Opinion
C067389 Super. Ct. No. CRF10419
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO MIGUEL ARTEAGA, SR., Defendant and Appellant.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Ernesto Miguel Arteaga, Sr., pleaded guilty to continuous sexual abuse of a child under age 11 between April 1993 and April 2001. (Pen. Code, § 288.5, subd. (a).) He was sentenced to prison for 12 years and was ordered to pay, among other things, a $300 sex crime fine (§ 290.3) plus a $300 state penalty assessment (§ 1464, subd. (a)(1)) and a $210 county penalty assessment (Gov. Code, § 76000, subd. (a)(1)); a $120 DNA penalty assessment (Gov. Code, §§ 76104.6, 76104.7); a $60 emergency medical services penalty assessment (Gov. Code, § 76000.5); a $150 court facilities fee (Gov. Code, § 70372); a $60 state surcharge (§ 1465.7); and a $40 court security fee (§ 1465.8).
At sentencing in January 2011, the trial court amended count 1 to allege that victim E.L. was "under the age of 11 years at the time of the commission of the offense," rather than the originally pleaded "14" years. The trial court did not modify the count's allegation that the offense occurred "Between the 23rd day of April, 1993 and 24th day of April, 2004" and did not modify E.L.'s pleaded birth date, which was in April 1990. Following the amendment, defendant reaffirmed his plea of guilty.
By pleading both E.L.'s date of birth and her having been under age 11, the amended complaint necessarily alleged that the offense occurred less than 11 years following the birth date, i.e., in April 2001 or earlier. Although the trial court did not modify the allegation that the crime occurred between "the 23rd day of April, 1993 and 24th day of April, 2004," that allegation remains accurate because the greater interval contains the less. (Civ. Code, § 3536.) Nonetheless, for purposes of this appeal, it is more precise to say that the crimes occurred in 2001 or earlier.
Undesignated statutory references are to the Penal Code.
The relevant 2010 amendment to section 2933 does not entitle defendant to additional conduct credit because he was ordered to register as a sexual offender. (Former § 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
Defendant contends, and the Attorney General agrees, that because the crimes occurred in 2001 or earlier, (1) the $300 sex crime fine must be reduced to $200, (2) the $120 DNA penalty assessment must be stricken, (3) the $60 emergency medical services penalty assessment must be stricken, (4) the $150 court facilities fee and the $60 state surcharge must be stricken, and (5) the $40 court security fee must be reduced to $30. We agree with these contentions. Defendant further contends (6) that the state and county penalty assessments to the sex crime fine must be stricken. The Attorney General disagrees with this contention and so do we. Nonetheless, because the sex crime fine must be reduced to $200, the state penalty assessment must also be reduced to $200 and the county penalty assessment must be reduced to $140.
We will modify the judgment accordingly.
BACKGROUND
Because the matter was resolved by plea, the background is taken from the prosecutor's statement of the factual basis for the plea. Given defendant's contentions on appeal, it is only necessary to provide a brief summary of the background.
Between April 1993 and April 2001, defendant engaged in three or more acts of sexual conduct with E.L. Defendant's wife and E.L.'s mother are sisters. E.L. would frequently stay the night or visit with her cousins, and defendant began molesting E.L. when she was three years old.
Among other things, in the middle of the night defendant would remove E.L.'s clothes, lick her breasts, vagina and rectum, and put one or more fingers in her vagina and rectum. Defendant would have E.L. place her hand around his penis and masturbate him, and defendant would rub his penis between the lips of her vagina without putting it inside. He would also rub the head of his erect penis between her buttocks and around the opening of her rectum. On a number of occasions, defendant had E.L. masturbate herself while he observed. E.L. estimated that these events happened approximately 50 times a year between April 1993 and April 2001.
E.L. also described incidents when she was 12 and 13 in which defendant put his penis in her vagina and rectum by force, causing her to bleed. Defendant would tell her that if she ever told anyone he would kill her by chopping her up into pieces.
