Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07759
DAVIS, Acting P.J.
A jury convicted defendant Steven McCarter of first degree residential burglary (Pen. Code, § 459) and two counts of receiving stolen property (§ 496, subd. (a)). The trial court found defendant McCarter had one prior serious felony (strike) conviction (§§ 667, subds. (a), (b)-(i), 1170.12) and had served three prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to an aggregate term of 16 years in state prison. Defendant McCarter appeals the trial court’s denial of his motion to suppress.
Hereafter, undesignated section references are to the Penal Code.
A jury convicted co defendant Samuel Fondren of first degree residential burglary (§ 459) and one count of receiving stolen property (§ 496, subd. (a)). The trial court found defendant had three prior serious felony (strike) convictions. (§§ 667, subds. (a), (b)-(i), 1170.12.)
Throughout the record, defendant Fondren’s name is spelled both “Fondren” and “Fondran.” Because the correct spelling of defendant’s name is not clear from the record, for consistency on this appeal, we will utilize the spelling used by his appellate counsel and in the abstract of judgment--Fondren.
The trial court sentenced defendant Fondren to 25 years to life for the burglary conviction, along with a consecutive sentence of 15 years for his serious felony convictions for a total aggregate term of 40 years to life. He received a second term of 40 years to life for the receiving stolen property conviction (including the sentence for the serious felony convictions), which was stayed pursuant to section 654. Defendant Fondren was also ordered to pay restitution, fines, and court security fees. Defendant Fondren appeals his sentence and imposition of the court security fee on count three. We will modify defendant Fondren’s sentence to 35 years to life and affirm the judgment as modified.
I. Defendant McCarter’s Claims on Appeal
Facts and Procedural History
On the morning of August 27, 2005, Sergeant Charles Husted of the Sacramento Police Department drove around Sacramento in his patrol car looking for a “parolee at large” by the name of William Thurston. At 10:20 a.m., the officer saw an individual, later identified as defendant McCarter, near a market. The officer testified that defendant resembled Mr. Thurston in both build and stature. In addition, the bicycle defendant was riding looked like the same bicycle Mr. Thurston had been riding the week prior when he had evaded the officer.
The officer pulled up next to defendant McCarter and asked “if [he] could speak to him.” The officer testified that defendant simply “stood there and [they] began to talk.” The officer asked defendant his name, and defendant McCarter identified himself. Next, the officer asked defendant if he was on probation or parole and defendant admitted that he was on parole. Sergeant Husted learned defendant’s parole status “within a minute” of his first contact with defendant.
After defendant McCarter admitted he was on parole, Sergeant Husted conducted a parole search of defendant. That search revealed a credit card in defendant’s back pocket with the name “Matthew Kanelos” on it. Defendant claimed he found the card in a dumpster. The officer determined that, at that time, the credit card was not reported stolen. The officer kept the credit card and let defendant go.
Later, it was discovered the card was in fact stolen, along with several other items from the home of Livia Moe and Tim Foster. Mr. Kanelos was in a band with Mr. Foster and had left his credit card in Mr. Foster’s home before they left to tour Europe. Defendants McCarter and Fondren were subsequently arrested for their respective roles in the burglary.
Defendant Fondren appeals only his sentence and the $20 court security fee. We do not summarize the facts as they relate to his role in the crime because they are not relevant to his claims on appeal.
Eventually, the two cases were consolidated and tried together in a bifurcated, dual jury trial. Prior to trial, defendant McCarter filed a motion to suppress the following evidence: (1) “All statements made by defendant”; (2) “All observations and opinions of the officers”; (3) “All communications that took place”; and (4) “Any all [sic] other evidence seized: including but not limited to all property seized from his person to wit: credit card.” Defendant McCarter’s motion was denied. He appeals that ruling.
