Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA312910, Anne H. Egerton, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Preston Baldwin of the first degree murder of Kevin Jackson (Pen. Code, § 187, subd. (a) ), the first degree robbery of Paul Arsen (§ 211), and the assault with a firearm of Arsen (§ 245, subd. (a)(2)). The jury found true the special allegation that defendant suffered six prior convictions: two prior convictions for robbery (§ 211), one prior conviction for assault with a firearm (§ 245, subd. (a)(2)), one prior conviction for assault on a peace officer (§ 245, subd. (c)), one prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), and one prior conviction for first degree burglary (§ 459). The jury was unable to reach a verdict on a charge of first degree residential burglary (§ 459) and the special allegations that defendant personally used a firearm in the commission of the first degree murder and first degree robbery (§ 12022.53, subd. (b)), that he personally used a firearm in the commission of the assault with a firearm (§§ 667.5, subd. (c), 1192.7, subd. (c), and 12022.5), and that he personally used a firearm in the commission of the first degree residential burglary (§ 12022.5, subd. (a)). The trial court dismissed the first degree burglary charge pursuant to section 1385 and struck the personal use of a firearm allegation. The trial court sentenced defendant to state prison for 110 years to life and imposed a $90 criminal conviction assessment.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that the trial court erred in instructing the jury with CALCRIM No. 400, erred in denying his motion for new trial, and erred in imposing a $30 criminal conviction assessment for each of his three convictions. We affirm.
BACKGROUND
In November 2006, April Myles lived in the downstairs unit of a duplex at 4906 South Central Avenue in Los Angeles. Also living in that residence were April’s boyfriend, Kevin Jackson, her brother, Parish Myles, and her roommate, Laura Longoria.
Because April and Parish share the same last name, we refer to each by their first name.
During the evening of November 17, 2006, April had just returned home when a woman named “Daisy” arrived and “hollered” April’s name. Daisy asked to speak with April. Daisy lived a few blocks from April, and although April had seen Daisy around the neighborhood, they had never spoken. April was caring for Daisy’s relative, Paige Allen. Daisy was upset and said that she had been receiving the in-home supportive checks-apparently for Allen-for seven years and that she should receive them. April told Daisy that she did not care about the money and that she had been caring for Allen for months without pay. After the conversation had lasted for a few minutes, Jackson stepped outside and told Daisy to “get the fuck away from the house with that bullshit.” Daisy left.
Later that evening, April and Jackson went to Daisy’s house. Daisy lived with her husband whom April knew as Dick (“Dicky”) Strong. At the front gate, Jackson called for Strong. Daisy and Strong came outside. Jackson asked Strong to keep Daisy away from his and April’s house. Jackson explained that he and April were moving and did not want any problems with anyone. Daisy said, “He can’t tell me anything.” Strong was calm “about the situation, ” and said he would talk to his wife. April and Jackson left.
About 12:30 or 12:40 the next day, April was home with Parish, Jackson, Paul Arsen, Longoria, and a few others. April was seated on a couch by the front door when she heard a knock on the door. The door was open, and April could see Strong, defendant, a short Hispanic male, and a tall African-American woman. Jackson let in Strong and the others.
Strong said that he needed to “holler” at Jackson. Jackson asked Strong why Strong had brought so many people to “holler” at him. Strong and Jackson repeated themselves, and then Strong said to Jackson a third time that he needed to “holler” at him. Jackson was standing within a couple of feet of Strong. Strong, who was standing in front of April, pulled out a handgun, pointed it at Jackson’s face, and shot Jackson. Jackson was killed by a single gunshot wound to the neck. After Strong pulled out his gun and shot Jackson, defendant, who was standing “right there” on Strong’s left, also pulled out a handgun.
After Strong shot Jackson and defendant pulled out a handgun, April ran towards the back of the house to her bedroom. April locked the bedroom door and jumped out of the window. After the first gunshot, April heard additional gunshots. April was unsure of how many shots she heard, testifying that she may have heard from three to five gunshots. April hid between some cars at the back of the house until she heard a helicopter and sirens and believed it was safe to walk to the side of the house. As she proceeded along the side of the house, April saw people jumping out of the back bedroom window.
