Opinion
F050152
12-8-2006
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GUERRERO GARZA, Defendant and Appellant.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Harris, Acting P.J., Wiseman, J. and Cornell, J.
STATEMENT OF THE CASE
On November 6, 2003, the Fresno County District Attorney filed an information in superior court charging appellant as follows:
Count 1—vehicular manslaughter without gross negligence (Pen. Code, § 192, subd. (c)(3); Veh. Code, § 23153, subds. (a), (b));
Count 2—driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) with two allegations of personal infliction of great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8), 667.5, subd. (c)(8)) and two allegations of proximate causation of the death or bodily injury of multiple victims (Veh. Code, § 23558);
Count 3—driving with a .08 percent blood alcohol level causing injury (Veh. Code, § 23153, subd. (b)) with two allegations of personal infliction of great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8), 667.5, subd. (c)(8)) and two allegations of proximate causation of the death or bodily injury of multiple victims (Veh. Code, § 23558);
Count 4—being an unlicensed driver (Veh. Code, § 12500, subd. (a));
Count 5—transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a));
Count 6—possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a));
Count 7—misdemeanor driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a));
Count 8—misdemeanor possession of 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b));
Counts 9 and 10—assault upon a peace officer or firefighter (Pen. Code, § 245, subd. (c)) with personal infliction of great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8), 667.5, subd. (c)(8));
Count 11—evading an officer (Veh. Code, § 2800.2, subd. (a)); and
Count 12—resisting an executive officer (Pen. Code, § 69).
The district attorney specially alleged appellant had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior prison term (Pen. Code, § 667.5, subd. (b)), and a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)).
On November 17, 2003, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On April 7, 2004, appellant moved to sever the counts and special allegations into three cases because the charges arose from three separate incidents (Pen. Code, § 954).
On April 21, 2004, the court granted the motion for severance.
On August 16, 2005, the court set aside the order of severance, consolidated the three cases, and indicated a potential 15-year prison sentence. Appellant pleaded guilty to all substantive counts and admitted all of the special allegations with the exception of the prior prison term allegation (Pen. Code, § 667.5, subd. (b)).
As to counts 1 through 4, the court accepted appellants plea of guilty to one violation of Penal Code section 192, subdivision (c)(3), one violation of Vehicle Code section 23153, subdivision (a), one violation of Vehicle Code section 23153, subdivision (b), one violation of Vehicle Code section 12500, subdivision (a), the admission of four Penal Code section 12022.7 allegations and the admission of four Vehicle Code section 23558 allegations.
As to counts 5 through 8, the court accepted appellants plea of guilty to one violation of Health and Safety Code section 11379, subdivision (a), one violation of Health and Safety Code section 11377, subdivision (a), one violation of Health and Safety Code section 11357, subdivision (b), and one violation of Vehicle Code section 14601.1, subdivision (a).
As to counts 9 through 12, the court accepted appellants plea of guilty to two violations of Penal Code section 245, subdivision (c), and admission of two allegations under Penal Code section 12022.7, subdivision (a). Appellant also pleaded guilty to one violation of Vehicle Code section 2800.2, and one violation of Penal Code section 69. He admitted the truth of a June 20, 1991, felony conviction as a strike prior, serious felony, and basis for a prior prison term. The court accepted appellants pleas and admissions and found a factual basis.
On February 27, 2006, the court denied appellant probation and sentenced him to the negotiated term of 15 years in state prison. The court ordered appellant to pay restitution of $6,034.60 to one derivative victim of the deceased victim and $125 to a second derivative victim. The court also imposed a $3,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45). The court awarded a total of 1,113 days of custody credits and imposed a court security fee in the sum of $240 ($80 per case or $20 per count). (Pen. Code, § 1465.8, subd. (a)(1).)
The court selected count 2 (Veh. Code, § 23153, subd. (a)) as the base term and imposed the aggravated term of three years, 2 three-year terms for the related great bodily injury enhancements (Pen. Code, § 12022.7), five years for the serious felony allegation (Pen. Code, § 667, subd. (a)), and one year for the multiple victims allegation (Veh. Code, § 23558).
