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People v. Cortez

November 10, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
OCTAVIO REYES CORTEZ, DEFENDANT AND APPELLANT.



Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed. (Super. Ct. No. 06CF0648).

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

CERTIFIED FOR PUBLICATION

OPINION

Octavio Reyes Cortez pleaded guilty to six counts of committing lewd acts upon a child (Pen. Code, § 288, subd. (a)), but appeals from the portion of his sentence which imposes a $30 "court facilities" fee on each of his six convictions. The fees were imposed pursuant to Government Code section 70373 (section 70373), and Cortez contends they are inappropriate in this case because: (1) the statute authorizes them only for criminal convictions stemming from violations of the Vehicle Code or local ordinances authorized by the Vehicle Code, and (2) because section 70373 was enacted after the dates of his crimes. We find the contentions unpersuasive.

By its terms, section 70373 applies to all "criminal" offenses, and that term is then defined as "including a traffic offense... involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." (Italics added.) While we agree with Cortez's contention the statute could be worded more clearly, that is not the test for denying enforcement. Cortez's assertion that the statute is actually intended to apply to only two separate categories of offenses which violate the Vehicle Code - "criminal offenses" and "traffic offenses"--is both unsupported by any authority suggesting the Legislature has otherwise recognized those distinct categories within the Vehicle Code, and inconsistent with its characterization of "traffic offenses" as being included within "criminal offenses."

Cortez's contention that application of section 70373 to his crimes violates ex post facto principles is likewise unavailing. Liability for the facilities fees attaches upon the conviction, not the commission of the crime, and Cortez was convicted after the statute's effective date. And in any event, the fee is neither characterized, nor does it operate, as a penalty. Consequently, it is not subject to an ex post facto claim.

The judgment is affirmed.

FACTS

On September 29, 2009, Cortez pleaded guilty to six counts of committing lewd acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a).) Specifically, he admitted that on February 8, 2006, he committed such a lewd act on a child identified as Jane Doe #1, and that between March 1, 1995 and March 31, 1995, he committed five such lewd acts on a child identified as Jane Doe #2.

Cortez was sentenced to state prison for a stipulated term of 18 years, and in addition to restitution fines and other fees, he was ordered to pay an assessment of $30 per conviction (a total of $180) pursuant to section 70373. He appeals only those fees.

I.

Section 70373 provides in part: "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 and in the amount of thirty-five dollars ($35) for each infraction."

According to Cortez, the phrase "involving a violation of a section of the Vehicle Code (etc.)" relates back to the term "criminal offense," such that only criminal offenses which violate the Vehicle Code, and traffic offenses (other than parking offenses) which violate the Vehicle Code, trigger imposition of the fee. Thus, as Cortez was convicted of sexual offenses unrelated to the Vehicle Code, he argues he should be exempt from the fees.

Although we find the argument ultimately unpersuasive, we start by acknowledging, as Cortez contends, the statute is not optimally drafted. Unfortunately, the relevant language in its first sentence has a certain ping-pong rhythm that makes Cortez's interpretation feel more persuasive than it actually is. That ping-pong effect is the result of having the exception for "parking offenses" inserted into the middle of the phrase "traffic offenses... in violation of the Vehicle Code," and thus we have no quibble with Cortez's suggestion that the statute would be improved if the Legislature had moved that exception for "parking offenses" to the end of the sentence. Had it done so, the relevant language would state the fee applies to "every conviction for a criminal offense, including a traffic offense involving a violation of a ...


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