Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Paul A. Vortmann, Judge, Super. Ct. No. VCF104729.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Defendant Michael Johnson was sentenced to 256 years to life in prison upon conviction of one count of forcible rape and two counts of forcible oral copulation. The sentence included increases based on the three strikes law and several other provisions of the Penal Code. It was based in part on the trial court’s findings that defendant was a habitual sex offender within the meaning of Penal Code section 667.71 and that he had previously been convicted of one of the sex offenses enumerated in section 667.61. In an earlier appeal, we vacated the sentence, holding that those two findings were not supported by the record. The trial court resentenced defendant to 182 years to life.
Subsequent statutory references are to the Penal Code unless noted otherwise.
In this appeal, defendant argues: (1) the sentence contravened Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham); (2) the court violated section 667.61, subdivision (f), by using the same facts to increase the sentence under more than one provision of law; (3) a sentence of 182 years to life is cruel or unusual punishment; and (4) the court imposed a $60 court security fee improperly. We reject these arguments. The People concede that a restitution fine of $1,000 imposed under section 294 was unauthorized in this case because the victim was not under age 14. We order that fine stricken and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
The facts are set forth at length in our previous opinion in this case, People v. Johnson (2006) 139 Cal.App.4th 1135 (Johnson). In brief, Johnson, then 34, saw a 15-year-old girl talking on a pay phone in Visalia one night in 1996. He forced her into his truck at knifepoint, drove out into the country, and raped her. Police found him seven years later when DNA in a sample taken from the victim was found to match defendant’s DNA information stored in an FBI databank. He was in prison at the time the DNA match was discovered. (Id. at pp. 1141-1144.)
After a jury trial, defendant was found guilty in counts one and two of forcible oral copulation (§ 288a, subd. (c)(2)) and in count three of forcible rape (§ 261, subd. (a)(2)). Special allegations that defendant kidnapped the victim to commit the offenses (§ 667.8, subd. (a)) and used a knife in their commission (§ 12022.3, subd. (a)) were found true by the jury. Allegations that he was a habitual sex offender (§ 667.71); had a prior conviction of an enumerated sex offense (§ 667.61, subds. (a), (d)(1)); committed the current offenses under aggravated circumstances (§ 667.61, subds. (a), (d)(2)); had prior convictions of three serious felonies that constituted strikes (§ 667, subd. (a)(1) & § 1170.12, subd. (c)(2)(A)); and served two prior prison terms (§ 667.5, subd. (b)) were found true by the court in a bifurcated bench trial. Applying the three strikes law and other sentencing provisions, the court calculated and imposed a sentence of 256 years to life. (Johnson, supra, 139 Cal.App.4th at p. 1141.)
We reversed the findings that defendant was a habitual sex offender (§ 667.71) and had previously been convicted of an enumerated sex offense (§ 667.61, subds. (a), (d)(1)). (Johnson, supra, 139 Cal.App.4th at p. 1141.) In the unpublished portion of our previous opinion, we explained that, while both of these findings could properly have been based on a prior conviction of a violation of section 289, subdivision (a), the record showed only that defendant was previously convicted of violating section 289; it did not sufficiently show which subdivision he violated. (People v. Johnson (May 25, 2006, F046939), pp. 39, 44, 52.) We concluded that the record did support a finding that defendant committed the current offenses under aggravated circumstances (§ 667.61, subds. (a), (d)(2)) and remanded for resentencing and a possible retrial of the allegations upon which we reversed the court’s findings. (People v. Johnson, supra, F046939 at pp. 54, 57.) On remand, the People decided not to retry those allegations. The court did not rely on those findings when it resentenced defendant to a term of 182 years to life.
The sentence was calculated as follows: On count one, forcible oral copulation (§ 288a, subd. (c)(2)), the base sentence was 25 years to life because the defendant kidnapped the victim, substantially increasing the risk of harm (§ 667.61, subds. (a), (d)(2)). This was tripled to 75 years to life under the three strikes law (§ 1170.12, subd. (c)(2)(A)(i)). To this were added a consecutive four years for the knife-use enhancement (§ 12022.3, subd. (a)) and five years for each of two prior felonies (§ 667, subd. (a)(1)), for a total of 89 years to life on count one.