The court struck a second Vehicle Code section 23558 allegation, made count 1 (Pen. Code, § 192, subd. (c)(3)) a subordinate count, imposed the middle term on that count, and directed that term to run concurrent to the term imposed on count 2. The court imposed a sentence on count 3 identical to that imposed on count 2 and stayed all terms on count 3 (Pen. Code, § 654). On counts 4 and 7, the court gave credit for time served. On count 5, the court imposed the middle term of three years and directed that term to run concurrent to those imposed on other counts. On count 6, the court ordered any term stricken because this was a lesser-included offense of that charged in count 5. On count 8, the court imposed no fine and no term of imprisonment. On each of counts 9 and 10, the court imposed the middle term of four years and a three-year enhancement (Pen. Code, § 12022.7). The court directed that these sentences be concurrent as to each other and as to all other terms imposed. On counts 11 and 12, the court imposed the middle term of two years and ordered those sentences to run concurrent to all of the others.
On April 7, 2006, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
The facts are taken from the probation report dated December 23, 2005:
" Counts One, Two, Three and Four: [¶]...[¶]
"On December 9, 2002, at approximately 10:30 p.m., the defendant claimed he had stopped at the stop sign at the intersection of Conejo and Temperance. He proceeded through the intersection when a vehicle driven by Robert Powell also entered the intersection. Powell was not required to stop. The vehicles collided.
"California Highway Patrol officers arrived on the scene. They made contact with the defendant, Michael Garza, who was questioned about the accident. One of the officers noticed that he had an odor of an alcoholic beverage emitting from his breath. His eyes were red and watery. He admitted that he had drunk one to two beers three hours prior to the questioning. He had a laceration on his face and was complaining of pain to his mid-section. A Field Sobriety Test was explained to him, but he failed it. He was too weak to provide an accurate breath test. His results were .074% and .053%. Based on his signs of intoxication, the officer felt his BAC level was greater than .08%.
"The defendants passenger, Sylvia Rodriguez, sustained a broken right arm and leg. She also had lacerations on her face and contusions around her eyes. She required medical treatment at University Medical Center.
"Robert Powell was injured and his passenger, Danita Robinson, died. Robert Powell had lacerations to his forehead and he required medical treatment at University Medical Center. Danita Robinson sustained a fatal injury and was pronounced dead at the scene by the Selma Fire Department.
"Robert Powells vehicle came to rest on its wheels, up against a pole. It sustained major collision damage. The hood was buckled, the left doors were pushed inwards, the windshield was shattered along with the left side windows, the radiator was punctured, the front end was pushed to the left and the front bumper/grill had fallen off.
"The defendants vehicle had rolled over, but it came to rest on its wheels. The hood was torn off and the right side door was pushed inward to the drivers side, the right fender was missing and the windows were shattered.
"The defendant did not have a valid drivers license and he was unsure if his vehicle was insured. Robert Powell did not have insurance. His vehicles registration was expired and his drivers license was also suspended.
" Counts Five, Six, Seven, and Eight: [¶]...[¶]
"On December 31, 2002, at approximately 11:38 p.m. the defendant, Michael Garza, was stopped for driving a vehicle without a license plate. The officer asked the defendant for his drivers license and he replied it was expired. The officer asked for his name and if there was anything on him or the vehicle that he should be concerned about. The defendant replied he had nothing on him and gave the officer consent to search his person and the vehicle. The officer found nothing on the defendant, but upon the search of the vehicle, he found a small box stuffed in the space between the two front seats. The box contained 1.0 grams of methamphetamine and 2.0 grams of marijuana.
"The defendant was read his Miranda rights and placed under arrest. He told the officer the drugs were for personal use. He said that he had been injecting methamphetamine for the last couple of months. He said that he had not used for the last four to five days, but prior to that he had been using daily.
