Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 03WF1241, James P. Marion, Judge. Affirmed as modified.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant was convicted of, inter alia, burglary and committing a lewd act on a child. We find his sentence for burglary must be stayed pursuant to Penal Code section 654, and he was improperly subjected to a $20 courtroom security fee. We will modify the judgment accordingly and affirm in all other respects.
On May 18, 2003, Jonathan W. was 15 years old, and his friend Adam was 13. They played together outside Jonathan’s house until about 3:00 a.m., and then they went to Jonathan’s room and played some video games before eventually calling it a night. Jonathan’s younger brother Ryan was also in the room. He slept on a bunk bed, while Jonathan and Adam slept on the floor.
At about 5:00 a.m., Adam felt someone pull down his pants and penetrate him from behind. He did not wake up immediately, because he was tired and thought he might be dreaming. However, he eventually awoke and saw appellant getting dressed next to him. By that time, Ryan had awoken and gone to get his mother. When she arrived at the room, appellant grabbed his jacket, walked out of the room and left the house.
Semen samples were taken from Adam for DNA testing. Appellant was determined to be the major contributor and Jonathan the minor contributor. Adam admitted having consensual sex with Jonathan in the past; he denied knowing appellant or consenting to sexual activity with him.
Appellant was charged with burglary and committing a lewd act on Adam. Regarding the burglary, the prosecution theorized appellant entered Jonathan’s residence with the intent to commit one or more of the following felonies: (1) lewd act on a child, (2) lewd act on a child by a person who is at least 10 years older than the victim, (3) forcible sexual penetration on a person who is unconscious, and (4) sexual battery while the victim is unlawfully restrained.
The trial court instructed on these offenses and explained to the jury it could convict appellant of burglary if he entered Jonathan’s house with the intent to commit any one of them. The jury did convict appellant of burglary, as well as committing a lewd act on a child. The court imposed a 25-year-to-life term for the lewd act and a concurrent 4-year term for the burglary.
I
Relying on Penal Code section 654, appellant contends that because his objective in entering Jonathan’s house was to sexually abuse a child, he cannot be punished for both burglary and committing a lewd act on Adam. The Attorney General argues section 654 does not apply because the evidence suggests appellant may have intended to commit a variety of sex crimes when he entered Jonathan’s house. In so arguing, the Attorney General emphasizes the fact that four separate sex offenses were at play with respect to the burglary charge. Despite this, we find appellant’s sentence for burglary must be stayed.
All further statutory references are to the Penal Code.
Section 654 provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) This section “applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
The key to applying section 654 is ascertaining the defendant’s objective behind his actions: “If all [of his] offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez, supra, 23 Cal.3d at p. 551.) However, “if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” (Ibid., fn. omitted.)
The Supreme Court’s decision in Perez makes clear that multiple punishment for multiple sex crimes is permissible if the acts giving rise to the crimes are separate and distinct and not merely incidental to each other. (People v. Perez, supra, 23 Cal.3d at pp. 550-554 [upholding separate punishment for oral copulation, sodomy and rape].) However, the Perez court also noted that a defendant cannot be punished for both burglary and his sex crimes if the burglary is “incident to and a means of perpetrating the sex offenses.” (Id. at p. 553, fn. 6.)
People v. Hicks (1965) 63 Cal.2d 764 illustrates the distinction. In that case, the defendant was convicted of burglary and various sex crimes for entering the victim’s house, sodomizing her and committing two acts of oral copulation. The Supreme Court ruled the defendant could be punished for each of the sex crimes, but he could not be punished for the burglary because that offense was but a means to accomplishing the other offenses. (Id. at pp. 765-766.)