On count two, forcible oral copulation (§ 288a, subd. (c)(2)), the sentence was 31 years to life under the three strikes law (§ 1170.12, subd. (c)(2)(A)(iii)). This was an indeterminate sentence with a minimum term equal to the term otherwise imposed by the court, including enhancements—here, the eight-year upper term plus four years (knife enhancement [§ 12022.3, subd. (a)]), nine years (kidnapping special circumstance [§ 667.8, subd. (a)]), and 10 years (two prior felonies [§ 667, subd. (a)(1)]). Determinate terms of nine years for the kidnapping special circumstance, four years for the knife enhancement, and 10 years for the two prior felonies were added to this, making a total of 54 years to life for count two.
On count three, forcible rape (§ 261, subd. (a)(2)), the sentence was 25 years to life under the three strikes law (§ 1170.12, subd. (c)(2)(A)(ii)). Four years for the knife enhancement (§ 12022.3, subd. (a)) and 10 years for the two prior felonies (§ 667, subd. (a)(1)) were added to this, for a total of 39 years to life on count three. All these sentences were set to run consecutively.
DISCUSSION
I. Blakely and Cunningham
The sentence imposed on remand included an upper term for count two; it also provided that the terms for the three counts were to run consecutively. Defendant contends that these aspects of the sentence contravened the United States Supreme Court’s Sixth Amendment rulings in Blakely and Cunningham. After briefing was completed in this case, the California Supreme Court applied Blakely and Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). As we will explain, Black II resolves both issues—upper term and consecutive sentences—against defendant. We need not discuss the People’s assertion that defendant forfeited his claim by failing to assert it in the trial court.
Upper term
In Blakely, the United States Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with “‘deliberate cruelty’” and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the state’s sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. “Our precedents make clear … that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303.) The court continued:
“In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, 542 U.S. at pp. 303-304 .)
On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law as it stood then was erroneous, therefore, unless it was supported by prior convictions, facts found by the jury, or facts admitted by the defendant.
It has since been amended in response to Cunningham. (See Black II, supra, 41 Cal.4th at p. 808, fn. 2.)
The California Supreme Court filed its opinion in Black II on July 19, 2007. It held that the upper term imposed in that case was not erroneous under Cunningham because it was authorized by defendant’s prior offenses and the jury’s finding that the defendant committed the offense by means of force and fear. (Black II, supra, 41 Cal.4th at pp. 816-818.) Whether the trial judge would have imposed the upper term based on these factors alone was irrelevant; the question was only whether it could have done so under the sentencing law. It could: California’s determinate sentencing law allows the trial court to impose the upper term based on a single aggravating factor. Each of these two factors authorized the upper term independently under California law and each was independently established by means consistent with the Sixth Amendment as interpreted in Blakely and Cunningham. The presence of either one alone would have been sufficient to make the upper term constitutional. (Black II, supra, 41 Cal.4th at pp. 814-816, 819-820.)
Black II makes it clear that the trial court need not have relied expressly on one of the factors approved by Blakely and Cunningham so long as one of those factors was present in the record and the court was aware of it. The trial court in Black did not assert at sentencing that it was using the defendant’s prior convictions as an aggravating factor in support of the upper term. Instead, it said it was imposing the upper term because of “‘the nature, seriousness, and circumstances of the crime.’” (Black II, supra, 41 Cal.4th at p. 816.) It also stated that it considered “other aggravating circumstances set out in the district attorney’s sentencing brief.” These included the defendant’s criminal history. The probation report included the defendant’s criminal history also. This was sufficient even though the trial court did not mention the defendant’s criminal history explicitly. (Id. at p. 818.)
Further, where a factor properly established under the Sixth Amendment is present, the court’s reliance on other factors that would not satisfy the Sixth Amendment on their own does not undermine the sentence:
“[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
In light of all this, there was no constitutional error in using an upper term in calculating the sentence in this case. At sentencing, the court stated:
“The court finds no mitigating factors with respect to these charges. I find aggravating factors, that the crime involved great violence, great bodily harm and the threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness or callousness. The victim was particularly vulnerable. [¶] … [¶] … The manner in which the crime was carried out indicates professionalism, planning and sophistication. He has been engaged in violent conduct which indicates a serious danger to society. I find his prior convictions as an adult are numerous. He served prior prison terms. He was on parole at the time the crime was committed. And his prior performance on parole was unsatisfactory.”
