IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
January 19, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERTO JOSE PEREZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. 054370)
The opinion of the court was delivered by: Raye , P. J.
P. v. Perez
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 August 2005 defendant Roberto Jose Perez pleaded no contest to possession of marijuana for sale. (Health & Saf. Code, § 11359.) In exchange, a count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) was dismissed and defendant was promised no state prison at the outset. Imposition of sentence was suspended and defendant was placed on probation for three years on conditions including 120 days of incarceration.*fn1
In April 2008 a petition was filed alleging that defendant violated his probation by possessing controlled substances. He admitted the violation and was sentenced to state prison for the upper term of three years. Execution of sentence was suspended and defendant was reinstated on probation, which was extended until January 2011.
In October 2010 a petition was filed alleging that defendant violated his probation by testing positive for methamphetamine. Following a contested hearing in December 2010, the trial court revoked probation, ordered execution of the state prison sentence, and ordered him to pay a $30 criminal conviction assessment (Gov. Code, § 70373), a $30 court security fee (Pen. Code, § 1465.8), a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) plus $140 in penalty assessments, and a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) plus $420 in penalty assessments.
On appeal, defendant contends that (1) because he was convicted in 2005, the criminal conviction assessment must be stricken, the court security fee reduced to $20, and the penalty assessments on the laboratory fee reduced; and (2) the drug program fee is unauthorized and must be stricken because the record demonstrates that he lacks the ability to pay. We shall modify the judgment.
Before considering defendant's contentions, we first consider the Attorney General's argument that the appeal is untimely and must be dismissed. The argument lacks merit.
Judgment was pronounced on December 8, 2010. Defendant in propria persona filed a notice of appeal that stated, in relevant part: "The undersigned hereby appeals from the entire judgment entered in this case on ." The space intended for the date of entry of judgment was left blank. The notice of appeal was dated December 12, 2010, and was filed in the trial court the following day.
Upon receipt of this document, the trial court clerk prepared a "Clerk's Notice of Filing of Notice of Appeal." Supplying the date information that defendant had omitted, the clerk wrote: "NOTICE IS HEREBY GIVEN that Defendant/Appellant, Roberto Perez appeals to the court from the judgment rendered by this court on December 8, 2010." (Italics added.)
Three days later, the trial court clerk filed an "Amended Clerk's Notice of Inoperable Appeal" indicating the earlier-filed notice of appeal was inoperable because no certificate of probable cause was submitted as required by California Rules of Court, rule 8.304.*fn2 , *fn3 On February 1, 2011, defendant filed an application for certificate of probable cause that sought review of two noncertificate issues: calculation of conduct credit and sufficiency of evidence at the contested revocation hearing. The trial court granted the application on February 4, 2011, and on February 8, 2011, defendant in propria persona filed another notice of appeal stating his intent to appeal "from the entire judgment entered in this case on December 12 [sic], 2010." The next day, the trial court clerk issued another "Clerk's Notice of Filing of Notice of Appeal," again identifying the date of judgment as December 8, 2010.
A defendant cannot appeal from a judgment of conviction upon a plea of no contest without first obtaining a certificate of probable cause unless the appeal is based on grounds that arose after entry of the plea and do not affect the validity of the plea, and the notice of appeal includes a statement to that effect. (Rule 8.304(b)(4).) Though clumsily done, it is clear that defendant by his notice of appeal timely filed on December 13, 2010, sought review of two issues that arose after entry of the plea that do not affect the validity of the plea: calculation of conduct credit and sufficiency of the evidence at the contested revocation hearing. His notice of appeal did not include the required statement, but the subsequently filed application for certificate of probable cause, though mislabeled, clearly set forth the two noncertificate issues. We construe the trial court order purporting to grant a certificate of probable cause as granting relief from the failure to file the required statement. (But see People v. Earls (1992) 10 Cal.App.4th 184, 191 [appeal dismissed where defendants and counsel did not attempt to amend notice of appeal or seek other relief].) The Attorney General does not assert that the trial court lacked authority to grant such relief; any such claim is forfeited. (E.g., People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Wharton (1991) 53 Cal.3d 522, 563.)
Barring relief from the failure to file a rule 8.304(b)(4)(B) statement would not advance Penal Code section 1237.5's purpose of "'screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money are spent' on such matters as the preparation of the record on appeal [citation], the appointment of appellate counsel [citation], and, of course, consideration and decision of the appeal itself." (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Where the defendant obtains relief by showing a proper basis for the appeal, any concern with frivolity necessarily is resolved. "'The primary purpose of [section 1237.5], to prevent the taking of frivolous appeals based on the asserted invalidity of pleas of guilty, must not be confused with the entirely separate and settled procedure relating to the determination of asserted errors occurring in subsequent hearings to ascertain the degree of a crime and the penalty to be imposed.' [Citation.]" (People v. Johnson (2009) 47 Cal.4th 668, 677-678, fn. omitted.)
The trial court obviously understood the "certificate of probable cause" as remedying whatever defect had rendered the appeal "inoperative." The timely appeal was duly processed and properly brought before this court. Under these circumstances, we need not consider whether defendant's second pro. per. notice of appeal was timely filed.
