Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA366769-01 of Los Angeles, Gregory A. Dohi, Judge.
Tamara Zivot, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Sean David Lust pled no contest to one count of cultivating marijuana. (Health & Saf. Code, § 11358.) Lust challenges fees imposed under Penal Code section 1465.8, subdivision (a)(1) and Government Code section 70373. Lust also challenges some conditions of his probation. We modify the conditions of probation. In all other respects, we affirm.
FACTS
Lust pled no contest to one count of cultivating marijuana in violation of Health and Safety Code section 11358. The trial court granted probation on the condition, among others, that he stay away from places where users, buyers and sellers of drugs congregate. In addition, the court ordered that Lust not own, use, have, buy or sell any controlled substances or associated paraphernalia without a prescription. The court imposed a $30 facilities assessment fee pursuant to Government Code section 70373, and a $30 court security fee under Penal Code section 1465.8, subdivision (a)(1).
DISCUSSION
I
Lust contends the trial court erred in imposing a $30 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1) (hereafter section 1465.8).
At the time Lust committed the crime, the fee imposed by section 1465.8 was $20. Prior to Lust's plea, the Legislature increased the fee to $30. (Stats. 2009-2010, 4th Ex. Sess., ch. 22, § 29, eff. July 28, 2009.) Lust argues imposition of the increased fee violates the prohibition on ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.)
In People v. Alford (2007) 42 Cal.4th 749, our Supreme Court rejected the defendant's argument that application of the fee to an offense committed prior to the effective date of section 1465.8 violated the ex post facto clauses. The court stated the ex post facto clauses of the United States and California Constitutions prohibit retroactively increasing punishment. (Id. at p. 775.) The court determined the security fee promotes public safety, not punishment or retribution. (Id. at p. 759.) Thus the fee is not subject to the ex post facto prohibition.
II
Lust contends the trial court improperly imposed a $30 facilities assessment fee.
Government Code section 70373, subdivision (a)(1) (hereafter section 70373) provides: "To ensure and maintain adequate funding for court facilities, an assessment 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 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. 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."
Lust argues section 70373 applies only to traffic offenses. But the section states the fine shall be imposed on "every conviction for a criminal offense, including a traffic offense." Clearly the section applies to convictions for every criminal offense. Thus it is properly imposed here.
Recently People v. Cortez (2010) 189 Cal.App.4th 1436 rejected Lust's argument. The court pointed out that the phrase "except parking offenses" in section 70373 should be at the end of the sentence. (Cortez, at p. 1441.) The sentence should read: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code, except parking offenses...." That is the only reasonable interpretation of the section. (Id. at pp. 1442-1443.)
Lust also argues the ex post facto prohibition applies to the fee. He points out that the effective date of section 70373 was January 1, 2009. (See Stats. 2008, ch. 311, § 6.5; People v. Fleury (2010) 182 Cal.App.4th 1486, 1489-1490.) He committed the offense in March 2008.
But the purpose of section 70373 is "[t]o ensure and maintain adequate funding for court facilities...." (§ 70373, subd. (a)(1).) The fee is not to punish the defendant. Thus the ex post facto prohibition does not apply. (See People v. Alford, supra, 42 Cal.4th at p. 759.)
III
Lust contends the "stay away" probation condition is vague and overbroad.
The trial court orally pronounced: "Sir, don't own, use, have, buy or sell any controlled substances or associated paraphernalia unless you have a valid prescription for it; [¶] You have to stay away from places where users, buyers or sellers congregate; [¶] Don't associate with anybody you know to be a controlled substance user or seller except in an authorized treatment program."
Lust argues the condition that he stay away from places where "users, buyers or sellers congregate" is unconstitutionally vague and overbroad. He points out that the condition does not specify users, buyers or sellers of illegal drugs, nor is it limited to places he knows users, buyers or sellers of illegal drugs congregate. The Attorney General concedes Lust is correct. The condition must be modified to provide Lust must stay away from places he knows users, buyers or sellers of illegal drugs congregate.
Lust also argues that the minute order listing the conditions of probation must be amended to conform to the trial court's oral pronouncement. The trial court orally stated, "Don't associate with anybody you know to be a controlled substance user or seller...." The minute order provides: "Do not associate with drug users or sellers...." The minute order does not include "anybody you know to be."
The probation condition ordering Lust to stay away from places where users, buyers or sellers congregate is amended to read: "Stay away from places where you know users, buyers or sellers of illegal drugs congregate."
The probation condition prohibiting Lust from associating with drug users or sellers is amended to read: "Do not associate with persons known by you to be illegal drug users or sellers."
In all other respects, the judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.