According to the probation report, defendant’s prior adult criminal record spanned a period of 22 years and included eight felonies, 11 misdemeanors, and six parole violations. The felonies included robbery (§ 211); sexual penetration by force, without consent, or of an underage person (§ 289); assault with a deadly weapon (§ 245, subd. (a)(1)); possession of cocaine base for sale (Health & Saf. Code, § 11351.5); possession of a controlled substance in prison (§ 4573.6); petty theft with a prior theft conviction (§ 666); and failure to stop at the scene of an injury accident (Veh. Code, § 20001). The misdemeanors included burglary (§ 459); battery (§ 242); petty theft (§ 488); vandalism (§ 594, subd. (b)); resisting or obstructing a peace officer (§ 148); and driving with a blood-alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b)).
Under Black II, this record is amply sufficient to support the upper term. Several of the aggravating factors the court relied on—numerous prior convictions, time in prison, being on parole at the time of the current offenses, and prior violations of parole—were related to defendant’s recidivism. At least one of these—numerous prior convictions—cannot meaningfully be distinguished from Blakely’s formulation, approving the use of “‘the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several. In fact, a description of numerous or increasingly serious prior convictions in the probation report and the prosecutor’s brief was just what the Supreme Court found adequate in Black II, rejecting the argument that this is not the same thing as the simple fact of a prior conviction:
“Defendant contends he was entitled to a jury trial on the aggravating circumstance of his prior criminal history because, even if the trial court properly may decide whether a defendant has suffered a prior conviction, a jury must determine whether such convictions are numerous or increasingly serious. Defendant, however, reads the ‘prior conviction’ exception too narrowly.” (Black II, supra, 41 Cal.4th at p. 819.)
In sum: Because the upper term was authorized by defendant’s prior convictions, the court did not err under Blakely and Cunningham in using the upper term as part of the calculation of the sentence for count two. We need not consider the People’s argument that Blakely and Cunningham do not apply in the first place here because the sentence was not an upper term but rather an indeterminate sentence with a minimum term partly based on the upper term.
Consecutive sentences
In Black I, our Supreme Court held that Blakely does not apply to a trial court’s decision to impose consecutive sentences. (Black I, supra, 35 Cal.4th at p. 1263.) The court reaffirmed this conclusion in Black II, stating that it was not undermined by Cunningham. (Black II, supra, 41 Cal.4th at p. 821.) In our original opinion in this case, we held that the imposition of consecutive sentences was constitutional under the rule of Black I. (People v. Johnson, supra, F046939 at pp. 50-51.) The Supreme Court’s reaffirmation of Black I on this point compels the conclusion that the trial court did not err in reimposing consecutive sentences on remand. For the reasons stated in our previous opinion, it makes no difference that consecutive sentences here were imposed under a special provision relating to sex crimes—section 667.6—rather than the general consecutive sentencing statute, section 669.
II. Multiple use of sentence-increasing facts
The facts that defendant kidnapped the victim and wielded a knife were used for several purposes in calculating the sentence. The base term of 25 years to life for count one was imposed pursuant to section 667.61, subdivisions (a) and (d). Subdivision (d)(2) calls for this sentence if the defendant kidnapped the victim and the movement of the victim substantially increased the risk of harm. Pursuant to section 667.8, subdivision (a), the kidnapping finding was also the basis of a nine-year addition to the sentence for count two. The knife-use finding was the basis of four-year enhancements on all three counts pursuant to section 12022.3, subdivision (a).
Defendant argues that these aspects of the sentence contravened section 667.61, subdivision (f). At all relevant times, section 667.61, subdivision (f), read as follows:
“If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).” (Former § 667.61, subd. (f) (italics added).)
Defendant claims the italicized text means that if a fact is used to impose a sentence under section 667.61, the same fact cannot be used to impose any other sentence or enhancement. He claims the court violated this provision because it employed the kidnapping and knife-use findings both to impose sentence under section 667.61 and to impose other sentences or enhancements.
We will assume that the court did use both the kidnapping finding and the knife-use finding to impose sentence under section 667.61 for count one. As we explained in our prior opinion in this case, under section 667.61, subdivision (d)(2), the court must find both that the victim was kidnapped and that the movement significantly increased the risk of harm. In finding that defendant kidnapped the victim and used a knife, the jury necessarily determined that the kidnapping significantly increased the risk of harm. (People v. Johnson, supra, F046939 at pp. 52-54, 56-57.)