Defendant contends the judgment must be modified in various respects to conform to the law in effect when he entered his plea in 2005. The Attorney General concedes in the heading of her second argument that, if this appeal were timely, the disputed fees should be stricken or reduced.*fn4 Having concluded the appeal is timely (part I, ante), we accept the Attorney General's concession.
Criminal Conviction Assessment (Gov. Code, § 70373)
Government Code section 70373 became effective January 1, 2009, and imposes an assessment on every conviction for a criminal offense. Its purpose is to "ensure and maintain adequate funding for court facilities." (§ 70373, subd. (a)(1).) The statute operates upon the event of a defendant's conviction. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1414; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492.) Here, defendant was "convicted" in August 2005 when he pleaded no contest. (People v. Davis (2010) 185 Cal.App.4th 998, 1001.) Because section 70373 applies only to convictions that occurred on or after its effective date, the $30 fee cannot be imposed in this case. We shall strike the criminal conviction assessment.
Court Security Fee (Pen. Code, § 1465.8)
In 2005 Penal Code section 1465.8, subdivision (a)(1) provided: "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, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." (Stats. 2003, ch. 159, § 25, urgency statute eff. Aug. 2, 2003.)
In 2009 the mandated court security fee was increased from $20 to $30. (Stats. 2009-2010, 4th Ex. Sess., ch. 22, § 29, urgency statute eff. July 28, 2009.) The court security fee, like the criminal conviction assessment, operates on the event of a defendant's conviction. (People v. Alford (2007) 42 Cal.4th 749, 754.) Because the statutory increase in the fee did not occur until after defendant's conviction, the fee should have been reduced to the amount that was in effect on the date of conviction, i.e., $20. In any event, $20 was the amount the court assessed when it granted defendant probation. We shall modify the court security fee to $20.
Penalty Assessments on Lab Fee (Gov. Code, §§ 76000.5, 76104.7)*fn5
Defendant challenges two penalty assessments imposed upon the $50 laboratory analysis fee: a $5 DNA identification fund fine pursuant to Government Code section 76104.7, which went into effect on July 12, 2006 (Stats. 2006, ch. 69, §§ 18, 41); and a $10 emergency medical services assessment pursuant to Government Code section 76000.5, subdivision (a)(1), which went into effect on January 1, 2007 (Stats. 2006, ch. 841, § 1).
DNA Penalty Assessment
This court has held that another DNA penalty assessment, pursuant to Government Code section 76104.6, is a punitive ex post facto law with respect to offenses committed prior to its effective date. (People v. Batman (2008) 159 Cal.App.4th 587, 591.)
The Attorney General concedes that, on the issue of punitive intent, Government Code section 76104.7 is "virtually indistinguishable" from Government Code section 76104.6; thus, section 76104.7 is a punitive ex post facto law with respect to offenses committed prior to its effective date. We accept the Attorney General's concession and shall strike the $5 penalty assessment.
Emergency Medical Services Penalty Assessment
The Attorney General further concedes that Government Code section 76000.5 is indistinguishable from Government Code sections 76104.6 and 76104.7 "in all aspects but one." That aspect is section 76000.5's purpose: to fund emergency medical services, not law enforcement. The Attorney General notes that "the Legislature's intent that the assessment be punitive is clear despite the single difference, particularly in light of the Legislature's express use of the term 'penalty.'" We accept the Attorney General's concession and shall strike the $10 penalty assessment.
Defendant contends the $150 drug program fee and $420 in penalty assessments are unauthorized and must be stricken because the record demonstrates that he lacks the ability to pay. He claims he is entitled to mount a challenge to the sufficiency of evidence of ability to pay for the first time on appeal. (Citing People v. Viray (2005) 134 Cal.App.4th 1186, 1217 (Viray); People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400 (Pacheco).)
However, this court has held on more than one occasion that in order to preserve a challenge to a fee or fine, a defendant must object in the trial court. (People v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine (Pen. Code, § 1202.5, subd. (a))]; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [jail booking fee (Gov. Code, § 29550.2)].) Even sufficiency of the evidence claims with respect to fees and fines may be subject to forfeiture. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1467, 1468-1469 [restitution fine (Gov. Code, former § 13967, subd. (a), repealed by Stats. 2003, ch. 230, § 2)].)*fn6
Moreover, Viray is distinguishable on its facts because it involved "objections to an order for reimbursement of counsel fees." (Viray, supra, 134 Cal.App.4th at p. 1214.) Viray explained that, "unless the defendant has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsel's failure to object to an order reimbursing his own fees." (Ibid.)
Pacheco relied on Viray without considering its unique procedural context involving counsel fees. (Pacheco, supra, 187 Cal.App.4th at p. 1397.) Pacheco also relied on People v. Lopez (2005) 129 Cal.App.4th 1508, which in turn relied on cases that did not involve challenges to fines or fees. (Id. at pp. 1536-1537.) Nothing in Viray or Lopez causes us to reconsider our conclusions in the foregoing cases.
In sum, defendant has forfeited his claim that the drug program fee and penalty assessments must be reversed for insufficient evidence of his ability to pay.
The judgment is modified by striking the $30 criminal conviction assessment, the $5 DNA identification fund penalty assessment, and the $10 emergency medical services penalty assessment; and by reducing the court security fee to $20. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur: BUTZ , J. MAURO , J.