Discussion
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
On appeal, defendant McCarter makes three arguments to support his contention the trial court erred in denying his motion to suppress: (1) he was unlawfully detained at the outset of his encounter with the officer because the officer did not know defendant was on parole when the officer stopped him; (2) the detention was unduly prolonged because the officer should have left defendant alone as soon as he realized defendant was not the man for whom the officer was looking; and (3) the questions asked by the officer constituted a warrant less “search,” conducted prior to the officer learning defendant’s parole status in violation of the Fourth Amendment.
A. Initial Contact and Questions
A detention “does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ [citation], the encounter is consensual and no reasonable suspicion [of criminal activity] is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. . . . ‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’” (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389]; see also Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
Accordingly, “[l]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. [Citations.] Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, [and] ask for identification . . . provided they do not induce cooperation by coercive means. [Citation.] If a reasonable person would feel free to terminate the encounter, then he or she has not been [detained].” (United States v. Drayton (2002) 536 U.S. 194, 200-201 [153 L.Ed.2d 242].)
In this case, the officer simply called out to defendant McCarter, who was riding a bicycle on a public street, and asked to speak with him. In response to the officer’s questions, defendant identified himself and admitted he was on parole. There is no evidence the officer used physical force or in any way coerced defendant into cooperating. Moreover, it was a de minims encounter, lasting only several minutes.
Accordingly, even though defendant McCarter was not the parolee for whom the officer was looking, the initial contact with defendant and subsequent questions were lawful.
B. Parole Search
It is undisputed that, in response to the officer’s questions, defendant McCarter admitted he was on parole. Once the officer knew defendant’s parole status, he had the right to search defendant, even without reasonable suspicion of criminal activity. (Samson v. California (2006) 547 U.S. ___, ___ [165 L.Ed.2d 250, 262 & fn. 5]; People v. Reyes (1998) 19 Cal.4th 743, 754.)
C. Investigative Questions
Defendant McCarter’s further argument that the questions asked by the officer were themselves a “search” in violation of the Fourth Amendment is unfounded. He cites no authority for his proposition and, as stated above, police officers are entitled to stop individuals on the street and ask them brief, investigatory questions.
The trial court properly denied defendant McCarter’s motion to suppress.
II. Defendant Fondren’s claims on appeal
Facts and Procedural History
At the conclusion of trial, defendant Fondren was convicted on all counts and the prior convictions alleged were found true by the trial court. On count one, defendant Fondren received a sentence of 25 years to life, plus three consecutive five-year terms under section 667, subdivision (a), for an aggregate term of 40 years to life.
On count three, defendant Fondren received a sentence of 25 years to life, plus three consecutive five-year terms under section 667, subdivision (a), for an aggregate term of 40 years to life. That sentence was stayed pursuant to section 654. Defendant Fondren was also ordered to pay restitution, fines, and $20 court security fees for each of his two convictions.
Defendant Fondren now appeals the court’s imposition of three consecutive five-year terms under section 667, subdivision (a), on count one, along with the court’s imposition of a $20 court security fee for his conviction on count three.
Discussion
A. Sentence Enhancement
Defendant claims the trial court erred “by imposing three consecutive five-year enhancements under section 667, subdivision (a), as two of the three prior serious felonies were not brought and tried separately.” “In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” (§ 667, subd. (a)(1), italics added.) Defendant thus seeks to have one of the enhancements stricken and his sentence on count one reduced by five years.
The People concede this issue. We note the record establishes the trial court mistakenly relied on defendant’s 1991 convictions for burglary and robbery to add another 10 years to defendant’s sentence under section 667, subdivision (a). These charges, however, were joined in the same information, and were tried together by a single jury. Defendant was sentenced for these convictions on the same day, at the conclusion of that trial. As a matter of law, the trial court could thus add only another five years to defendant’s current sentence for these prior convictions, not 10 years. (§ 667, subd. (a).) We accept the People’s concession and will modify the judgment to reflect that defendant’s sentence is 35 years to life. (See People v. Smith (2001) 24 Cal.4th 849, 851-854.)