April ran to the front door and banged on the door until Parish opened it. April went inside and saw Jackson lying in a pool of blood. As April attempted to determine if Jackson had a pulse or was breathing, “Paul” walked from the back of the house and said that he had been shot. Arsen testified that he was sitting at the kitchen table and had just started rolling a “blunt”-a cigar “bumped open and filled with marijuana”-when Jackson answered a knock at the door. Arsen heard Jackson greet the people at the door and invite them to sit down. Arsen did not see who entered, but heard what he believed were the voices of two African-American men. A couple of seconds later, Arsen heard a gunshot. After he heard the gunshot, Arsen got up from his chair and turned to his left to duck behind a kitchen wall. As he got up, Arsen heard a second shot. That shot hit Arsen in the lower abdomen. The bullet struck Arsen’s bladder and exited his right buttock. Arsen lay down and played dead.
As he lay in the kitchen, Arsen heard a male voice say, “Got to teach that nigger to fuck with my bitch.” Arsen also heard a voice say, “Get that shit. We got to get out of here.” After “they” left the house, Arsen waited before opening his eyes. Three or four other people were sitting on the kitchen floor – when the shooting started, they had “hit the floor.” Arsen asked for help getting up. Receiving no help, Arsen summoned the strength to get up. Arsen went to the bathroom where he found a cellular telephone and called an ambulance.
At about 12:40 p.m. on November 18, 2006, Los Angeles Police Department Officer Marco Bolanos, who was assigned as a helicopter pilot, received a radio call about a shooting in progress in the area of 4904 South Central Avenue. Officer Bolanos responded to the scene and saw an African-American man, who had dark hair and was wearing a dark gray shirt, running out of the south unit of what Officer Bolanos believed was a duplex. The man proceeded to the corner of 49th Street and Central Avenue where he entered the right front passenger door of a green van and the van drove away. As Officer Bolanos followed the van, he believed he saw an object thrown from the right passenger window. The van then increased its speed.
When shown a photograph of the van, Officer Bolanos testified that it appeared to be “light green or blue, light blue.” Officer Bolanos’s memory of the van was that it was more of a “greenish” color.
The police were unable to find the object.
Shortly before 1:00 p.m. on November 18, 2006, Los Angeles Police Department Officer Mark Reed responded to a shooting in progress on South Central Avenue. When Officer Reed arrived at the location, he monitored a broadcast that directed his attention to a bluish-colored minivan that was pulling away from the curb and into traffic at a high rate of speed. Officer Reed pursued the minivan. At some point, another police car joined the pursuit. When the minivan attempted to make a right turn at the intersection of 42nd Street and Central Avenue, it overshot two lanes due to its speed and collided with a vehicle that was stopped for a light.
The two police cars stopped behind and on either side of the minivan. The police officers got out of their cars to perform a felony traffic stop. As Officer Reed got out of his car, the driver of the minivan put the vehicle in reverse, “peel[ed] out the tires, ” and drove toward the officers. The minivan collided with Officer Reed’s police car. Officer Reed got into his car and tried to push the minivan. The officer driving the other police car joined Officer Reed, and, together, they pushed the minivan across the intersection and over a curb. The minivan hit a light standard, knocking the rear axle from the minivan and disabling the minivan. Defendant exited the minivan from the right front passenger door and started to run. Defendant reached into his waistband, took out a handgun, and threw the handgun toward the sidewalk. Defendant then immediately raised his hands and complied with Officer Reed’s commands to give up.
The police took April to a location on Central Avenue near 42nd or 43rd Streets where they separately showed her defendant and “Dicky.” The police asked April if she recognized the two men. April said, “Yes.” April recognized the two men’s faces and identified defendant and Dicky because they were “the two gentlemen who came in [her] home and killed Kevin.” At the time April identified defendant, she was certain of her identification. Later, the police showed April two six-packs of photographs. April circled Strong’s photograph in one of the six-packs, and defendant’s photograph in another.
At about 2:30 p.m. on November 18, 2006, Los Angeles Police Department Detective Daniel Gersna arrived at 4906 South Central Avenue. As he approached the duplex, Detective Gersna observed an expended bullet near the front door. Upon entering the duplex, Detective Gersna observed a bullet impact on the north wall of the residence in the dining room. Detective Gersna then went to 42nd Street and Central Avenue and looked inside the van. Detective Gersna observed a cigarette lighter in the shape of a gun on the front passenger floorboard.
