Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR034691B Jennifer R.S. Detjen, Judge.
Cannon & Harris and Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Hill, J. and Poochigian, J.
STATEMENT OF THE CASE
On April 10, 2009, the Madera County District Attorney filed an information in superior court charging appellant Dawon McClelan with two counts of robbery (Pen. Code, § 211) with use of a deadly weapon (§ 12022, subd. (b)(1)). On April 16, 2009, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations. On September 23, 2009, jury trial commenced. On September 25, 2009, the court declared a mistrial after the jury was unable to reach a verdict after extensive deliberations.
All further statutory citations are to the Penal Code unless otherwise indicated.
On November 5, 2009, appellant entered into a plea agreement with the prosecution. Appellant pleaded guilty to count 1 and admitted the truth of the related special allegation. On motion of the district attorney, the court dismissed count 2 and the related special allegation. On December 2, 2009, appellant filed a statement in mitigation (§ 1170, subd. (b), Cal. Rules of Court, rule 4.437).
On December 14, 2009, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to the upper term of five years on count 1 with a consecutive one-year term for the related enhancement. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and imposed a variety of fines, fees, and assessments, including a $30 court security fee.
At the sentencing hearing, the court ordered appellant to pay a total of $750 under Penal Code section 672 and indicated that the sum included “penalties, assessments and surcharges as listed on page six of the [probation] report.”
On December 23, 2009, appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea (Cal. Rules of Court, rule 8.304).
STATEMENT OF FACTS
The following facts underlying count 1are taken from the pre-plea report and recommendation of the probation officer filed June 12, 2009:
“On March 16, 2009, at approximately 8:00 p.m. Madera Police were called to a convenience store at 177 E. Almond Avenue, Madera regarding a robbery. The store clerk, Sucha Singh Deol, was contacted by officers at the store. He reported he was behind the counter in the store when Michael Sostre and Dawon McClelan entered the store with a third unidentified person. He stated McClelan and Sostre made purchases at the counter and when he opened the cash register, McClelan jumped over the counter. At the Preliminary hearing Mr. Deol testified that McClelan pushed him and held a knife to his neck. He testified that McClelan and Sostre took $600 or $700 cash from the register. He stated the unidentified person stole 30 packs of cigarettes valued at $133 and placed the cigarettes inside a back-pack.”
DISCUSSION
THE SUPERIOR COURT PROPERLY IMPOSED A $30 SECURITY FEE RATHER THAN A $20 SECURITY FEE
Appellant contends the $30 court security fee imposed by the trial court must be reversed and reduced to reflect the $20 court security fee in effect on the date of the offense. Appellant submits the $10 increase in the fee, enacted by the Legislature effective July 28, 2009, did not apply to the March 16, 2009, offense in the instant case.
At the time of the March 16, 2009, robbery, section 1465.8 required the imposition of a $20 fee for every conviction of a criminal offense, “[t]o ensure and maintain adequate funding for court security ….” (§ 1465.8, subd. (a)(1).) The Legislature subsequently amended section 1465.8 to provide for a $10 increase in the court security fee as follows:
“(a)(1) To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense.… [¶] … [¶]
“(f) This section shall remain in effect only until July 1, 2011, and as of that date is repealed, unless a later enacted statute, that is enacted before July 1, 2011, deletes or extends that date.” (Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 22, § 29, p. 5346 [Sen. Bill No. 13, No. 3 West’s Cal. Session Laws (2010)].)
The amended statute did not address the question of the retroactivity or prospectivity of the $30 security fee. Under the general interpretive rule, statutes are presumed to operate prospectively. (See § 3 ; Strauss v. Horton (2009) 46 Cal.4th 364, 470.) However, the newly-chaptered legislation did state:
Section 3 states: “No part of it [the Penal Code] is retroactive, unless expressly so declared.”
“SEC. 36. This act addresses the fiscal emergency declared by the Governor by proclaiming on July 1, 2009, pursuant to subdivision (f) of Section 10 of Article IV of the California Constitution. [¶]... [¶]
“SEC. 38. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
“In order to make the necessary statutory changes to implement provisions related to public safety and the courts in the Budget Act of 2009, it is necessary for this act to take effect immediately.” (Stats. 2009, 4th Ex. Sess., 2009-2010, ch. 22, §§ 36, 38, p. 5350 [Sen. Bill No. 13, No. 3 West’s Cal. Session Laws (2010)].)
In People v. Alford (2007) 42 Cal.4th 749, the Supreme Court addressed the applicability of the $20 court security fee under section 1465.8, which took effect shortly after the defendant committed a robbery, but before he was convicted. The Supreme Court held section 3 was not implicated and the $20 court security fee did not violate the prohibition against ex post facto laws. The Supreme Court held the legislative history of section 1465.8 supported the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date. The fee was projected to generate $34 million in revenue and the Budget Act of 2003 reduced, by that same amount, support for the trial courts from the General Fund. In the Supreme Court’s view, the Legislature necessarily anticipated the full realization of the $34 million to be generated by the court security fee during the budget year. Moreover, the enactment of section 1465.8 as part of an urgency measure to implement the Budget Act of 2003 revealed the Legislature’s intent to implement the directives of section 1465.8 immediately after it became operative. The Legislature intended the $20 fee to operate as quickly as feasible, consistent with the overall goals of the Budget Act of 2003. (People v. Alford, supra, 42 Cal.4th at pp. 753-755.)
Respondent submits that chapter 22, which enacted the version of section 1465.8 now in question, presents a similar situation. Two uncodified sections are of particular interest. Section 36 of chapter 22 addressed the fiscal emergency declared by the Governor. Section 38 of chapter 22 indicated the act was an urgency statute necessary for the immediate preservation of the public peace, health, or safety (Cal. Const., art. IV). Section 38 based the necessity for an urgency statute on the need for “necessary statutory changes to implement provisions related to public safety and the courts in the Budget Act of 2009.…” (Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 22, § 38, p. 5350 [Sen. Bill No. 13, No. 3 West’s Cal. Session Laws (2010)].) Appellant maintains “[t]he Legislature did not expressly provide that the $10 increase in Penal Code section 1465.8 should operate retroactively and such an intent cannot be divined by the this court without doing violence to long-standing rules regarding retroactivity.”
In our view, the court imposed the court security fee after the operative date of the increase, appellant’s conviction was subject to the increase, and the judgment must be affirmed.
DISPOSITION
The judgment is affirmed.