IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
August 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRUCE RUSSELL GUIVER, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM033458)
The opinion of the court was delivered by: Hoch , J.
P. v. Guiver
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Bruce Russell Guiver entered a no contest plea to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in exchange for dismissal of the remaining count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and prior drug conviction allegation (Health & Saf. Code, § 11370.2, subd. (c)).
Sentenced to state prison, defendant appeals. He contends (1) the $40 court security fee imposed by the trial court must be reduced to $30, which was the amount in effect at the time he was convicted, and (2) the record fails to reflect that the prior drug conviction allegation was dismissed, requiring modification of the minutes. We modify the judgment, dismissing the prior drug conviction allegation, and order the minutes amended accordingly. We reject defendant's contention with respect to the court security fee.
Defendant committed his offense on October 12, 2009, pled no contest on September 29, 2010, and was sentenced to state prison on November 24, 2010.
During the sentencing hearing, the trial court imposed various fines and fees, including a $40 court security fee pursuant to Penal Code section 1465.8.*fn1 Defendant did not object to the amount of the court security fee at the time of the hearing.
October 19, 2010, was the effective date of the amendment to section 1465.8, increasing the court security fee to $40.
Defendant challenges the trial court's imposition of the $40 court security fee pursuant to section 1465.8. He argues the fee was imposed in error and must be reduced because he was convicted prior to the effective date of the amendment which increased the fee from $30 to $40. He claims he was "convicted" on September 29, 2010, the date he entered his plea. The People concede, suggesting that to decide otherwise would violate the constitutional prohibition against ex post facto laws.
We reject defendant's contention and the People's concession.
As a preliminary matter, we note that defendant did not object to the $40 court security fee at the time of sentencing. Here, defendant's claim is not forfeited. Our Supreme Court has "'deemed appellate intervention appropriate in these cases because the errors presented "pure questions of law" [citation], and were "'clear and correctable' independent of any factual issues presented by the record at sentencing." [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not [forfeited].'" (People v. Smith (2001) 24 Cal.4th 849, 852.) And the imposition of a fine or fee in excess of the statutory maximum at the time of conviction, in violation of the ex post facto prohibition, constitutes an unauthorized sentence. (See People v. Zito (1992) 8 Cal.App.4th 736, 740-742; People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.) Thus, while defendant is wrong that the $40 court security fee is an unauthorized sentence because his "conviction" occurred at the time the judgment of conviction was pronounced at sentencing, he can raise the issue without having objected below.
As originally enacted, section 1465.8, subdivision (a)(1), stated, 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, including a traffic offense . . . ." (Stats. 2003, ch. 159, § 25.) The fee increased to $30, effective July 28, 2009 (Stats. 2009-2010, ch. 22, § 29), and then to $40, effective October 19, 2010 (Stats. 2010, ch. 720, § 33).*fn2
People v. Alford (2007) 42 Cal.4th 749 found that section 1465.8 was not an ex post facto law, relying on the following factors: (1) The non-punitive purpose of maintaining "adequate funding for court security"; (2) the statute is part of a broader legislative scheme in which civil fees were also raised; (3) the Legislature labeled the $20 amount due as a "fee," a non-punitive term, rather than a "fine"; (4) the $20 fee is comparatively small; and (5) the amount of the fee does not depend on the type of offense. (Alford, supra, 42 Cal.4th at pp. 755-759.) Alford concluded that "the Legislature intended to impose the court security fee to all convictions after its operative date." (Id. at p. 754.)
The issue here concerns when defendant sustained a "conviction" for purposes of section 1465.8: (1) defendant's no contest plea on September 29, 2010, or (2) his sentence to state prison on November 24, 2010. If the conviction occurred upon entry of his plea, the increased fee of $40 was erroneously imposed because the statute was not yet in effect when defendant was "convicted." If the conviction occurred at sentencing, the $40 fee was properly imposed.