" Counts Nine, Ten[,] Eleven, and Twelve: [¶]...[¶]
"On June 8, [2003], at approximately 9:49 p.m., the defendant, Michael Garza, was observed driving a vehicle without functional taillights. He failed to stop for the officer and drove away at a high rate of speed. Other officers joined the pursuit activating their red lights and sirens, and observed the defendant running red lights at intersections at a high rate of speed. Approaching an intersection with visible marked Fresno Police vehicle, the defendant veered out of his lane and struck the front of the police car. The defendant continued to drive away at which time other officers pitted his vehicle and brought it to a stop. A foot pursuit ensued and the defendant was able to get away from officers. The defendant was identified by items left in his vehicle and information from the scene. The defendant remained at large until July 6, 2003.
"In all three patrol vehicles were damaged. The two officers, Todd Miller, and Rebecca Vasquez, who were in the vehicle that the defendant veered at and struck were injured and required medical attention.
"On July 6, 2003, at approximately 4:26 a.m., the defendant, Michael Garza, was operating a different vehicle and once again he led officers on a high speed chase. The defendant ran several red lights and failed to yield for officers until he stopped as a result of the pit maneuver. The defendant had a female passenger in the vehicle with outstanding warrants. The defendant did not comply with the officers demanding to put his hands in the air. The defendant was moving his hands towards his waist area at which point an officer fired one round of less lethal ammunition. The defendant continued to ignore the officers demands and moved his hands towards the gear shift of the vehicle and two more rounds of less than lethal force were fired, hitting the defendant on his upper right leg. At this point the defendant complied and was arrested."
Defense
The probation officer interviewed appellant at the Fresno County Jail on October 17, 2005, and reported in relevant part:
"... The defendant said that his car was hit. He said that he was driving at the intersection of Conejo and Temperance when he stopped at the stop sign and then was going through the intersection and he was `t-boned. He said, `I was hit. He admitted he had drunk a couple of beers prior to driving. He believes all of the evidence shows that he was hit. He is upset because he believes he is not able to go to trial on the vehicular manslaughter case. In regards to the other cases the defendant said that he does not have a problem admitting to what he did. He admits he was evading officers and tried to get away. He said he did not intend to hit the officers."
DISCUSSION
Appellants sole contention on appeal is that the trial court erroneously ordered appellant to pay a $240 security fee when the underlying offenses occurred prior to enactment of the statute that authorized its imposition.
We initially note the California Supreme Court has granted review in two recent cases, one of which found the court security fee could not be imposed retrospectively (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415), and another which concluded Penal Code section 3 did not prevent retroactive application of section 1465.8 (People v. Alford (2006) 137 Cal. App.4th 612, review granted May 10, 2006, S142508).
The trial court imposed sentence on February 27, 2006, stating in relevant part without defense objection: "The court will order the court security fee pursuant to Penal Code Section 1465.8 subdivision (a) subdivision (1) of 20 dollars."
The abstract of judgment stated in relevant part: "The Court orders the defendant to pay the court security fees pursuant to PC 1465.8(a)(1). This amount comes to $240.00. This is broken down as $80.00 per case ($20.00 per count)[.]"
Appellant now contends his offenses occurred between December 9, 2002 and June 8, 2003, all prior to the effective date of Penal Code section 1465.8, the applicable statute. He submits his contention is not waived for lack of an objection because the imposition of a retroactive security fee constitutes an illegal sentence under these circumstances. He further contends nothing in the legislative history of section 1465.8 suggests that the security fee was to be applied retroactively in the instant case.
Court security fees are authorized in criminal cases by Penal Code section 1465.8, which went into effect in August of 2003. (Stats. 2003, ch. 159, § 25.) The statute states, in part: "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 ...." (Pen. Code § 1465.8, subd. (a)( 1).) The statute further provides the fees collected shall be sent to the state for deposit in the "Trial Court Trust Fund." (Id., subd. (d).)
