Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County., Super. Ct. No. BF119690A Sidney P. Chapin, Judge.
Thea J. Greenhalgh, 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., Cornell, J., and Gomes, J.
On September 21, 2007, a jury convicted appellant, Eusebio Ramon, of receiving a stolen vehicle (count 1/Pen. Code, § 496d), being a felon in possession of a firearm (count 2/§ 12021, subd. (a)(1)), possession of a firearm in a public place by a gang member (count 3/§ 12031, subd. (a)(2)(C)), and possession of an unregistered firearm (count 4/§ 12031, subd. (a)(2)(F)). The jury also found true a gang enhancement (§ 186.22, subd. (b)(1)) in counts 1, 2, and 4. In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)), two prior prison term enhancements (§ 667.5, subd. (b)), and allegations that Ramon had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
Unless indicated otherwise, all further statutory references are to the Penal Code.
Thereafter, the court sentenced Ramon to an aggregate term of 15 years 4 months as follows: the middle term of two years on count 1, doubled to four years because of Ramon’s prior strike conviction, a three-year gang enhancement on that count, a 16-month term on count 2, one-third the middle term of two years, doubled to 16 months because of Ramon’s prior strike conviction, a one-year gang enhancement on that count (one-third the middle term of three years), a five-year serious felony enhancement, a one-year prior prison term enhancement, and stayed terms on the remaining count and enhancements. The court also imposed a $20 fee pursuant to section 1465.8 on each count.
Following a timely appeal, this court remanded the matter for resentencing after determining that the evidence was insufficient to sustain the gang enhancement and that Ramon could not be convicted twice of violating section 12031 for possessing the same firearm.
On November 2, 2009, the trial court struck the serious felony enhancement and sentenced Ramon to an aggregate term of seven years four months: the midterm of two years on count 1, doubled to four years because of Ramon’s prior strike conviction, a 16-month term on count 2, one-third the middle term of two years, doubled to 16 months because of Ramon’s prior strike conviction, two one-year prior prison term enhancements and a stayed term on the remaining count. The trial court, without objection, also imposed a $30 fee pursuant to section 1465.8 on each count and a $30 fee pursuant to Government Code section 70373 on each count.
On appeal, Ramon contends: 1) the court erred in imposing a fee pursuant to Government Code section 70373 on each count because his conviction occurred prior to the effective date of that statute; and 2) the court violated the double jeopardy and due process clauses of the California Constitution when in each count, it imposed a $30 fee pursuant to Government Code section 70373 and increased the fee imposed pursuant to section 1465.8 from $20 to $30. We will find merit to Ramon’s first contention and strike the fees imposed pursuant to Government Code section 70373. In all other respects, we will affirm.
The facts underlying Ramon’s convictions are omitted because they are not germane to the issues raised on appeal.
The Government Code Section 70373 Fees
Government Code section 70373 was enacted in 2008 and became effective on January 1, 2009. (Gov. Code, § 70373, added by Stats. 2008, ch. 311 (S.B. 1407), § 6.5.) This code section, in pertinent part, provides:
“To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony ….” (Gov. Code, § 70373, subd. (a)(1).)
Ramon contends that because he was convicted of the above offenses prior to the enactment of Government Code section 70373, the court erred in imposing a $30 fee pursuant to this section on each of his convictions. Respondent contends that Ramon waived any error in the court’s imposition of these fees by his failure to object in the trial court. We agree with Ramon.
This court recently held that Government Code section 70373 applies from the date of a defendant’s conviction, not the date the offense was committed. (People v. Phillips (2010) 186 Cal.App.4th 475, 477-479; see also People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415.) We find these cases controlling and apply their holdings here. Therefore, since Ramon’s convictions occurred prior to the effective date of Government Code section 70373, the court lacked jurisdiction to impose a $30 fee pursuant to that section on each of his convictions and its imposition of these fees constituted an unauthorized sentence.
In People v. Scott (1994) 9 Cal.4th 331, the Supreme Court held that “the [forfeiture] doctrine [applies] to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (Id. at p. 353.) However, “the ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.” (Id. at p. 354.) Therefore, “claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Ibid.)
In view of our conclusion that the court’s imposition of a $30 Government Code section 70373 fee on each conviction constituted an unauthorized sentence, in accord with Scott, we further conclude that Ramon did not waive this issue on appeal by his failure to object in the trial court.
The Increase in the Section 1465.8 Fee
When Ramon was convicted on the underlying charges in this matter, section 1465.8 required the court to impose a $20 fee “[t]o ensure and maintain adequate funding for court security[.]” When Ramon was resentenced, this section allowed the court to impose a $30 security fee. (Stats. 2009-2010, 4th Ex. Sess., ch. 22 (S.B. 13), § 29.) Ramon contends that the court’s actions in increasing the original $20 fee imposed pursuant to section 1465.8 to $30 when it resentenced him violated the double jeopardy and due process clauses of the California Constitution. Respondent contends that Ramon forfeited this issue on appeal by his failure to object in the trial court. We need not decide whether Ramon forfeited this issue on appeal because even if it were properly before us, we would reject it.
Ramon’s contention that the imposition of a $30 fee on each conviction pursuant to Government Code section 70373 violated the double jeopardy and due process clauses of the California Constitution is moot in light of our conclusion in the previous section that the court erred in imposing these fees.
“When a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. [Citation.]” (People v. Hanson (2000) 23 Cal.4th 355, 357, italics added (Hanson).)
“‘Whether a particular punishment is criminal or civil [for purposes of double jeopardy] is, at least initially, a matter of statutory construction. [Citation.] A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” [Citation.]’ [Citation.] An initial determination that the legislature did not intend to impose a criminal sanction does not end the inquiry, however, since a statutory scheme may be ‘“so punitive either in purpose or effect” [citation] as to “transfor[m] what was clearly intended as a civil remedy into a criminal penalty, ” [citation].’ [Citation.]” (Hanson, supra, 23 Cal.4th at p. 361.).
In Hanson, the Supreme Court held that a restitution fine was punitive in nature and that increasing a restitution fine from $1,000 to $10,000 on remand for resentencing violated the California Constitution’s double jeopardy and due process clauses. (Hanson, supra, 23 Cal.4th at pp. 362, 367.)
However, in People v. Alford (2007) 42 Cal.4th 749, our Supreme Court held that the fee authorized by section 1465.8 does not constitute punishment. (Alford, at p. 757.) Consequently, it follows that the increase of $10 for the security fee imposed on each count pursuant to section 1465.8 did not violate the double jeopardy or due process clauses of the California Constitution.
DISPOSITION
The judgment is modified to strike the $30 fee imposed pursuant to Government Code section 70373 on each of Ramon’s convictions. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.