Los Angeles Police Department Detective Kelle Baitx responded to the crime scene at 42nd Street and Central Avenue. There, Detective Baitx recovered a loaded two-inch, five-shot, .38 revolver to the rear of the minivan. In the revolver’s cylinder were three spent casings and two live rounds. Detective Baitx recovered three cell phones from the driver’s floorboard, a lighter in the shape of a small automatic handgun from the front passenger floorboard, and a letter addressed to April Myles at 4906 South Central Avenue. A few days after the shooting, Detective Gersna examined the minivan at the storage yard and recovered a cordless house phone that belonged to April and Arsen’s car keys. While Arsen was in the hospital, the police showed him property that belonged to him. The items consisted of his car keys, a lighter in the shape of a pistol, and two cellular telephones.
Los Angeles Police Department firearms examiner Starr Sachs examined the expended bullets, cartridge cases, and the firearm recovered in this case. Sachs opined that the expended bullets and cartridges had been fired from the recovered firearm. The parties stipulated that at 4:00 p.m. on November 18, 2006, an officer conducted a gunshot residue kit on defendant and gunshot residue was not detected. Bryan Burnett, defendant’s gunshot residue expert, opined that he would expect to detect gunshot residue on all persons who were in an apartment living room where three shots were fired from a.38 firearm. Burnett also testified that gunshot residue is a powder that does not aggressively adhere to skin. Accordingly, it is “quite easy” to get gunshot residue off hands.
Dorothy Lowe, defendant’s niece, lived with defendant. Daisy was Lowe’s cousin. On November 17, 2006, defendant was home all night. On November 18, 2006, defendant left the house some time before noon. Lowe believed that defendant left at “like 11:00 or 11:30.” Lowe and defendant lived about 20 blocks from Daisy’s house.
DISCUSSION
I. Defendant Forfeited Any Challenge To CALCRIM No. 400 By Failing To Object In The Trial Court Or To Request Appropriate Clarifying Or Amplifying Language
Defendant contends that, as given in this case, CALCRIM No. 400 incorrectly instructed the jury on the mens rea of an aider and abettor because it told the jury that an aider and abettor was “equally guilty” of a crime whether he committed the crime personally or aided and abetted the perpetrator. Defendant contends that we may and should review this contention even though no objection to, or request for modification of, the instruction was made in the trial court because the instruction affected his substantial rights within the meaning of section 1259. Defendant further contends that if he was obligated to object or request modification in the trial court, defense counsel was ineffective for having failed to do so. Because defendant failed to object to the instruction in the trial court or to request appropriate clarifying or amplifying language, he has forfeited review of this contention.
Section 1259 provides, “Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
The trial court instructed the jury with CALCRIM No. 400 as follows:
“A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” The instruction has since been modified to omit the “equally guilty” language.
CALCRIM No. 400 has the potential to mislead the jury. As the court in People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165 stated, “The Supreme Court reasoned that ‘when a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s own mens rea. If that person’s mens rea is more culpable than another’s, that person’s guilt may be greater even if the other might be deemed the actual perpetrator.’ ([People v.] McCoy [(2001)] 25 Cal.4th [1111, ] 1117, 1122, italics added.) ‘“[O]nce it is proved that ‘the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea.’”’ (Id. at p. 1118.) When the offense is a specific intent offense, ‘“the accomplice must ‘share the specific intent of the perpetrator’; this occurs when the accomplice ‘knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.’”’ (Ibid.) In the case of murder, the aider and abettor ‘must know and share the murderous intent of the actual perpetrator.’ (Ibid.) [¶] Though McCoy concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator, its reasoning leads inexorably to the further conclusion that an aider and abettor’s guilt may also be less than the perpetrator’s, if the aider and abettor has a less culpable mental state. (See People v. Woods (1992) 8 Cal.App.4th 1570, 1577 [11 Cal.Rptr.2d 231].) Consequently, CALCRIM No. 400’s direction that ‘[a] person is equally guilty of the crime [of which the perpetrator is guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it’ (CALCRIM No. 400, italics added), while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified.”