Does this mean the court violated section 667.61, subdivision (f), when, for count one, it imposed a base sentence of 25 years to life pursuant to section 667.61, subdivision (d)(2), for committing forcible oral copulation by kidnapping with increased risk and a four-year enhancement for knife use pursuant to section 12022.3, subdivision (a)? We conclude that it does not. Section 667.61, subdivision (f), forbids (at most) the multiple use of “circumstances specified in subdivision (d) or (e).” The circumstance in question here is this: “The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense .…” (§ 667.61, subd. (d)(2).) The court did not employ this circumstance twice in imposing sentence for count one. The knife-use finding contributed to the finding of this circumstance here, but subdivision (d)(2) does not require a finding that the defendant used a knife or other weapon. That defendant increased the risk of harm by using a knife is a circumstance over and above the circumstance that he increased the risk of harm. Nothing in section 667.61, subdivision (f), precludes a sentencing court from using for another purpose a fact which, though contributing to the finding of a circumstance set forth in subdivision (d) or (e), goes beyond what is necessary to establish that circumstance.
The sentences imposed for counts two and three also do not conflict with section 667.61, subdivision (f). Section 667.61, subdivision (f), does not state that a circumstance used to impose sentence under section 667.61 for one crime cannot be used again to impose sentence for a different crime charged in a separate count.
III. Cruel or unusual punishment
Defendant argues that his sentence violates the prohibitions of “cruel and unusual punishment” in the federal Constitution (U.S. Const., 8th Amend.) and “[c]ruel or unusual punishment” in the California Constitution (Cal. Const., art. I, § 17). He cites the concurring opinion of Justice Mosk in People v. Deloza (1998) 18 Cal.4th 585. The defendant in that case, who had three prior serious felony convictions, received four consecutive three-strikes sentences of 25 years to life plus 11 years—a total of 111 years to life—upon conviction of two counts of robbery and two counts of attempted robbery. (People v. Deloza, supra, at p. 589.) The Supreme Court reversed and remanded because the trial court apparently believed it lacked discretion to order that the sentences run concurrently. (Id. at pp. 599-600.) Justice Mosk would have held that the sentence was cruel and unusual because it was impossible for any human being to serve it. (Id. at pp. 600-601 (conc. opn. of Mosk, J.).) He opined: “A grossly excessive sentence can serve no rational legislative purpose, under either a retributive or a utilitarian theory of punishment. It is gratuitously extreme and demeans the government inflicting it as well as the individual on whom it is inflicted. Such a sentence makes no measurable contribution to acceptable goals of punishment.” But it does, he continued, make “the judicial process appear oblivious to life expectancy tables.” (Id. at pp. 601-602 (conc. opn. of Mosk, J.).) Justice Mosk recognized that a sentence of this kind had the same operative effect as a sentence of life without parole, but apparently believed that the latter was not irrational and did not have the same degrading implications. (Ibid.)
Despite Justice Mosk’s opinion, defendant has cited no authority on the basis of which we could hold his sentence to be cruel or unusual. The sentence is effectively equivalent to a sentence of life without the possibility of parole, and defendant does not argue that a sentence of life without the possibility of parole would be unconstitutional in this case.
Defendant anticipates this conclusion by saying the Legislature knew how to provide for life without parole and decided not to do so for cases of this kind. This misses the point. The Legislature has provided for sentences so long that they are the same as life without parole by permitting a number of long prison terms to be imposed consecutively. Section 667.6, which was applicable in this case, permits (and in some cases requires) “a full, separate, and consecutive term” for each conviction of the enumerated sex crimes. (§ 667.6, subds. (c), (d).) Defendant has not presented any grounds to support a claim that the Legislature intended to prohibit sentences longer than a human lifespan resulting from the imposition of several long consecutive sentences. (See People v. Acosta (2002) 29 Cal.4th 105, 127 [rejecting argument that Legislature implicitly forbade imposing long sentence equivalent to life without parole by refusing to include life-without-parole provision in section 667.61].)
Defendant makes a series of additional assertions: Limiting the sentence to 25 years to life would not “endorse sex offenders” or “encourage” or “reward” sex crimes, and it involves an assumption of “omniscience and the hubris to say to a certainty that we know now what [defendant] will be like in 2025 or 2030, better than will the duly appointed parole authorities holding office in those years.” These assertions do not demonstrate that defendant’s sentence is unconstitutional. They have little to do with its constitutionality.
