Opinion
F042432.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. VINCENT CUELLAR REYES, Defendant and Appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
On October 11, 2002, Vincent Cuellar Reyes was charged by information with three counts of willfully committing lewd or lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), and one count of incest (§ 285). The charges stemmed from three incidents, all of which were alleged to have occurred in January of 2001. The victim in each case was Reyess 13-year-old daughter. It was also alleged as to all four counts that Reyes had served a prior prison term (§ 667.5, subd. (a)) as the result of a 1998 conviction for domestic abuse (§ 273.5).
Unless noted otherwise, all further statutory citations will refer to the Penal Code.
On December 5, Reyes pleaded no contest to one count of lewd or lascivious conduct, and admitted the prior prison term allegation, pursuant to a plea agreement by which the three remaining charges were dismissed.
On February 5, 2003, the court sentenced Reyes to the aggravated term of eight years for the offense, and imposed a one-year prior prison term enhancement, for a total of nine years in prison. It awarded him 279 days credit for time served, and ordered him to pay, among other things, a $200 fine under section 290.3, which, when penalties and assessments were added, totalled $ 630.
On appeal, Reyes contends the $630 should be reduced to $540 because the two charges making up the $90 difference were imposed pursuant to statutes that had not yet taken effect on the date of the underlying offense. He also contends he is entitled to one additional day of presentence custody credit. The People dispute Reyes claim regarding one of the two disputed charges included in the fine. They concede his other two claims are correct.
DISCUSSION
At sentencing, the trial court directed Reyes simply to pay a "$630 fine under 290.3 of the Penal Code which includes penalties and assessments." The court did not explain, nor was it asked to explain, how it arrived at this figure.
Section 290.3, subdivision (a) provides that a person convicted of committing any one of certain listed sex offenses, including a violation of section 288, "shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of two hundred dollars ($200) upon the first conviction ...."
The $200 fine, in turn, is subject to a state penalty assessment under section 1464, subdivision (a), and a county penalty assessment under Government Code section 76000, subdivision (a), which are equal to $10 and $7, respectively, for every $10 (or fraction) of the underlying fine. The imposition of these penalty assessments is mandatory. (People v. Chardon (1999) 77 Cal.App.4th 205, 216-217.) Thus, the assessments added $200 and $140 to the $200 fine, bringing the total to $540. This is the amount Reyes claims he should have been required to pay.
However, the court also added two additional assessments. The first was a $40 "state surcharge" pursuant to section 1465.7, which states in subdivision (a): "A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464." This increased the total to $580, which is the amount the probation department recommended the court order Reyes to pay. But the number "$580" was crossed out on the probation report and replaced with a handwritten "$630," made evidently by the trial judge to allow for a second additional assessment.
While this appeal was pending, Reyess appellate counsel wrote to the trial judge requesting he correct both the presentence custody credits and the $630 fine. (See People v. Robinson (1994) 25 Cal.App.4th 1256 [appellant should first attempt to correct clerical sentencing errors in the trial court].) The judge wrote back to say he had reviewed these two items and found them both to be correct. He explained the $630 as follows:
"The $630.00 is based upon the base fine of $200.00, the County assessment (GC §76000) of $140.00, the State assessment ( PC §1464) of $200.00, the Facilities assessment (GC §§ 70372(a) and 70375(b) of $50.00, and the surcharge ( PC §1465.76 [sic]) of $40.00."
As requested, we take judicial notice of the judges letter.
The second assessment was a $50 "state court construction penalty" mandated by section 70372 of the Government Code, which provides in subdivision (a):
"Except as otherwise provided in this article, there shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($ 10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses ...."