In People v. Samaniego, supra, 172 Cal.App.4th at p. 1163, the court considered whether a challenge to CALCRIM No. 400 had been forfeited. The court stated, “Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ [Citations.]” The court stated that because CALCRIM No. 400 is generally an accurate statement of law, though misleading in that case, the defendant was obligated to request modification or clarification and, having failed to do so, forfeited his challenge to the instruction. (Ibid.) Here, defendant failed to object to CALJIC No. 400 or to request appropriate clarifying or amplifying language. Accordingly, defendant has forfeited appellate review of this claim. (People v. Samaniego, supra, 172 Cal.App.4th at p. 1163.)
As for defendant’s contention that any forfeiture occasioned by defense counsel’s failure to object to CALCRIM No. 400 or to request its modification constitutes ineffective assistance, “‘[g]enerally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.]” (People v. Foster (2003) 111 Cal.App.4th 379, 383.) “Generally, ... prejudice must be affirmatively proved. [Citations.] ‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) If the defendant fails to make a sufficient showing either of deficient performance or prejudice, the ineffective assistance claim fails. (People v. Foster, supra, 111 Cal.App.4th at p. 383.)
“When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.) “A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The record on appeal does not reveal the reason defense counsel failed to object to the challenged language in CALCRIM No. 400 or to request that the instruction be modified. It may be that defense counsel did not object to the instruction or request that it be modified because she believed that the evidence demonstrated that defendant shared the same mental state as Strong. Under the circumstances, any claim of ineffective assistance with respect to the asserted deficiencies is better suited to a petition for writ of habeas corpus. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
II. The Trial Court Did Not Abuse Its Discretion In Denying Defendant’s New
Trial Motion
Defendant contends that the trial court abused its discretion in denying his new trial motion because there was insufficient evidence to support his identification as one of the perpetrators. The trial court did not abuse its discretion.
Section 1181, subdivision (6) provides that a court may grant a new trial when the verdict is contrary to the evidence. “In deciding such a motion, the trial court’s function is to ‘see that the jury intelligently and justly perform[ed] its duty and, in the exercise of a proper legal discretion, to determine whether there is sufficient credible evidence to sustain the verdict.’ (People v. Robarge (1953) 41 Cal.2d 628, 634 [262 P.2d. 14] (Robarge).) The trial court’s duty is to review the evidence independently and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. (Id. at p. 633.)” (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251.)
“The trial court is not bound by the jury’s determinations as to the credibility of witnesses or as to the weight or effect to be accorded to the evidence. [Citations.] Thus, the presumption that the verdict is correct does not affect the trial court’s duty to give the defendant the benefit of its independent determination as to the probative value of the evidence. [Citation.] If the court finds that the evidence is not sufficiently probative to sustain the verdict, it must order a new trial. [Citations.]” (People v. Dickens, supra, 130 Cal.App.4th at pp. 1251-1252.) A trial court may not, however, arbitrarily reject a verdict that is supported by substantial evidence. (Id. at p. 1251.)
“The trial court has broad discretion in determining whether the evidence has sufficient probative value to sustain the verdict [citation], and its order will not be reversed on appeal ‘absent a manifest and unmistakable abuse of that discretion.’ [Citation.]” (People v. Dickens, supra, 130 Cal.App.4th at p. 1252.) In reviewing the trial court’s ruling on defendant’s motion for new trial based on the insufficiency of the evidence, we review the “evidence in the light most favorable to the trial court’s ruling, drawing all factual inferences that favor the trial court’s decision. [Citations.]” (Ibid.) We will uphold the trial court’s factual findings, express or implied, if they are supported by “any substantial evidence.” (Ibid.) We will reverse the trial court’s order only if, as a matter of law, there is no substantial evidence to support a judgment contrary to the verdict. (Ibid.; People v. Serrato (1973) 9 Cal.3d 753, 761 [“In ruling upon a motion for a new trial, the trial court is required to independently weigh the evidence, but an appellate court will not modify or set aside the verdict if there is any substantial evidence to support it. [Citations.]”], disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
Defendant moved for a new trial arguing that insufficient evidence supported his identity as one of the perpetrators. The trial court denied the motion, finding that the prosecution had proved the charges beyond a reasonable doubt. On appeal, defendant contends that the trial court erred because he presented a “credible alibi defense” through Lowe; April and Arsen described the person who accompanied Strong as having a ponytail, but he did not; April described the person who accompanied Strong as wearing a multi-colored shirt, but he was not; there was no blood on his clothes or gunshot residue on his hands although a defense expert testified there would likely have been gunshot residue if he had been present; and April was uncertain when she made her six-pack identification of defendant. Because substantial evidence supports the trial court’s ruling, we reject defendant’s argument.