It follows that if appellant had been convicted of multiple sex offenses in this case, he could have been punished for each one of those offenses. However, he cannot be punished for both the burglary and the single sex offense for which he was convicted because the burglary was incident to and a means of carrying out the sex crime. (People v. Hicks, supra, 63 Cal.2d at p. 765; People v. Mixon (1990) 225 Cal.App.3d 1471, 1487 [“If defendant had a common intent in committing the burglary and the sex offenses, section 654 bars separate punishment for the burglary”]; People v. McElrath (1985) 175 Cal.App.3d 178, 191 [section 654 barred punishment for burglary where “factual basis for the burglary conviction was an entry with intent to commit sex offense felonies”].) We will modify the judgment accordingly.
II
Appellant also challenges the imposition of a $20 courtroom security fee. The fee was imposed pursuant to section 1465.8, but appellant’s crimes occurred before that section became effective on August 17, 2003. (See Stats. 2003, ch. 159, § 25.) Because appellant’s crimes predated section 1465.8, he argues the trial court violated the prohibitions against ex post facto punishment by subjecting him to the security fee. Although the fee passes constitutional muster, we find it was improperly imposed in this case, due to the statutory prohibition against retroactive application of penal statutes.
The California Supreme Court is currently considering these arguments in another case. (See People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508.)
Designed to “insure and maintain adequate funding for court security,” section 1465.8 mandates a $20 fee “on every conviction for a criminal offense . . . .” (§ 1465.8, subd. (a)(1).) In People v. Wallace (2004) 120 Cal.App.4th 867, the court thoroughly examined the history, purpose and effect of section 1465.8 and concluded it was essentially a fiscal measure, as opposed to a punitive one. Therefore, the court concluded that imposing the $20 security fee for crimes that were committed before section 1465.8 became effective did not violate the constitutional prohibition against
ex post facto punishment. (People v. Wallace, supra, 120 Cal.App.4th at pp. 871-879.) For the reasons cogently explained in Wallace, we agree with the court’s conclusion in that regard.
But that does not end our analysis. Notwithstanding the constitutional prohibition against ex post facto punishment, Penal Code section 3 provides: “No part of [the Penal Code] is retroactive, unless expressly so declared.” The Attorney General argues that because the Legislature enacted section 1465.8 as emergency legislation, and because that section applies to “every conviction for a criminal offense,” the Legislature intended the statute to apply retroactively.
We cannot agree. To overcome section 3’s presumption against retroactivity a statute must either contain an express declaration of retroactivity or there must be a clear and compelling indication that the Legislature intended the statute to apply retroactively. (See People v. Grant (1999) 20 Cal.4th 150, 156-157; People v. Hayes (1989) 49 Cal.3d 1260, 1274.) Merely providing that section 1465.8 applies to all criminal convictions is not the same as an express declaration of retroactivity. This language more plainly addresses the scope of the statute than the question of retroactivity. Had the Legislature meant to apply the statute retroactively, they could easily have said so, and, in light of section 3’s clear request that they do so, we would have expected such a desire to be explicit.
And the fact the Legislature enacted section 1465.8 as an emergency measure does not strike us a “clear and compelling” sign it intended this section to be applied retroactively. While it shows the Legislature wanted section 1465.8 to become effective sooner than it would have in the ordinary course of events, it does not indicate the Legislature wanted the statute to apply in cases where the defendant’s crimes occurred before section 1465.8 was on the books in the first place. Accordingly, we hold the statute cannot be applied to cases, such as the present one, where the defendant’s crimes predated August 17, 2003.
DISPOSITION
Appellant’s four-year sentence for burglary in count 8 is stayed pursuant to section 654, and the court’s order requiring appellant to pay a $20 courtroom security fee is stricken. As so modified, the judgment is affirmed.
I CONCUR: FYBEL, J.
MOORE, J., Concurring and Dissenting.
I concur with the majority except with regard to its analysis regarding Penal Code section 1465.8, subdivision (a)(1). I find the reasoning in People v. Wallace (2004) 120 Cal.App.4th 867, persuasive. While that court did not address Penal Code section 3’s prohibition against retroactive application of penal statutes, it concluded that the security fee is not punitive. It follows that section 3, which addresses only penal sanctions, is inapplicable here. I would affirm without modification.