THE PEOPLE, Plaintiff and Respondent, v. JAMAAL RAYSHAWE WALLACE, Defendant and Appellant.
No. B170872
Court of Appeal, Second District, Division Five, California
July 20, 2004
31 Cal. App. 4th 867
THE PEOPLE, Plaintiff and Respondent, v. JAMAAL RAYSHAWE WALLACE, Defendant and Appellant.
[CERTIFIED FOR PARTIAL PUBLICATION*]
Gary Mandinach, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
TURNER, P. J.—
I. INTRODUCTION
Defendant, Jamaal Rayshawe Wallace, appeals from his conviction of second degree robbery (
We appointed counsel to represent defendant on appeal. Counsel has filed a brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442 [158 Cal.Rptr. 839, 600 P.2d 1071]; see Smith v. Robbins (2000) 528 U.S. 259, 264 [145 L.Ed.2d 756, 120 S.Ct. 746].) On January 15, 2004, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contеntions, or arguments he wished this court to consider. No response has been received. We asked the parties to address two issues, one of which we will discuss in the published portion of this opinion. In the published portion of this opinion, we conclude that, consistent with the ex post facto clauses of the United States and California Constitutions, the
A. The $20 Court Security Fee
Defendant сontends the trial court erroneously imposed a $20 court security fee. Defendant argues that since he committed his offense prior to the effective date of
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 (
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
California Constitution, article IV, section 12, subdivision (c) mandates the budget be sent to the Gоvernor 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
A July 27, 2003, Senate report again summarized Assembly Bill No. 1759 without specific reference to
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, 521 U.S. 346, 361 (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examinе whether the statutory scheme is ’ “so punitive either in purpose or effect as to negate [the State‘s] intention” to deem it “civil.” ’ Ibid. (quoting United States v. Ward, 448 U.S. 242, 248–249 ... (1980)). Because we ‘ordinarily defer to the legislature‘s stated intent,’ Hendricks, supra, at 361, ’ “only the clearest proof” will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,’ Hudson v. United States, 522 U.S. 93, 100 (1997) (quoting Ward, supra, at 249); see also Hendricks, supra, at 361; United States v. Ursery, 518 U.S. 267, 290 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365
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, 538 U.S. at p. 93.) The United States Supreme Court has described the judicial analysis that must be utilized in assessing an ex post facto claim: “We consider thе statute‘s text and its structure to determine the legislative objective. Flemming v. Nestor, 363 U.S. 603, 617 (1960). A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it. 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.’ ” (Smith v. Doe, supra, 538 U.S. at pp. 92-93.)
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
The second inquiry then is whether
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;
The second Mendoza-Martinez factor—whether
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
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
Our views in this regard are consistent with other decisions. Appellate courts have cоnsistently held that a minimal fee, imposed for a nonpunitive purpose and without punitive effect, is not subject to the limitations of the ex post facto clause. (People v. Rivera (1998) 65 Cal.App.4th 705, 708–712 [76 Cal.Rptr.2d 703] [jail booking ($135) and classification ($33) fees]; Taylor v. State of Rhode Island (1st Cir. 1996) 101 F.3d 780, 782–784 [$15 monthly probation fee]; Goad v. Florida Dept. of Corrections (Fla. 2003) 845 So.2d 880, 882-885 [$50 per day incarceration-cost fee]; Hayden v. State (Ind.Ct.App. 2002) 771 N.E.2d 100, 102-104 [$2 document storage fee and $2 automated record-keeping fee]; State v. Oliver (Iowa 1998) 588 N.W.2d 412, 415-416 [$100 probation enrollment fee]; State v. Likins
B., C.*
III. 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
Grignon, J., concurred.
MOSK, J., Concurring.—I concur.
The imposition of a mоnetary obligation upon conviction pursuant to a Penal Code provision would seem to be a penalty that is subject to the ex post facto laws. (
Nevertheless, the authorities support the conclusion of the majority. Even the dissenters in Smith v. Doe (2003) 538 U.S. 84 [155 L.Ed.2d 164, 123 S.Ct. 1140], appear to acknowledge that some sanctions may not be subject to the ex post facto clause of the United States Constitution. Justice Ginsburg, in disagreeing with the majority that a sex registration act did not violate the ex post facto clause, said, “What ultimately tips the balance for me is the Act‘s excessiveness in relation to its nonpunitive purpose.” (Id. at p. 116.) Here, the provision involves a modest sum. Justice Stevens, also dissenting in Smith v. Doe, stated, “In my opinion, a sanction that (1) is imposed on everyone who
The court in People v. Castellanos (1999) 21 Cal.4th 785 [88 Cal.Rptr.2d 346, 982 P.2d 211], held that California‘s sex offender registration provision did not violate the ex post facto clauses of the United States and California Constitutions. A dissent stated, “as the lead opinion itself states, ‘two factors appear important in each case: whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature‘s contrary intent.’ ” (Id. at p. 806 (dis. opn. of Mosk, J.).) Justice Mоsk concluded that the sex offender registration provisions was a penal sanction because it was sufficiently punitive in nature or effect. It is tenable that the provision here is not ” ‘so punitive in nature or effect that it must be found to constitute punishment despite the Legislature‘s contrary intent. ” (Ibid, italics omitted.)
The court in People v. Rivera (1998) 65 Cal.App.4th 705, 711 [76 Cal.Rptr.2d 703], said, “The fact that the fees come into play only upon a criminal conviction is a factor which can be viewed as punitive. However, an alternative view is that this simply reflects a legislative determination that those who are not convicted are involuntary users of the jail system who should not have to pay for services for which they did not choose to avail themselves; whereas those who are convicted in effect ‘chose’ to use the jail services when they chose to commit an unlawful act.”
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 expeсt. Also, as the court in People v. High (2004) 119 Cal.App.4th 1192 [15 Cal.Rptr. 3d 148] (High) noted in holding that the imposition of a state court facilities construction penalty upon a convicted defendant violated the state and federal ex post facto clauses, if the monetary charge “were a user fee, there would be a rational relationship between the amount of the assessment and the extent of the individual[‘s] use.” (Id. at p. 1198.) Here, the $20 charge is imposed no matter how long the defendant is in trial or even if he pleads guilty.
Nevertheless, unlike in High, in which the charge is labeled a “penalty,” the charge here is referred to as a “fee.” (High, supra, 119 Cal.App.4th at p. 1199.) The other points in the majority opinion also are compelling. Accordingly, I conclude that the current state of the law requires a conclusion that the fee in question does not violate ex post facto provisions.