“[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) After the shooting, the police took April to a location on Central Avenue near 42nd or 43rd Street where they showed her defendant. April recognized defendant as one of the men who came into her home and killed Jackson and identified him. April was certain of her identification. At trial, April again identified defendant as one of the perpetrators. April testified that defendant arrived at her home with Strong and others. According to April, defendant stood next to Strong and pulled out a handgun after Strong shot Jackson. April’s testimony was substantial evidence of defendant’s identity as one of the perpetrators. (Ibid.) In addition, defendant was apprehended fleeing from the scene with Strong, and defendant attempted to discard the murder weapon. Thus, notwithstanding any conflicts in the evidence such as the description of the perpetrator’s hair or clothes, or the absence of evidence such as the presence on defendant of the victim’s blood or gunshot residue, or any uncertainty in April’s six-pack identification of defendant, the trial court did not manifestly and unmistakably abuse its broad discretion in denying defendant’s new trial motion. (People v. Dickens, supra, 130 Cal.App.4th at p. 1252.)
III. Government Code Section 70373 Is Not A Proscribed Ex Post Facto Law
Defendant contends that the trial court’s imposition of a $30 Government Code section 70373 assessment for each of his three convictions violates the United States and California constitutional prohibitions on ex post facto laws because the contested section was enacted after defendant committed the charged offenses. We disagree.
Government Code section 70373 provides, in pertinent part, “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.... The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.” (Gov. Code, § 70373, subd. (a)(1).)
The three offenses of which defendant was convicted were committed on November 18, 2006. Government Code section 70373 became effective on January 1, 2009. (Stats.2008, c. 311 (S.B.1407), § 6.5.) Defendant was convicted of the three offenses on July 17, 2009.
“Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of the state Constitution prohibit the passage of ex post facto laws. ([People v.] Grant [(1999)] 20 Cal.4th [150, ] 158.) California’s ex post facto law is analyzed in the same manner as the federal prohibition. (Ibid.) ‘[T]he ex post facto clauses of the state and federal Constitutions are “aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’”’ (Grant, at p. 158 quoting California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 504 [13 L.Ed.2d 588, 115 S.Ct. 1597].)” (People v. Alford (2007) 42 Cal.4th 749, 755.)
In determining whether a law increases punishment, as defendant contends here, “we consider ‘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.’ (People v. Castellanos (1999) 21 Cal.4th 785, 795 [88 Cal.Rptr.2d 346, 982 P.2d 211].) [¶] ‘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 examine whether the statutory scheme is “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” [Citation.] Because we “ordinarily defer to the legislature’s stated intent, ” [citation], “‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, ” [citations].’ (Smith v. Doe (2003) 538 U.S. 84, 92 [155 L.Ed.2d 164, 123 S.Ct. 1140]; see also People v. Castellanos, supra, 21 Cal.4th at pp. 794-795.)” (People v. Alford, supra, 42 Cal.4th at p. 755.)
Government Code section 70373 was enacted “as ‘part of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised.’ (People v. Fleury (2010) 182 Cal.App.4th 1486, 1489 [106 Cal.Rptr.3d 722].) Since its history and substance demonstrate that it is not a penal statute, in terms or effect, its application to crimes committed before the effective date does not offend the prohibition against ex post facto laws. (Id. at pp. 1488, 1490, 1493; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414 [106 Cal.Rptr.3d 688]; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4 [99 Cal.Rptr.3d 221].) The Fleury and Castillo cases recognize that the phrasing of the statute is similar to the language of the court security fee law (Pen. Code, § 1465.8), which our Supreme Court held did not violate the ex post facto rule. (People v. Alford (2007) 42 Cal.4th 749, 754 [68 Cal.Rptr.3d 310, 171 P.3d 32].)” (People v. Davis (2010) 185 Cal.App.4th 998, 999.) Accordingly, defendant’s contention fails.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.