B. $20 Court Security Fee
Defendant Fondren’s only remaining issue on appeal is his challenge to the $20 court security fee imposed on count three. Defendant makes two arguments to support his challenge to the court security fee. First, defendant argues the fee is an unlawful sentence because it is a civil disability that cannot be imposed unless he has been “convicted.” It is his position that he has not been “convicted” for purposes of imposing a civil disability because the sentence for count three was stayed. Second, defendant argues the fee violates the prohibition against double punishment for a single act or omission or an indivisible course of conduct because it was imposed for his conviction on count three, the sentence for which was stayed under section 654. Neither argument is persuasive.
1. Conviction
Penal code section 1465.8, subdivision (a), provides the court security fee “shall be imposed on every conviction for a criminal offense.” (Italics added.) In other words, for every offense that there is a conviction, the court must impose a $20 court security fee. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866 (Schoeb); accord, People v. Wallace (2004) 120 Cal.App.4th 867, 871 (Wallace).)
“[T]he term ‘conviction’ has no fixed definition and has been interpreted by the courts of this state to have various meanings, depending on the context in which the word is used.” (People v. Rhoads (1990) 221 Cal.App.3d 56, 60; accord, People v. Williams (1996) 49 Cal.App.4th 1632, 1637; see also People v. Martinez (1998) 62 Cal.App.4th 1454, 1460.) “As appears in the case law, the terms ‘convicted’ or ‘conviction’ do not have a uniform or unambiguous meaning in California. Sometimes they are used in a narrow sense signifying a verdict or guilty plea, some other times they are given a broader scope so as to include both the jury verdict (or guilty plea) and the judgment pronounced thereon.” (Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073, italics omitted.)
As discussed in Wallace, the purpose of section 1465.8 is maintaining adequate funding for court security and the court security fee is imposed in criminal, civil, probate and traffic matters for use of the court facilities to make them safer (Wallace, supra, 120 Cal.App.4th at p. 877); accordingly, the use of the term “conviction” in section 1465.8 must be interpreted in a manner comporting with this purpose.
The fee under section 1465.8, subdivision (a)(1), is triggered when there is a conviction. Pursuant to section 1465.8, subdivision (a)(2), a “conviction” may include: “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.” Other than this reference, section 1465.8 does not define what constitutes a “conviction.” Moreover, the fee is added to bail for an offense for which no court appearance is required. (§ 1465.8, subd. (c).) A $20 court security fee is also imposed “on the first paper filed on behalf of a plaintiff or a defendant in any limited and unlimited civil action or special proceeding and in probate matters.” (Wallace, supra, 120 Cal.App.4th at p. 875.)
The foregoing demonstrates the purpose of section 1465.8 is to ensure and maintain adequate funding for court security. Consequently, logic demands we interpret the term as broadly as possible and fix the point of a “conviction” at an early stage in the proceedings, i.e., upon the entry of a plea or adjudication of guilt. A jury found defendant Fondren guilty of the offenses for which he was charged, resulting in a “conviction.” Regardless of whether the sentence imposed was stayed, judgment was entered against him and he remains convicted of the offense. Therefore, the trial court was required to charge defendant the $20 court security fee.
2. Section 654
Contrary to defendant Fondren’s assertion, it matters not that count three was stayed pursuant to section 654. Section 654 bars double punishment for a single act or omission or an indivisible course of conduct. (§ 654; People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The $20 “court security fee” assessed under section 1465.8 is not a punitive measure. (Schoeb, supra, 132 Cal.App.4th at p. 866; see Wallace, supra, 120 Cal.App.4th at p. 878.)