Defendant was interviewed by Detective Million. Defendant admitted that he molested his niece E.L. from the time she was five years old until she was eight years old. He described the incidents as his placing the bare skin of his hand on the bare skin of the child's vagina and rubbing it, and that the incidents occurred two to three times a year for approximately three years.
Defendant pleaded guilty to continuous sexual abuse of a child under age 14, then reaffirmed his guilty plea with the modification that the victim was under age 11.
DISCUSSION
I
Defendant contends, and the Attorney General concedes, that the $300 base sex crime fine (§ 290.3) must be reduced to $200. We agree.
As defendant acknowledged when he reaffirmed his plea, his offense was committed prior to E.L.'s 11th birthday in April 2001. The amendment raising the fine from $200 to $300 was enacted in 2006 and cannot be applied retroactively to this case without violating ex post facto principles. (Stats. 2006, ch. 337, § 18, p. 2610, eff. Sept. 20, 2006; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) Because the $300 base fine was unauthorized, it may be corrected at any time. (Id. at p. 1249.) We will modify the judgment to impose a $200 base sex crime fine. We address the amount of the state and county penalty assessments for this fine in part VI of this opinion.
II
Defendant also contends, and the Attorney General concedes, that the $120 DNA penalty assessment must be stricken. We agree.
The DNA penalty assessment was enacted in two parts in November 2004 (Gov. Code, § 76104.6; Prop. 69, § IV.1, eff. Nov. 3, 2004) and July 2006 (Gov. Code, § 76104.7; Stats. 2006, ch. 69, § 18, pp. 1251-1252, eff. July 12, 2006). The enactments came after the instant crimes were committed.
In People v. Batman (2008) 159 Cal.App.4th 587 (Batman), this court held that a Government Code section 76104.6 penalty assessment "must be stricken because [the] defendant committed the qualifying offense prior to the [statute's] effective date." (Id. at p. 591.) As the Attorney General recognizes, our reasoning in Batman is equally applicable to a penalty assessment imposed under Government Code section 76104.7. We will modify the judgment by striking the $120 DNA penalty assessment.
III
Defendant further contends, and the Attorney General concedes, that the $60 emergency medical services penalty assessment (Gov. Code, § 76000.5) must be stricken. Again, we agree.
The emergency medical services penalty assessment was enacted in 2006. (Stats. 2006, ch. 841, § 1, pp. 6625-6626, eff. Jan. 1, 2007.) Like the DNA penalty assessment at issue in Batman, the emergency medical services penalty assessment is "denominated a 'penalty' and is based upon a percentage of any fine, penalty, or forfeiture." (Batman, supra, 159 Cal.App.4th at p. 591.) The emergency medical services penalty assessment is also collected in the same manner as the DNA penalty assessment. (Ibid.) As with the DNA penalty assessment, the emergency medical services penalty assessment is "a punitive ex post facto law with respect to offenses committed prior to its effective date." (Ibid.) We will modify the judgment by striking the $60 emergency medical services penalty assessment.
IV
Defendant next contends, and the Attorney General concedes, that the $150 court facilities fee and the $60 state surcharge must be stricken. We agree.
The court facilities fee was enacted in 2002 and became effective in January 2003. (Gov. Code, § 70372; Stats. 2002, ch. 1082, § 4, pp. 6994-6995.) The state surcharge was enacted in September 2002. (§ 1465.7; Stats. 2002, ch. 1124, § 46, pp. 7242-7243, eff. Sept. 30, 2002.) This court previously held that neither the fee nor the surcharge can be applied retroactively to offenses committed before their respective effective dates. (People v. High (2004) 119 Cal.App.4th 1192, 1197-1199.)
The Attorney General agrees that, pursuant to defendant's reaffirmation of his plea, his offense occurred prior to E.L.'s 11th birthday in 2001. Thus, neither the fee nor the surcharge can be applied retroactively to this case. We will modify the judgment by striking the $150 court facilities fee and the $60 state surcharge.