We note that the amount of the assessment under this formula would have been $100, rather than $50. However, the trial court, in its letter, also referred to Government Code section 70375, subdivision (b), which provides:
"In each county, the amount authorized by Section 70372 shall be reduced by the following: [¶] (1) The amount collected for deposit into the local Courthouse Construction Fund established pursuant to Section 76100. [¶] (2) The amount collected for transmission to the state for inclusion in the Transitional State Court Facilities Construction Fund established pursuant to Section 70401 to the extent it is funded by money from the local Courthouse Construction Fund."
Thus, although the letter does not specify, it appears the $ 100 assessment was cut in half to account for a contribution to one of these construction funds.
This brought the $200 fine imposed under section 290.3, plus the state and county penalty assessments, the state surcharge, and the construction penalty, to $630.
Section 1465.7 authorizing the state surcharge was enacted effective September 30. 2002. (Stats. 2002, ch. 1124, § 46.) Government Code section 70372 authorizing the construction penalty was enacted effective January 1, 2003. (See Gov. Code, § 70375, subd. (a).) Thus, both statutes took effect after Reyes committed the subject offense in January of 2001 (but before he was sentenced in February of 2003). Reyes contends their application in this case therefore violated the state and federal constitutional prohibitions against ex post facto legislation.
Reyes makes no comparable objection to the $ 100 fine imposed under section 288, subdivision (e), which was increased to $315 by the same process used with respect to the section 290.3 fine.
The state and federal ex post facto prohibitions are coextensive. (People v. Frazer (1999) 21 Cal.4th 737, 754, fn. 15.) They both apply, inter alia, to a statute that "`makes more burdensome the punishment for a crime, after its commission." (Id . at p. 755; People v. McVickers (1992) 4 Cal.4th 81, 84.) It is not just an additional burden that offends the ex post facto clause, but a more burdensome punishment. (McVicker s at p. 84.)
"The determination of whether a statute is penal in nature is based in part upon the purpose of the statute. [Citation.] ` If the statute imposes a disability for the purposes of punishment—that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. [Citation.]
"In assessing whether a statute imposes punishment, we inquire ( 1) whether the Legislature intended the sanction to be punitive and, if not, (2) whether the sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the Legislatures intent. [Citations.]" (People v. Rivera (1998) 65 Cal.App.4th 705, 709, fn. omitted (Rivera).)
Reyes maintains the state surcharge and the construction penalty are both a form of punishment subject to the ex post facto clause. The People concede the point in regard to the state surcharge, but argue the construction penalty has mainly a nonpenal purpose.
State court construction penalties collected pursuant to Government Code section 70372 are to be deposited in a "State Court Facilities Construction Fund," whose purpose is the "[i]mprovement of ... court facilities." (Gov. Code, § 70371.) "[T]he construction funds generated by this article are intended to further reasonable access to the courts and judicial process throughout the state for all parties." (Ibid.)
Notwithstanding the funds stated purpose, Reyes points out that the statute refers to the assessment as a "state court construction penalty" that shall be levied "in addition to any other state or local penalty." (Gov. Code, § 70372, subd. (a), italics added.) He also seeks to equate the construction penalty to the restitution orders found to be a form of punishment subject to the ex post facto clause in People v. Zito (1992) 8 Cal.App.4th 736 (Zito) and People v. Saelee (1995) 35 Cal.App.4th 27 (Saelee ). We do not find the comparison apposite.
Zito concerned former Government Code section 13967, which, when most of the underlying crimes were committed, limited the total of direct restitution and a restitution fine to $10,000. The statute was later amended to remove this limit and to permit the trial court to order direct restitution, in lieu of all or some of the restitution fine, in the amount of the victims actual losses. The defendant in Zito was ordered pursuant to the amended statute to pay $300,000 in direct restitution and a $10,000 restitution fine. The appellate court held this was an ex post facto violation not because restitution is punitive by its nature necessarily, but because it was punitive in its effect in that particular situation. "`[A]lthough the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment .... [Citation.]" (Zito, supra, 8 Cal.App.4th at p. 741, quoting People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker).)
