Opinion
A130265
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. FREDDY GREEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. Nos. SCN-207404, SCN-209239)
Following revocation of defendant's probation in two separate cases, he was sentenced to an aggregate state prison term of four years eight months, and in both cases the court imposed a $30 court facilities fee (Gov. Code, § 70373, subd. (a)) and a $30 court security fee (Pen. Code, § 1465.8). Defendant claims that the court facilities fee was improperly imposed for a conviction that predated the effective date of the statute, and the court security fee must be reduced to $20. We agree and modify the judgment accordingly.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of defendant's guilty pleas and the issues raised in this appeal, we need not recite the evidence pertinent to the underlying assault and burglary convictions.
In two cases filed against defendant, he entered negotiated pleas of guilty: the first, on December 3, 2008, in case number 207404, to assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)); the second, on June 23, 2009, in case number 209239, to second degree burglary (Pen. Code, § 459). In each case he received a grant of probation for a period of three years.
A consolidated probation revocation hearing was held on September 8, 2010. Defendant was found in violation of his probation, his probation was revoked, and sentence was imposed in the two cases: the upper term of four years for the assault conviction, and a consecutive term of eight months - one-third of the middle term - for the burglary conviction. In each case the court also imposed a court security fee of $30 and a court facilities fee of $30. This appeal followed.
DISCUSSION
I. The Court Facilities Fee.
Defendant argues that the trial court had no authority to impose the court facilities fee in case number 207404 for the assault conviction that occurred before the effective date of Government Code section 70373. Defendant points out that his guilty plea to assault with force likely to cause great bodily injury was entered on December 3, 2008, while Government Code section 70373 was enacted in September 2008, and became effective on January 1, 2009. (See Stats. 2008, ch. 311, § 6.5; People v. Fleury (2010) 182 Cal.App.4th 1486, 1489.)
Government Code section 70373, subdivision (a)(1), provides that "[t]o ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense" in the amount of $30 for each misdemeanor or felony.
As the Attorney General acknowledges, defendant is correct. Recent case law has established that the Legislature intended section 70373 to apply to convictions that are entered after the effective date of the statute. (People v. Mendez (2010) 188 Cal.App.4th 47, 60-61; People v. Phillips (2010) 186 Cal.App.4th 475, 477; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414-1415.) In the present case, "defendant was convicted when he entered his plea. Since the statute only applies to cases in which the conviction occurs on or after its effective date, it does not apply to this case." (People v. Davis (2010) 185 Cal.App.4th 998, 1001.) The imposition of a court facilities fee in case number 207404 must be stricken.
II. The $30 Court Securities Fee.
For essentially the same reason defendant also claims that the court security fee imposed by the court in each case pursuant to Penal Code section 1465.8 (section 1465.8) must be reduced to $20. Subdivision (a) of section 1465.8 was amended effective July 28, 2009, to substitute a fee of $30 for $20. Defendant's offenses and convictions both occurred before the statute was amended to increase the amount of the court security fee to $30. (Stats. 2009-2010, 4th Ex.Sess. 2009, ch. 22, § 30 (S.B. 13), eff. July 28, 2009.) He maintains that the "date of the subject convictions" determines the application of the statute, and therefore he cannot be charged $30 fees for convictions that predated the statutory amendment.
In 2010, the statute was amended again to increase the fee to $40. (Stats. 2010, ch. 720, § 33. (S.B. 857), eff. July 1, 2011.)
Again, the Attorney General prudently concedes that the judgment must be modified. In People v. Alford (2007) 42 Cal.4th 749, 757, the California Supreme Court concluded that while "the fee was imposed for a nonpunitive purpose," the legislative history of section 1465.8 "supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date." (Alford, supra, at p. 754.) The same is true of the 2009 amendment of the statute to increase the fee to $30. The operative version of section 1465.8 that applies to defendant's convictions incurred before July 28, 2009, authorizes only a $20 court security fee.
DISPOSITION
Accordingly, the judgment is modified to strike the imposition of the $30 court facilities fee in case number 207404, and to decrease the amount of the court security fees from $30 to $20 in both cases. The clerk of the superior court is directed to modify both abstracts of judgment as set forth above, and the clerk is to then forward a copy of the amended abstract of judgment to the California Department of Corrections. As so modified the judgment is affirmed.
Dondero, J. We concur: Marchiano, P. J. Banke, J.