Lead Opinion
Opinion
I. INTRODUCTION
Defendant, Jamaal Rayshawe Wallace, appeals from his conviction of second degree robbery (Pen. Code,
We appointed counsel to represent defendant on appeal. Counsel has filed a brief in which no issues were raised. (People v. Wende (1979)
A. The $20 Court Security Fee
Defendant contends the trial court erroneously imposed a $20 court security fee. Defendant argues that since he committed his offense prior to the effective date of section 1465.8, subdivision (a)(1), the imposition of the $20 court security fee violates the ex post fаcto provisions of the federal and state Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) We disagree.
Section 1465.8 states in its entirety: “(a)(1) 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. [][] (2) For the purposеs 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. This security fee shall be deposited in accordance with subdivision (d), and may not be included with the fee calculated and distributed pursuant to Section 42007 of the Vehicle Code. [¶] (b) This fee shall be in addition to the state penalty assessed pursuant to Section 1464 and may not be included in the base fine to calculate the state penalty assessment as specified in subdivision (a) of Section 1464. [ft] (c) When bail is deposited for an offense to which this section applies, and for which a court appearance is not necessary, the person making the deposit shall also deposit a sufficient amount to include the fee prescribed by this section, [ft] (d) Notwithstanding any other provision of law, the fees collected pursuant to subdivision (a) shall all be deposited in a special account in the county treasury and transmitted therefrom monthly to the Controller for deposit in the Trial Court Trust Fund, [ft] (e) The Judicial Council shall provide for the administration of this section.” Section 1465.8 was enacted as part of Assembly Bill No. 1759 (2003-2004 Reg. Sess.), hereafter Assembly Bill No. 1759. (Stats. 2003, ch. 159, § 25.) The enactment of section 1465.8 was conditional upon specified expenditure levels for trial court funding appropriations being approved as part of the fiscal year 2003-2004 budget. (Stats. 2003, ch. 159, § 27.
In addition to the foregoing, the codified provisions of Assembly Bill No. 1759 made extensive changes to the allowable fees that may be charged litigants and created a mechanism for managing court security issues. Among the statutory changes in Assembly Bill No. 1759 were: increases in fees under specified circumstances in small claims actions (Code Civ. Proc., § 116.230; Stats. 2003, ch. 159, §§ 1-2); imposing new costs for issuance of documents relative to the enforcement of small claims judgments (Code Civ. Proc., § 116.820; Stats. 2003, ch. 159, § 3); requiring the reimbursement of the Attorney General for invеstigation and other costs in enumerated enforcement actions (Code Civ. Proc., § 1021.8; Stats. 2003, ch. 159, § 4); establishment of the Public Rights Law Enforcement Special Fund to be administered by the Department of Justice (Gov. Code, § 12530; Stats. 2003, ch. 159, § 5); granting the Attorney General the right to recover attorney fees in charitable trust actions (Gov. Code, § 12598, subds. (b)-(c); Stats. 2003, ch. 159, § 6); clarification of the right of the Attorney General to recover attorney fees in Fair Employment and Housing Act enforcement actions (Gov. Code, § 12989.3, subd. (g); Stats. 2003, ch. 159, § 7); increased filing fees in civil aсtions (Gov. Code, § 26826.4; Stats. 2003, ch. 159, § 8); increased fees in probate actions (Gov. Code, § 26827; Stats. 2003, ch. 159, §§ 9-10); increasing the filing fee for specified motions and requiring the deposit of enumerated funds in the Trial Court Trust Fund (Gov. Code, § 26830; Stats. 2003, ch. 159, §§ 11-12); requiring specified fees collected in civil litigation to be transferred to the Trial Court Trust Fund on a monthly basis and providing for its administration (Gov. Code, § 68085.5; Stats. 2003, ch. 159, § 13); assessing fees for court reporter usage (Gov. Code, § 68086; Stats. 2003, ch. 159, § 14); increasing the fee for filing a notice of appeal (Gov. Code, § 68926.1; Stats. 2003, ch. 159, § 16); increasing the fee for filing a review petition in the California Supreme Court (Gov. Code, § 68927; Stats. 2003, ch. 159, § 17); establishing the Appellate Court Trust Fund (Gov. Code, § 68933; Stats. 2003, ch. 159, § 18); imposing a $20 surcharge for “court security” purposes to filing fees in civil actions (Gov. Code, § 69926.5; Stats. 2003, ch. 159, § 19); providing a mechanism for managing court security (Gov. Code, § 69927; Stats. 2003, ch. 159, § 20); and increasing the filing fees in limited civil cases. (Gov. Code, §§ 72055-72056; Stats. 2003, ch. 159, §§ 21-24.) Additionally, uncodified provisions of Assembly Bill No. 1759 allocated reimbursements in the event local entities incurred costs and limited the operability of the provisions relating to appellate fees and the Appellate Court Trust Fund. (Stats. 2003, ch. 159, §§ 26-28.)