Saelee, a decision by this court, also concerned former Government Code section 13967. The statute had been amended after the underlying offense in two respects: to increase the minimum restitution fine from $100 to $200, and to make the amount of the fine subject to the defendants ability to pay. The defendant was ordered to pay a fine in the amount of $10,000. We held, in reliance on Zito and Walker, that restitution fines are a form of punishment for purposes of the ex post facto clause. We held that the clause did not bar retroactive application of the "ability to pay" provision because it benefited rather than burdened the defendant. Since no ability to pay determination had been made, the fine had to be reduced to the statutory minimum. We held that the provision raising the minimum fine from $100 to $200, because it was more burdensome, could not be enforced. We therefore reduced the fine from $10,000 to $100. (Saelee, supra, 35 Cal.App.4th 30-31.)
Zito and Saelee can be understood to say that restitution, if the amount is relatively large, may be punitive in its effect if not in its purpose and so subject to the ex post facto clause. That principle has no application in this case because the construction penalty is only $50. That brings us back to the purpose of the penalty.
In Rivera, supra, 65 Cal.App.4th 705, the defendant challenged an order directing her to pay $168 in "criminal justice administration fees" under section 29550.2 of the Government Code, which was not enacted until well after her arrest. She argued on the strength of Zito and Saelee that the fees, like restitution fines, are punitive for purposes of the prohibition against ex post facto laws. The Court of Appeal, however, distinguished the fees insofar as their purpose, by the statutes terms, was to reimburse county jails for the actual costs of arresting and booking prisoners. "Criminal justice administration fees are imposed not as retribution for what the convicted criminal has done to a victim and/or society, but for his or her use of jail services as a result of criminal behavior." (Id. at p. 711.) The court therefore held that imposition of the fees had not violated the ex post facto clause. (Ibid.)
In reaching this conclusion, the Rivera court accepted the defendants premise that restitution fines are essentially punitive in nature. It found support for this proposition, as we have said, in Zito and Saelee. It noted further that, by the terms of the statute (former Gov. Code, § 13967), restitution may be imposed "`in addition to any other penalty." And it quoted from People v. Cookson (1991) 54 Cal.3d 1091, 1097 (Cookson) to the effect that restitution has a punitive as well as a restorative purpose. (Rivera , supra, 65 Cal.App.4th at p. 710.)
Reyes thus cites Rivera in support of his claim the construction penalty is just that — a penalty — because Government Code section 70372 shares the "in addition to any other ... penalty" language of the restitution statute. We do not necessarily agree with Riveras interpretation of Zito and Saelee. Moreover, the quote from Cookson arose in a different context than was involved in Rivera. The issue in Cookson was whether it was within the trial courts power to extend the defendants probation because, despite his having made all required restitution payments during the original term of probation, an unpaid balance remained. The court upheld the extension because, inasmuch as restitution includes a punitive element, "[a]llowing modification of probation to facilitate the recovery of restitution ... enables the court to fashion a remedy that best serves the goals of probation." (Cookson , supra, 54 Cal.3d at p. 1097.) We do not understand this to mean that the purpose of restitution is primarily punitive within the present context.
And, in any event, we do not believe the "penalty" language in Government Code section 70372 is dispositive of the question before us. The construction penalty, much like the administrative fees in Rivera, is more in the nature of a user fee than a penalty for criminal behavior. It reflects the notion that those who utilize the states court facilities, whether voluntarily or involuntarily, should contribute to the cost of making them more accessible. We therefore conclude that the imposition of the $50 construction penalty in this case did not violate the prohibition against ex post facto laws.
DISPOSITION
The judgment is modified to reduce the "section 290.3" fine from $630 to $590 by eliminating the $40 "state surcharge" imposed pursuant to section 1465.7, and to increase presentence custody credits from 279 days to 280 days. The judgment as so modified is affirmed.
The trial court is directed to prepare an amended abstract of judgment reflecting these modifications, and to send a copy of it to the Department of Corrections.