bureau of Prisons. These records included additional facts concerning the nature of defendant’s 1996 conviction beyond a bare reference to 18 U.S.C. § 2113(a). Specifically, the federal prison records demonstrate that one count of defendant’s conviction was for “armed” bank robbery in violation of both paragraph (a) and paragraph (d) of the federal statute, constituting a Class B felony. (18 U.S.C. § 3559.) Paragraph (d) of 18 U.S.C. § 2113 is an aggravated form of bank robbery which requires allegations and proof of an assault in the committing of the robbery or conduct that otherwise “puts in jeopardy the life of any person by the use of a dangerous weapon or device.” (18 U.S.C. § 2113(d).) Similar to Miles, where the record included additional facts showing the defendant had engaged in aggravated conduct during the bank robbery, including being “armed” and “kidnapping” (Miles, supra, at p. 1088), the record here contains sufficient additional facts which adequately support the finding that the first prong of paragraph (a) of the federal statute underlies count three of defendant’s 1996 federal bank robbery conviction. The prior conviction therefore qualifies as a serious felony under California law. The five-year sentence enhancement was properly imposed.
3. The Improper Penalties and Assessments Must Be Stricken.
Finally, defendant contends the penalties and assessments imposed by the trial court as part of his sentence are unauthorized. Respondent concedes the penalties and assessments were in error and that only the restitution fine, parole revocation restitution fine and the court security fees were properly imposed. We agree.
The $100 court construction penalty assessment (Gov. Code, § 70372, subd. (a)), added to both the $200 restitution fine and the $200 parole revocation restitution fine, is unauthorized. By the express language of the statute, the court construction penalty assessment does not apply to any restitution fine. (§ 70372, subd. (a)(3)(A); People v. Walz (2008) 160 Cal.App.4th 1364, 1372.)
The court also added to the court security fee various penalties and surcharges pursuant to four separate statutes: sections 1464, subdivision (a), and 1465.7, and Government Code sections 76000, subdivision (a), and 70372, subdivision (a). None of those four statutes may properly be used to impose additional assessments to a court security fee. The express language of the court security fee statute provides that the penalties authorized by Government Code section 76000 et seq. and the surcharge codified at section 1465.7 do not apply to court security fees. (§ 1465.8, subd. (b).) And the express language of section 1464 and Government Code section 70372 provides that those two penalty provisions only apply to a “fine, penalty, or forfeiture.” (§ 1464, subd. (a)(1); Gov. Code, § 70372, subd. (a)(1).) The Legislature has not denominated the court security fee a “fine, penalty, or forfeiture, ” and courts have routinely classified it as nonpunitive in nature, being imposed in both civil and criminal actions. (See People v. Alford (2007) 42 Cal.4th 749, 759; People v. Wallace (2004) 120 Cal.App.4th 867, 878.)
As such, we agree with the parties and find that all penalties and assessments imposed shall be stricken from defendant’s sentence except for the $200 restitution fine pursuant to section 1202.4, subdivision (b), the $200 parole revocation restitution fine pursuant to section 1202.45 (stayed), and the $20 court security fee pursuant to section 1465.8 as to each of the four counts for total security fees in the amount of $80. The abstract of judgment shall be modified accordingly.
DISPOSITION
The judgment is modified in the following respects: all penalties and assessments imposed shall be stricken from defendant’s sentence except for the $200 restitution fine pursuant to section 1202.4, subdivision (b); the $200 parole revocation restitution fine pursuant to section 1202.45 (stayed); and the $20 court security fee pursuant to section 1465.8, with respect to each of the four counts, for total court security fees in the amount of $80. In all other respects, the judgment is affirmed. The superior court is directed to prepare and transmit a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: BIGELOW, P.J., FLIER, J.