Committee reports prepared as part of the legislative process that resulted in the adoption of Assembly Bill No. 1759 indicate the Legislature viewed the set of new laws that were ultimately enacted, including section 1465.8,
California Constitution, article IV, section 12, subdivision (c) mandates the budgеt be sent to the Governor on June 15. On June 25, 2003, Assembly Bill No. 1759 was amended on the Senate floor to include for the first time 27 sections. (Sen. Amend, to Assem. Bill No. 1759, June 25, 2003, §§ 1-27.) The June 25, 2003, Senate amendment provided for section 1465.8 in its current format. (Sen. Amend, to Assem. Bill No. 1759, supra, at § 25.) The Legislative Counsel’s Digest made no reference to the purpose of Assembly Bill No. 1759 other than to recount the statutory provisions affected by its adoption.
A July 27, 2003, Senate report again summarized Assembly Bill No. 1759 without specific reference to section 1465.8. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1759 as amended July 27, 2003, pp. 1-2.) The report described the bill as, “Judiciary Omnibus 2003-04 Budget Trailer Bill.” (Id. at p. 1.) When the legislation was returned to the Assembly for final approval, a report prepared for the Assembly members stated: “AS PASSED BY THE ASSEMBLY this bill expressed the intent of the Legislature to enact statutory changes to the Budget Act of 2003. [1] FISCAL EFFECT: Makes various statutory changes to implement certain portions of the 2003 Budget Bill.” (Assem. Floor Analysis, Cone, in Sen. Amends, to Assem. Bill No. 1759 as amended July 27, 2003, p. 2, underscoring omitted.) The report described the section 1465.8, subdivision (a)(1) $20 court security fee as a “surсharge.” (Assem. Floor Analysis Assem. Bill No. 1759, supra, at p. 1.)
In assessing whether the court security fee is punitive and therefore subject to the United States and California Constitutions’ ex post facto clauses, the relevant test is as follows: “The framework for our inquiry, however, is well established. We must ‘ascertain whether the legislature meant the statute to establish “civil” proceedings.’ Kansas v. Hendricks,
The first inquiry then is whether the Legislature in imposing the $20 court security fee intended to impose a civil rather than punitive regime. The United States Supreme Court described this initial ex post facto inquiry as follows: “The courts ‘must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.’ Hudson, supra, at 99 (internal quotation marks omitted).” (Smith v. Doe, supra,
The Legislature never indicated it considered the $20 court security fee, which was imposed in both criminal and specified civil cases, as punishment. The stated reason for enacting the $20 court security fee appears in section 1465.8, subdivision (a)(1), “To ensure and maintain adequate funding for court security . . . .” The maintenance of “adequate funding for court security” purposes is unambiguously a nonpunitive objective. Assembly Bill No. 1759 was one of 24 trailer bills which were part of a “mechanism to implement critical provisions” of the fiscal year 2003-2004 state budget. (Assem. 3d reading analysis of Assem. Bill No. 1759, as introduced Mar. 11, 2003, p. 1.) The only expressed rationale for making Assembly Bill No. 1759 an urgency statute was a budgetary reason: “In order to provide for changes to implement the Budget Act of 2003, it is necessary that this act take effect immediately.” (Stats. 2003, ch. 159, § 29.) Moreover, the $20 court security fee was imposed not merely upon persons convicted of crime. Government Code section 69926.5, subdivision (a), which was adopted pursuant to section 19 of Assembly Bill No. 1759, required a $20 court security surcharge also be imposed on the first paper filed on behalf of a plaintiff or a defendant in any limited and unlimited civil action or special proceeding and in probate matters. (Stats. 2003, ch. 159, § 19; Gov. Code, § 26820.4, 26826, 26827, 72055, 72056.) Moreover, section 1465.8, subdivision (a)(2) requires that the $20 surcharge be imposed when a traffic violation charge is dismissed because the alleged violator attends traffic school. Further, section 1465.8,
The second inquiry then is whether section 1465.8, subdivision (a)(1) is “ ‘ “so punitive either in purpose of effect” ’ ” as to negate the Legislature’s intention that the $20 fee be a civil disability. (Smith v. Doe, supra
As to the first Mendoza-Martinez factor—whether a practice has historically been considered a punishment—in one sense defendant’s argument has some substance. His conviction has resulted in the imposition of the $20 fee. Whether it is referred to as a fee, fine, penalty, charge, cost, expense, or surcharge, defendant’s obligation to pay the $20 arose only from his conviction. Fines are generally considered to be punishment. But there are several countervailing considerations. A court security fee can logically be viewed as a nonpunitive fee assessed for the use of court facilities which is designed to make them safer. This is particularly true when the same fee is imposed in limited and unlimited civil and probate cases as well. (Stats. 2003, ch. 159, § 19; Gov. Code, § 69926.5, subd. (a).) Moreover, in traffic cases, the $20 fee is imposed even when the alleged violator’s case is dismissed because he or she attends traffic school. (Stats. 2003, ch. 159, § 25; § 1465.8, subd. (c).) Also, as noted previously, the enactment of section 1465.8, subdivision (a)(1) was dependent on the adoption of specified trial court funding levels. (Stats. 2003, ch. 159, § 27.) In this respect, section 1465.8, subdivision (a)(1) is unlike any other form of punishment—its effectiveness was entirely dependent on funding of other budget line items.