The distinction between fines and fees has been made, for example, for purposes of deciding whether a monetary assessment, imposed on the authority of a statute enacted after the defendants offense but before sentencing, implicates the prohibition against ex post facto laws. The issue in that situation is whether the assessment is penal in nature.
In People v. Rivera (1998) 65 Cal.App.4th 705, the assessment in question was a "criminal justice administration fee" imposed under Government Code section 29550.2, subdivision (a), to cover the costs of arresting and booking persons convicted of crimes. The court characterized the assessment as a form of user fee, and distinguished it from a restitution fine, which serves punitive as well as restorative purposes. On that basis, the court held retroactive application of the fee statute did not violate the constitutional prohibition against ex post facto laws. (Rivera, supra, at pp. 710-711.)
More recently, in People v. Wallace (2004) 120 Cal.App.4th 867, Division Five of the Court of Appeal, Second Appellate District, came to the same conclusion with respect to the court security fee in particular. The court discussed the purpose of the fee at length and held it was not punitive. Thus, the fee could be imposed, without violating the ex post facto prohibition, on a defendant whose crime preceded the enactment of Penal Code section 1465.8. The appellate court noted the court security fee is intended to cover administrative costs, not to punish the offender. (People v. Wallace, supra, at pp. 874-875, 878-879.)
As we stated above, the fee is to be paid into the "Trial Court Trust Fund," which was established by Government Code section 68085. Subdivision (a)(1) of that code section provides: "There is hereby established the Trial Court Trust Fund ... for the purpose of funding trial court operations, as defined in [Government Code] Section 77003." This latter section includes within the definition of court operations the salaries of court personnel, court-appointed counsel in juvenile proceedings, services and supplies relating to court operations and, subject to some limitations, the actual indirect costs for county general services attributable to court operations. (Gov. Code, § 77003, subd. (a).)
Appellant acknowledges that the Penal Code section 1465.8 security fee is not "`punishment" for purposes of ex post facto analysis pursuant to People v. Wallace, supra, 120 Cal.App.4th 867. However, he maintains there is nothing in the legislative history of the statute that provides a "`clear and compelling" indication that the new security fee was to be applied retroactively. He further contends Penal Code section 3 precludes retroactivity under the circumstances of the instant case. Penal Code section 3 states: "Not Retroactive. No part of it [referring to the Penal Code] is retroactive, unless expressly so declared." Penal Code section 3 "embodies the general rule that when there is nothing to indicate the contrary it will be presumed that the Legislature intended a statute to operate prospectively and not retroactively. `That rule of construction, however, is not a straitjacket...." (In re Chavez (2004) 114 Cal.App.4th 989, 993.) "There remains the question of what the terms `prospective and `retrospective mean." (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.)
"Certainly a law is retrospective if it defines past conduct as a crime, increases the punishment for such conduct, or eliminates a defense to a criminal charge based on such conduct. Such a law, as applied to a past crime, `change[s] the legal consequences of an act completed before [the laws] effective date, namely the defendants criminal behavior. [Citations.] Application of such a law to past crimes would also violate the constitutional rule against ex post facto legislation." (Tapia v. Superior Court, supra, 53 Cal.3d at p. 288.) However, "[a] statute does not operate retrospectively simply because its application depends on facts or conditions existing before its enactment." (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) "`In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a partys liability for, an event, transaction, or conduct that was completed before the laws effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date. [Citation.]" (People v. Williams (2004) 118 Cal.App.4th 735, 747.)
Here, although appellant committed the instant offenses before the effective date of Penal Code section 1465.8, he pleaded guilty in 2005 and was sentenced in 2006. Therefore, his convictions did not occur until after the effective date of the statute. In our view, although appellants convictions were necessarily dependent on his earlier commission of the instant offenses, the last act or event necessary to trigger the legal consequence of the court security fee was, collectively, appellants convictions. Therefore, Penal Code section 1465.8 does not operate retroactively and the imposition of the court security fee does not violate Penal Code section 3.
DISPOSITION
The judgment is affirmed.