The express legislative purpose of section 1465.8 is non punitive: “[t]o ensure and maintain adequate funding for court security.” (§ 1465.8, subd. (a)(1).) The assessment is labeled a “fee” throughout the statute, as opposed to a “penalty” or a “fine” (§ 1465.8, subd. (b)), and does not increase based on the severity of the crime committed. As set forth in Wallace, the legislative history demonstrates that section 1465.8 is part of a non punitive civil regulatory scheme designed to strengthen the finances of the court system. (Wallace, supra, 120 Cal.App.4th at pp. 871-878; see also Schoeb, supra, 132 Cal.App.4th at p. 866.) These fees apply to civil litigants as well as criminal defendants, and were triggered by budgetary concerns. (Wallace, supra, 120 Cal.App.4th at pp. 871-878; Schoeb, supra, 132 Cal.App.4th at p. 866.) The fees collected are specifically earmarked for the “Trial Court Trust Fund.” (§ 1465.8, subd. (d).)
Given the express legislative intent of section 1465.8, “‘“only the clearest proof” will suffice’” to transmute what has been designated a civil remedy into a criminal penalty. (See Smith v. Doe (2003) 538 U.S. 84, 92 [155 L.Ed.2d 164].) Defendant does not point to any such “proof” and we are unable to find any. The fee is relatively minor in amount and is collected from all litigants. (See Smith, supra, 538 U.S. at p. 100 [where a burden is “minor and indirect, its effects are unlikely to be punitive”].) Moreover, imposition of the fee does not serve any of the traditionally recognized purposes of punishment, including deterrence or retribution; instead it promotes court security. (Wallace, supra, 120 Cal.App.4th at p. 878 [the court security fee “does not promote the traditional aims of punishment--it promotes court security”].)
Thus, rather than constituting a “fine,” the $20 charge is more analogous to a “user fee” imposed on certain consumers of court security--convicted criminals. (See People v. Rivera (1998) 65 Cal.App.4th 705, 711 [booking fee and jail classification fee not punitive, but effectively “an administrative ‘user’ fee,” intended to address the state’s fiscal crisis].)
In support of his argument that the court security fee is unlawful, defendant quotes the following language from People v. Pearson (1986) 42 Cal.3d 351, 361 (Pearson): “[I]t is clear that section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions.” We have already determined the court security fee is not punitive, i.e., not a punishment. Defendant’s argument raises the question whether the fee is nevertheless a “disadvantage,” as that term is used in Pearson. Defendant cites no published authority for this proposition and we can find none.
In Pearson, the California Supreme Court considered whether a sentence stayed under section 654 could be used to enhance a later sentence. (Pearson, supra, 42 Cal.3d at p. 358.) In the portion of the opinion relied on by defendant, the court referred to such a use as a “disadvantage”: “In [In re] Wright [(1967) 65 Cal.2d 650] we disapproved of the process of sentencing defendants to concurrent terms based on the same act precisely because of the danger that such defendants would be disadvantaged under recidivist provisions that were similar to the enhancement provisions discussed here. In approving the procedure used in [People v.] Niles [(1964) 227 Cal.App.2d 749], we necessarily assumed the defendant would thereby be protected from such disadvantages.” (Pearson, supra, 42 Cal.3d at p. 361, italics added.)
In a later portion of the opinion, the court refers to this same use of a stayed conviction as a punishment: “to enhance a defendant’s sentence because of a stayed conviction would constitute multiple punishment and is prohibited by section 654.” (Pearson, supra, 42 Cal.3dat p. 363, italics added.)
Consequently, when read in the context of the opinion, it is apparent the court used the term “disadvantage” as a synonym for “punishment,” not to mean something other than punishment. Our reading is supported by the language of the statute itself: “An act or omission which is made punishable in different ways by different provisions of [the Penal] code may be punished under either of such provisions, but in no case can it be punished under more than one[.]” (§ 654, italics added.) We conclude section 654 is inapplicable to the court security fee.
Disposition
The judgment as to defendant McCarter is affirmed. The judgment as to defendant Fondren is modified to a sentence of 35 years to life. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur:
RAYE, J., MORRISON, J.