The second Mendoza-Martinez factor—whether section 1465.8, subdivision (a)(1) imposes a traditional punishment—militates strongly against defendant. This factor was described by the Supreme Court thusly, “Here, we inquire how the effects of the [challenged statute] are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” (Smith v. Doe, supra, 538 U.S. at pp. 99-100; Hatton v. Bonner, supra,
As to the fourth Mendoza-Martinez factor—whether the challenged provision has a rational relation to a nonpunitive purpose—the $20 court security fee obviously does. The fifth Mendoza-Martinez factor—whether the $20 court security fee is excessive with respect to its purpose of helping fund safe courthouses—militates quite strongly in favor of the position of the Attorney General. The minimal fee is not excessive and furthers the purpose of section 1465.8, subdivision (a)(1) which, as part of Assembly Bill No. 1759, has as its purpose insuring appropriate funding levels for court operations and providing a more rational process for planning court security.
These sometimes countervailing considerations do not permit us to find the imposition of the $20 court security fee was an ex post facto violation. As noted previously, we cannot override the legislative treatment of the $20 section 1465.8, subdivision (a)(1) fee as a nonpunitive provision unless there is “ ‘ “the clearest proof’ ’ ” that section 1465.8 is “ ‘ “so punitive either in purpose or effect as to negate” ’ ” the Legislature’s intentiоn to treat it as a civil matter. (Smith v. Doe, supra,
Our views in this regard are consistent with other decisions. Appellate courts have consistently held that a minimal fee, imposed for a nonpunitive purpose and without punitive effect, is not subject to the limitаtions of the ex post facto clause. (People v. Rivera (1998)
B., C.
m. DISPOSITION
The judgment is modified to reflect a presentence custody credit of 158 days, consisting of 138 days of presentence custody, and 20 days of conduct credit. The judgment is affirmed as modified. The clerk of the superior court shall prepare and deliver to the Department of Corrections an amended abstract of judgment that sets forth the modified presentence custody credit award of 158 days. In addition, the amended abstract of judgment shall omit the reference to a “$20 Court security charge pursuant to section 69926,(a) GC & 1465(a)(1) PC” under item 7, “Other orders,” and shall instead refer to a “$20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1).”
Grignon, J., concurred.
Notes
All further statutory references are to the Penal Code except where otherwise noted.
Section 27 of Assembly Bill No. 1759 states: “Sections 1, 8, 9, 11, 19, 21, 23, and 25 of this act shall bеcome operative only if the total appropriation for the support of trial court funding in Item 0450-101-0932 of the Budget Act of 2003, as enacted, is two billion one hundred eighty-six million eight hundred sixty-four thousand dollars ($2,186,864,000) or more and the total appropriation for support of trial court funding in Item 0450-111-0001 of the Budget Act of 2003, as enacted, is one billion one million one thousand dollars ($1,001,001,000) or more; and in that event, shall become operative on the 15th day after the effective date of this act or on July 1, 2003, whichever is later.”
The Legislative Counsel’s Digest for Assembly Bill No. 1759 as amended on June 25, 2003, states: “An act to amend Section 116.820 of, to amend, repeal, and add Section 116.230 of, and to add Section 1021.8 to, the Code of Civil Procedure, to amend Sections 12598, 12989.3, 68086, 68926, 68926.1, 68927, and 69927 of, to amend, repeal, and add Sections
See footnote, ante, page 867.
Concurrence Opinion
I concur.
The imposition of a monetary obligation upon conviction pursuant to a Penal Code provision would seem to be a penalty that is subject to the ex post facto laws. (U.S. Const., art. 1, § 10, cl. 1; Cal. Const., art. I, § 9.) I believe the obligation results in a punishment. Defendant is not a voluntary user of the court facility.
Nevertheless, the authorities support the conclusion of the majority. Even the dissenters in Smith v. Doe (2003)
The court in People v. Castellanos (1999)
The court in People v. Rivera (1998)
I have some difficulty with the idea that by committing a crime, a defendant “chose” to use the services of the criminal justice system, although perhaps that use is what he or she should expect. Also, as the court in People v. High (2004)
Nevertheless, unlike in High, in which the charge is labeled a “penalty,” the charge here is referred to as a “fee.” (High, supra,