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People v. Phillips

July 2, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JASON TROY PHILLIPS, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. (Super. Ct. No. BF123597A).

The opinion of the court was delivered by: Dawson, J.

CERTIFIED FOR PUBLICATION

OPINION

In June of 2008, Jason Troy Phillips (appellant) pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) under a deferred entry of judgment, pursuant to Penal Code sections 1000 and 859a. In May of 2009, the court found appellant failed to comply with the deferred entry of judgment program and excluded him pursuant to Penal Code section 1000.3. It found appellant guilty based on his previously entered plea under Penal Code section 859a. The court sentenced appellant to a two-year term*fn1 and imposed various fees and fines, including a $30 assessment under Government Code section 70373 (section 70373).

Appellant contends only that the assessment imposed pursuant to section 70373 must be stricken. Though members of this panel have previously agreed with this position, upon consideration of the opinion of the Third Appellate District in People v. Castillo (2010) 182 Cal.App.4th 1410, we have concluded that it has the better view.

SECTION 70373

At sentencing, appellant was ordered to pay a $30 assessment pursuant to section 70373, subdivision (a)(1) (the assessment). Appellant argues the assessment is unauthorized and must be stricken because the crimes occurred before section 70373's effective date. We, however, agree with the Third District Court of Appeal that the date of conviction, not the date of the crime, controls application of the statute. (People v. Castillo, supra, 182 Cal.App.4th 1410.)

Subdivision (a)(1) of section 70373 provides in relevant part:

"To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense .... The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony ...." (Added by Stats. 2008, ch. 311, § 6.5, eff. Jan. 1, 2009, italics added.)

Appellant committed his crime in 2008 and was sentenced in 2009. The issue is whether the statute applies where the crime was committed before the statute became effective.

In People v. Alford (2007) 42 Cal.4th 749 (Alford), our Supreme Court addressed Penal Code section 1465.8, the language of which closely resembles section 70373. Former Penal Code section 1465.8,*fn2 provided, in relevant part,

"To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense ...." (Italics added.)

Penal Code section 1465.8 became operative on August 17, 2003, shortly after the defendant committed a robbery but before he was convicted. (Alford, supra, at pp. 752-753.) The court determined that the statute did not violate ex post facto prohibitions because it served a non-punitive purpose. The Alford court also determined that the Legislature intended Penal Code section 1465.8 to apply where the conviction occurred on or after the statute's effective date, regardless of when the crime occurred. (Alford, supra, at pp. 754-756.) In doing so, the court relied on the fact that Penal Code section 1465.8 was created by an urgency statute enacted as part of an emergency budgetary measure for the purpose of funding court security. The court examined relevant budgetary figures to determine the Legislature's intent. (Alford, supra, at pp. 754-755.)

Citing Alford, appellant acknowledges that, because section 70373 serves a non-punitive purpose, applying it to crimes committed before its effective date does not violate prohibitions on ex post facto laws. But, appellant argues, unlike Penal Code section 1465.8, there is nothing in the statute or in the legislative history of section 70373 that indicates an intent that it apply where the criminal conduct occurred before the legislation became operative. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-1194 ...


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