IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
September 13, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL ALLEN SMITH, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F3658)
The opinion of the court was delivered by: Murray , J.
P. v. Smith
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In 2010 a jury found defendant Michael Allen Smith guilty of orally copulating his minor stepson in 2003. Defendant was sentenced to prison. (Pen. Code, § 288a, subd. (b)(2).)*fn1
Defendant contends on appeal that the trial court improperly imposed a $300, rather than $200, section 290.3, subdivision (a) fine; improperly imposed several penalty assessments on that fine; and improperly imposed a $30, rather than a $20 court security fee. The People concede the errors. We remand the matter to the trial court to modify the judgment consistent with this opinion. In all other respects, we affirm the judgment.
The trial court improperly imposed a section 290.3, subdivision (a) fine in the amount of $300. At the time defendant's sex offense occurred in 2003, section 290.3, subdivision (a) stated: "'Every person who is convicted of any offense specified in subdivision (a) of Section 290 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 or a fine of three hundred dollars ($300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.' (Stats. 1995, ch. 91, § 121, p. 346.)" People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.)*fn3
The prohibition against ex post facto laws applies to section 290.3 fines. (People v. Valenzuela, supra, 172 Cal.App.4th at p. 1248; see also People v. Saelee (1995) 35 Cal.App.4th 27, 30 [under ex post facto principles, the assessable amount of a fine is calculated as of the date of the offense].)
Accordingly, the section 290.3 fine in the amount of $300 imposed in this case constituted an unauthorized sentence, which may be corrected at any time even if there was no objection in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 886; People v. Smith (2001) 24 Cal.4th 849, 854 [an unauthorized sentence may be corrected even when raised for the first time on appeal].) We therefore modify the section 290.3 fine to $200, the amount statutorily authorized when defendant violated section 288a.
Defendant also contends the trial court erred in imposing several of the penalty assessments on the section 290.3 fine because they, too, violate ex post facto principles.
We agree in part. Imposition of a penalty assessment violates the constitutional prohibition of ex post facto laws if: (1) the defendant's criminal act preceded its enactment; and (2) the assessment is in fact a penalty. (Trop v. Dulles (1958) 356 U.S. 86, 95-96 [2 L.Ed.2d 630] [an ex post facto prohibition applies "only to statutes imposing penalties," i.e., punishment].) "If the intention of the legislature [or electorate] was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and non-punitive, we must further examine whether the statutory scheme is '"so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil."' [Citations.]" (Smith v. Doe (2003) 538 U.S. 84, 92 [155 L.Ed.2d 164].)
Here, the DNA penalty assessment under Government Code section 76104.6 became effective in 2004, the DNA penalty assessment under Government Code section 76104.7 became effective in 2006, and the Government Code section 76000.5 emergency medical services penalty assessment became effective in 2007. All are penalties, and all postdate defendant's criminal conduct. Defendant contends, and the People concede, that the penalty assessments imposed pursuant to these statutes must be stricken. We agree. (See People v. High (2004) 119 Cal.App.4th 1192, 1198-1199; People v. Batman (2008) 159 Cal.App.4th 587, 590-591.)
However, defendant also contends, mistakenly, that the construction penalty created by Government Code section 70372 became effective in 2007. It did not; Government Code section 70372 became effective on January 1, 2003, and thus predated defendant's crime. (Stats. 2002, ch. 1082, § 4, pp. 6994-6995.) It may be imposed without violating ex post facto principles.
Finally, defendant contends that the court security fee imposed by the court at sentencing must be reduced from $40 to $30 because, at the time of defendant's conviction, section 1465.8 allowed the court to impose the lesser amount. The People concede the issue and we agree. (People v. Alford (2007) 42 Cal.4th 749, 754.)
We shall remand this matter so that the trial court may reduce, recalculate, and strike the fines and fees in accordance with this opinion and order an amended abstract to reflect these changes.
The judgment is modified to reduce the fine imposed pursuant to Penal Code section 290.3 to $200. The trial court shall recalculate the corresponding penalties and surcharges. The trial court shall also strike the penalty assessments imposed pursuant to Government Code sections 76000.5, 76104.6, and 76104.7, and reduce the fee imposed pursuant to Penal Code section 1465.8 to $30. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , Acting P. J. HULL , J.