Defendant’s sentence passes constitutional muster under established standards. Under the California Constitution, punishment is cruel or unusual if, although not cruel or unusual in its method, it nevertheless is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) The cruel-and-unusual-punishment clause of the Eight Amendment of the federal Constitution also includes a “‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20.) A determination of whether a punishment is cruel or unusual because of disproportionality may be made based on an examination of the nature of the offense and the offender, “with particular regard to the degree of danger both present to society.” (In re Lynch, supra, 8 Cal.3d at p. 425; see also People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) With respect to the offense, we consider “the totality of the circumstances … in the case at bar .…” (People v. Dillon (1983) 34 Cal.3d 441, 479.) With respect to the offender, we consider his “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.) A proportionality analysis can also take account of punishments imposed for similar or greater crimes in other cases in California and other jurisdictions. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661.)
Defendant has not shown that his sentence constitutes cruel or unusual punishment according to these criteria. The current offense was an extremely serious one committed under circumstances that aggravated its seriousness, and the offender is a violent recidivist who has failed to remain crime-free, even while in prison, despite the application of multiple deterrents and the provision of multiple opportunities to reform. Defendant has made no attempt to show that his punishment is disproportionate in comparison with punishments for similar or greater crimes in this or other jurisdictions. For these reasons, we find defendant’s sentence not to be “grossly disproportionate” and therefore not cruel or unusual. (Ewing v. California, supra, 538 U.S. at p. 23; People v. Romero (2002) 99 Cal.App.4th 1418, 1431.)
IV. Court security fee
Defendant challenges the court’s imposition of $60 in court security fees, $20 for each count. He argues that, because the Legislature created this fee, which is set forth in section 1465.8, after he committed the crimes, the court improperly applied it to him retroactively. He contends that the imposition of the fee violated the antiretroactivity provision of section 3, as well as the ex post facto clauses of the state and federal Constitutions. We disagree.
Section 3 provides: “No part of it [i.e., the Penal Code] is retroactive, unless expressly so declared.”
Section 1465.8, subdivision (a)(1), provides:
“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.”
This statute was enacted and became effective in August 2003. (Stats. 2003, ch. 159, § 25; see note foll. 51A West’s Ann. Pen. Code (2007 Cum. Pocket Part) § 1465.8, p. 106.) Defendants’ crimes were committed in 1996. He was tried and convicted in 2004.
The question of whether section 1465.8 can be applied to convictions obtained after the section’s effective date for crimes committed before it, is pending before the California Supreme Court. (People v. Alford (2006) 137 Cal.App.4th 612, 619, review granted May 10, 2006, S142508; People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415.) We conclude the People have the better of the argument.
Imposition of the court security fee did not constitute an ex post facto punishment in violation of the state and federal Constitutions. We agree with the Court of Appeal’s analysis in People v. Wallace (2004) 120 Cal.App.4th 867, 874-878, in which it was held that this fee was not within the constitutional prohibitions on ex post facto laws because it is civil, not punitive, in nature. As the court explained, the Legislature expressed its intent to treat the fee as a civil imposition by stating that its purpose was to fund court security and by requiring, in the same piece of legislation, that specified civil litigants pay the fee as well as criminal defendants who are found guilty. The fee also does not have a punitive effect despite its nonpunitive purpose. (Ibid.)
This conclusion about ex post facto punishment does not, by itself, mean that section 3 permits the present application of section 1465.8. We acknowledge that, unlike the ex post facto doctrine, section 3’s ban on retroactivity does not distinguish between laws whose effects are civil and those whose effects are punitive. Section 3 prohibits retroactive application of all sections of the Penal Code, no matter how they are characterized, unless they expressly are declared retroactive. Section 1465.8 is not expressly declared retroactive, so section 3 prohibits its retroactive application.
The civil/punitive distinction is relevant, however, to the determination of whether a trial court’s action constitutes retroactive application of a law in the first place. Specifically, it is relevant to the question of whether the “event, transaction, or conduct … was completed before the law’s effective date.” (People v. Grant (1999)20 Cal.4th 150, 157.) A critical question for determining whether a law has been applied retroactively is what the last act or event was that was necessary to trigger application of the law and whether this act or event happened before or after the law became effective. (Ibid.) Should the conviction be considered the last event here, or was the completion of the offenses themselves the last event?