"[T]he term 'conviction' has no fixed definition and has been interpreted by the courts of this state to have various meanings, depending on the context in which the word is used." (People v. Rhoads (1990) 221 Cal.App.3d 56, 60; see also People v. Martinez (1998) 62 Cal.App.4th 1454, 1460.) "As appears in the case law, the terms 'convicted' or 'conviction' do not have a uniform or unambiguous meaning in California. Sometimes they are used in a narrow sense signifying a verdict or guilty plea, some other times they are given a broader scope so as to include both the jury verdict (or guilty plea) and the judgment pronounced thereon." (Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073 (Boyll).) "'Where civil penalties and disabilities are involved . . . a large majority of jurisdictions accept the technical meaning of "conviction" and hold that conviction takes place only after a determination of guilt and a pronouncement of the judgment of the court.'" (Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 418.)
As discussed in Alford, supra, 42 Cal.4th 749, the purpose of section 1465.8 is maintaining adequate funding for court security and the fee is imposed in criminal and traffic matters for use of the court facilities to make them safer. The purpose of the Legislature is expressly set forth in section 1465.8 where it declares that the fee serves "[t]o ensure and maintain adequate funding for court security." (§ 1465.8, subd. (a)(1).) The use of the term "conviction" in section 1465.8 must be interpreted in a manner comporting with this purpose.
The fee is imposed when there is a conviction. (§ 1465.8, subd. (a)(1).) "For the purposes of this section, 'conviction' includes the dismissal of a traffic violation on the condition that the defendant attend a court-ordered traffic violator school, as authorized by Sections 41501 and 42005 of the Vehicle Code." (§ 1465.8, subd. (a)(2).) Other than this reference, section 1465.8 does not define what constitutes a "conviction." The fee, however, is also added to bail for an offense for which no court appearance is required. (§ 1465.8, subd. (c).)
Based on the foregoing, "conviction" should be interpreted to have the greatest application to promote the non-punitive purpose of funding court security. (§ 1465.8, subd. (a)(1).)
Although defendant entered his plea prior to the effective date of the amendment which increased the fee from $30 to $40, he continued to use the court facilities between the time he entered his plea and was sentenced to prison after the effective date. Consequently, he was "convicted" under section 1465.8 upon his sentencing. Our conclusion comports with the holdings of other courts that civil penalties and disabilities flowing from a prior conviction means that a statutory reference to "conviction" may include both the adjudication of guilt and sentencing. (See, e.g., Boyll, supra, 146 Cal.App.3d 1070 at p. 1076 ["conviction" precluding employment as peace officer includes sentencing]; Helena Rubenstein Internat. v. Younger, supra, 71 Cal.App.3d at p. 411 ["conviction" for purpose of exclusion from public office does not occur until rendition of judgment following verdict].) Sometimes "conviction" has even been interpreted to include post-sentencing proceedings. (In re Sonia G. (1984) 158 Cal.App.3d 18, 22-23 [in context of termination of parental rights, parent deemed "convicted" only after exhaustion of his or her appellate rights].) We conclude that defendant was convicted for purposes of section 1465.8 when he was sentenced to prison, which occurred after the effective date of the amendment increasing the fee to $40. Thus, the trial court did not err and imposed the correct amount of $40 for the court security fee.
Defendant entered his negotiated plea in exchange for dismissal of the remaining count and the prior drug conviction allegation. Although the trial court orally dismissed the remaining count, the trial court did not orally dismiss the prior drug conviction allegation. The minutes reflect the dismissal of the remaining count but do not refer to the prior drug conviction allegation. Defendant is entitled to the benefit of his bargain. We order the judgment modified, dismissing the allegation.
The judgment is modified, dismissing the prior drug conviction allegation (Health & Saf. Code, § 11370.2). The trial court is directed to prepare amended minutes to reflect this dismissal. As modified, the judgment is affirmed.*fn3
We concur: RAYE , P. J. BUTZ , J.