Because the court facilities fee cannot be imposed in any amount, it is not necessary to consider defendant's contention that the fee cannot be greater than $20.
V
In addition, defendant contends, and the Attorney General concedes, that the $40 court security fee (§ 1465.8) must be modified to $30. We agree.
At the time of defendant's conviction (September 17, 2010), the court security fee was $30. (§ 1465.8, former subd. (a); Stats. 2009, ch. 342, § 5, eff. Jan. 1, 2010.) The court security fee was raised from $30 to $40 in October 2010. (Stats. 2010, ch. 720, § 33, eff. Oct. 19, 2010.) We will modify the judgment to reduce the court security fee from $40 to $30.
VI
Defendant also contends, however, that there is no legal basis to impose the state (§ 1464) and county (Gov. Code, § 76000) penalty assessments in connection with the sex crime fine. The Attorney General disagrees and so do we.
Defendant makes an identical challenge to the penalties under section 1465.7 and Government Code sections 70372, 76000.5, 76104.6 and 76104.7. In parts II through IV, above, we conclude those penalties must be stricken. Thus, as to those penalties, the present contention is moot.
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Noting that the state and county penalty assessments attach to every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses, defendant claims neither penalty assessment applies here because he has been sentenced to prison and the prison, not the court, will be collecting his fine. (§ 1464, subd. (a)(1), Gov. Code, § 76000, subd. (a)(1).)
If defendant's argument was accepted, however, the penalty assessments would be imposed on two less culpable groups while exempting a more culpable group. The assessments would be imposed on persons convicted of offenses carrying no state prison penalty and persons convicted of offenses carrying prison penalties who nevertheless receive probation, but the assessments would not be imposed on state prisoners whose fines will be collected by the California Department of Corrections and Rehabilitation. The Legislature could not have intended such a result. (People v. Moore (2011) 51 Cal.4th 1104, 1122.)
Applying the rules of statutory interpretation, which require us to read statutes in their entirety and in context rather than focusing on a few words in isolation, we interpret section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)(1) to apply generally to the fines, penalties and forfeitures that courts may impose and may collect. We do not interpret those statutes to apply only when a court does in fact actually collect a particular fine. Because the section 290.3 sex crime fine is among those that courts may impose and may collect (for example, from probationers), defendant's fine is subject to the penalty assessments at issue in this case. (§ 1215.) Had the Legislature intended to exempt state prisoners, but not probationers, from state and county penalty assessments, it could have clearly said so.
Defendant relies on People v. Dorsey (1999) 75 Cal.App.4th 729, which held that the state and county penalty assessments do not apply to direct victim restitution. (Id. at pp. 731-738.) Dorsey relied in part on the fact that "[n]o statute directly authorizes a court in a case where the defendant has been sentenced to prison, to collect direct victim restitution." (Id. at p. 734.) But Dorsey did not consider whether its reasoning should extend beyond the victim restitution context in a manner that would exempt state prisoners, but not misdemeanants and probationers, from various state and county penalty assessments. Dorsey is not authority for a proposition it did not consider. (E.g., People v. Knoller (2007) 41 Cal.4th 139, 154-155.)
Thus, contrary to defendant's contention, we conclude there is a legal basis to impose the penalty assessments in connection with the sex crime fine. Nonetheless, because we conclude in part I above that the sex crime fine must be reduced to $200, the state penalty assessment must also be reduced from $300 to $200 (§ 1464, subd. (a)(1)) and the county penalty assessment must be reduced from $210 to $140 (Gov. Code, § 76000, subd. (a)(1)). We will modify the judgment accordingly.
DISPOSITION
The judgment is modified to impose a $200 sex crime fine, a $200 state penalty assessment, a $140 county penalty assessment, and a $30 court security fee. The DNA penalty assessment, emergency medical services penalty assessment, court facilities fee, and state surcharge are stricken. 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 of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
MAURO, J.
We concur:
ROBIE, Acting P. J.
BUTZ, J.