On the one hand, we would never hold that a law adding new punishment to an offense could be applied to crimes occurring before its enactment just because the conviction occurred after its enactment and constituted the completion of the transaction to which the new penalty attached. That approach would render section 3 nugatory. Conviction and sentencing under a new law obviously can only happen after the new law comes into existence, so treating the conviction or the sentence as the last act for retroactivity purposes would always defeat a section 3 retroactivity claim. That would mean that section 3 provided individuals with no protection from receiving punishments of which they had no notice when they committed their crimes. This cannot be correct.
Treating the conviction as the last event for purposes of retroactivity analysis is a different matter where the new provision only imposes civil liability, however. A civil exaction or regulation is not regarded as having retroactive effect just because it is imposed after the last opportunity for avoiding its effects. In Kizer v. Hanna (1989) 48 Cal.3d 1, for example, our Supreme Court considered a law under which the state could recover from a decedent’s estate an amount equal to all Medi-Cal benefits paid to the decedent during his or her lifetime. Jacob died two years after the law became effective. The state sought to collect from her estate an amount equal to all the benefits ever paid, including those paid before the effective date of the law. The estate’s executor argued that the state could only recover benefits paid after the law became effective. (Id. at pp. 3-4.) He contended that recovery of benefits paid earlier constituted retroactive application of the law, which was improper because the Legislature evinced no intent to apply the new law retroactively. (Id. at p. 7.) The Supreme Court held that recovery of all the benefits did not constitute retroactive application. (Id. at pp. 7-8.) The event that triggered the application of the statute was the arising of the decedent’s estate upon the decedent’s death, and this occurred after the law’s effective date. (Id. at pp. 8-9.) It made no difference that the law as applied meant Jacob’s estate was liable on account of benefits Jacob accepted at a time when she could not know of the consequences. (See id. at p. 17 (dis. opn. of Kaufman, J.).)
Kizer shows that, in the context of civil liability, it is permissible to treat as the last event for retroactivity-analysis purposes something that occurs after the liable party’s last chance to avoid the liability. Defendant here is in no worse position in this regard than Jacob or her executor in Kizer.
The conclusion that this is permissible does not, however, mean it is correct in this case. To answer that question we turn again to the words of the statute. Section 1465.8 states that the fee “shall be imposed on every conviction for a criminal offense .…” This language comports best with the conclusion that the Legislature conceived of the fee as an assessment on convictions, not an assessment on the underlying offenses themselves. If the Legislature had meant the latter, it could have imposed the fee on “every criminal offense for which the defendant is convicted,” for instance. To view the fee as an assessment on convictions, not offenses, is also consistent with the fee’s purpose of funding court security, as opposed to, say, law enforcement generally.
In sum: The last event for purposes of retroactivity analysis in this case was defendant’s conviction. Treating this as the last event is permissible because the court security fee imposes civil liability, not a criminal punishment. Treating it as the last event is appropriate because section 1465.8 specifically refers to the conviction as the event on which the fee is imposed. Defendant’s conviction took place after section 1465.8 became effective. Therefore, the imposition of the fee on defendant was not a retroactive application of the law and did not violate section 3. We need not discuss the People’s argument that defendant forfeited his claim on this issue by failing to make it in the trial court.
V. Section 294 restitution fine
Section 294, subdivision (b), provides:
“Upon conviction of any person for a violation of Section 261, 264.1, 285, 286, 288a, or 289 where the violation is with a minor under the age of 14 years, the court may, in addition to any other penalty or restitution fine imposed, order the defendant to pay a restitution fine based on the defendant’s ability to pay not to exceed five thousand dollars ($5,000), upon a felony conviction, or one thousand dollars ($1,000), upon a misdemeanor conviction, to be deposited in the Restitution Fund to be transferred to the county children’s trust fund for the purpose of child abuse prevention.”
Defendant argues, and the People concede, that the $1,000 fine imposed pursuant to this provision was unauthorized because the victim was not under the age of 14. We order it stricken.
DISPOSITION
The trial court shall strike the $1,000 restitution fine imposed under section 294, amend the abstract of judgment, and forward the amended abstract to the appropriate authorities. The judgment is affirmed in all other respects.
WE CONCUR: Harris, Acting P.J., Gomes, J.